Food In Canada


Food Law: The precautionary principle is not the answer

Food safety regulators cope every day with applying science-based standards to complex fact situations. The task is tough enough when the science is relatively certain but when the science is not so clear – and this is far more common than is generally recognized – then the regulator faces a truly daunting challenge. In recent years, the precautionary principle has emerged as a recommended approach to deal with uncertain science in a range of public health areas, including food safety.

The Gage Canadian Dictionary defines precaution as “taking care beforehand.” This sounds like the simple common sense aphorism of “better safe than sorry.” But the concept has proven to be more complicated than that: the Swedish philosopher Sandin has recently documented no less than 19 definitions of the precautionary principle in various treaties, laws and academic writings.

Beyond the definitional difficulties, the precautionary principle has another fundamental flaw: it can be used to support any side of an issue because it is all in how you define the hazard. If the hazard of DDT, for example, were a possible threat to the environment, then the application of the precautionary principle would be to ban the product until the science is clearer. If the hazard is malaria-causing mosquitoes and the million persons killed (and the 300 million made seriously ill) by malaria each year then wouldn’t the principle support taking action to continue to use the product until the science is more certain? A principle that is this malleable cannot be a reliable guide to decision making, but it is still often used as a justification for a decision taken for other reasons.

I was reminded of this when reading recent articles reporting an Irish study that reviewed the growing body of research showing a link between high intakes of folic acid and a possible increased risk for colon cancer.

I was a food regulator in the mid-1990s when research began to show that neural tube defects (NTDs), such as spina bifida and anencephaly, could be significantly reduced if pregnant women took folic acid supplements. Before resorting to mandatory food fortification, Health Canada, concerned about the health hazard to the general population, applied the precautionary principle and sensibly began a pilot project to determine if there were any adverse effects associated with food fortification, especially for the vast majority of Canadians who would receive no benefit. Concerned about the children with NTDs, the U.S. decided they could not wait, applied the precautionary principle and made fortification of white flour with folates mandatory. For trade and political reasons, Health Canada rushed through a similar regulation, effective Nov. 1, 1998. This is our law today. (Applying the same precautionary principle, Britain and Ireland declined to require mandatory fortification.)

Ron Doering

Ron Doering

Ron is counsel in the Ottawa offices of Gowlings, and is a past president of the Canadian Food Inspection Agency.
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