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The Misapplication or Non-Application of the Precautionary Principle

This article by Leigh-Ann Mulcahy examines the misapplication or non-application of the precautionary principle, discussing the requirements for the principle to apply, the philosophy behind it, problems with its application, and its consequences. The text explores the existence of risks and scientific uncertainty, highlighting the common sense appeal of "better safe than sorry" and the importance of risk assessment and management. It questions whether the principle should be a binding legal norm or a policy guideline, its scope, and the lack of common understanding of its meaning and application. Consequences such as impacts on risk evaluation, manufacturer burden of disproving risks, and increased risk of liability are also discussed.

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The Misapplication or Non-Application of the Precautionary Principle

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  1. FOUR NEW SQUARE LINCOLN’S INN The Misapplication or Non-Application of the Precautionary Principle Leigh-Ann Mulcahy

  2. Requirements for principle to apply • Existence of risks: Potential risks have been identified as resulting from a product or process or action • Scientific uncertainty: Because of insufficiency of information or understanding it is impossible to determine the existence of or to quantify the extent of the risk in question

  3. Philosophy behind principle • Common sense appeal - “better safe than sorry” • Safety/elimination of risk (cf. – public expectation of safety in Product Liability Directive) • Risk assessment/management

  4. Problems of its application • Binding legal norm (EC/international customary law) or a policy guideline? • Scope? Environmental policy Art 174(2) EC Treaty -> consumer protection and human health issues generally • No common understanding of its meaning/ application • Too much discretion left to regulator?

  5. Consequences • Impact on risk to benefit evaluation • Result may be other (greater) risks (e.g. MMR) • Manufacturer - burden of disproving risk • Increased risk of liability/JR of regulator • Non-application – use as ‘sword’? (cf. ex p. Duddridge)

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