“The scientists made me do it” – the latest ‘Food in Canada Magazine’ food law column by Ron Doering

“One of the enduring myths of regulatory practice is that science and policy can and should be separated,” says Ronald L. Doering, a past president of the Canadian Food Inspection Agency, counsel in the Ottawa offices of Gowling WLG, and adjunct professor, Food Science at Carleton University in his latest ‘Food in Canada’ column. “We see this fiction playing out every day on the news as we get our daily COVID-19 briefings. Is it any wonder the public is confused about who is making decisions and whether decisions are based on science or on the basis of non-science considerations? Of course, it is both and that is the way it is supposed to be. Science, policy and politics cannot be separated: they are inextricably intertwined.

Scientists often resent politicians or their senior advisers for daring to question their science advice, for politicizing their “neutral” science with non-science considerations. The myth is that all decisions must be solely “evidence-based” but this whole concept is flawed. It is the legitimate and necessary role of elected politicians to take the science-based risk assessment and then carry out the policy-based risk management function by weighing the social, political, economic, legal, ethical and environmental factors in order to arrive at the appropriate regulatory decision.

And even the risk assessments are replete with non-science considerations. As Covello and Merkhofer have clearly shown: “in practice, assumptions that have policy implications enter into risk assessment at virtually every stage of the process. The idea of a risk assessment that is free, or nearly free, of policy considerations is beyond the realm of possibility.” Scholars such Harvard’s Sheila Jasanoff have long ago shown that “studies of scientific advising leave in tatters the notion that it is possible, in practice, to restrict the advisory practice to technical issues or that the subjective values of scientists are irrelevant to decision making.” This is especially true for public policy issues where the science is uncertain and competing with so many other value-laden factors. We regularly have what Henrik and Jamieson have described as “the imprimatur of science being smuggled into deliberations that actually deal with values and politics.” That scientists should dress up their science advice as pure “neutral” science is understandable. As Roger Paelkhe has pointed out, “for those with scientific expertise, it consequently makes perfect sense to wage political battles through science because it necessarily confers to scientists a privileged position in political debate.”

And if the science is so neutral, the public wonders, how do you explain duelling scientists? As I write this, the Declaration of a very esteemed group of scientists is being described by an equally esteemed group as “a dangerous fallacy unsupported by scientific evidence.”

Politicians and their senior officials are often happy to maintain this confusion and blurring of accountability, happy to hide behind the myth that they are just slavishly following the advice of their experts. Just as we have heard much about the fear of politicization of science, we now have what I’ve called the “scientization” of politics. I once had a minister faced with a tough decision that was his to make under the statute, say to me (with apologies to the American comedian Flip Wilson) “Ron, I don’t want to be seen as making the decision. I just want to be able to say ‘It’s not my fault, the scientists made me do it… the scientists made me do it.’”

What should be the acceptable level of PCBs in farmed salmon? What should be the appropriate mix of rules to prevent the importation of BSE into Canada? What is the right regulatory regime for the approval of genetically-modified traits in seeds? What is the safe level of BPA in water bottles? How should the level of salt in processed food products be regulated? Should it continue to be illegal to sell raw milk? What should be the necessary rules for the storage of high-level nuclear waste? These are just a few examples of the kind of science-based public policy issues with which I was directly involved in the last 30 years either as a regulator or a lawyer acting for a regulated party. In all these cases, the science was relevant but not determinative. And, interestingly, in all these cases the parties argued that the basic question was one of science: if only we could get the science right, the public policy answer would follow. If only the world were that simple.

My food science students seem genuinely unaware that science-based health risk assessments are replete with policy considerations, that in the real world of regulatory practice you cannot separate science, policies and politics — yet, as we have seen so often in this the year of COVID-19, so much of our public discourse is dominated by the quaint Utopian view that they can, and should, be strictly separated.

Ronald L. Doering, is a past president of the Canadian Food Inspection Agency. He is counsel in the
Ottawa offices of Gowling WLG, and adjunct professor, Food Science, Carleton University. Contact him at
Ronald.doering@gowlings.com