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Protecting Public and Planet: Environmental and Health Regulation in the United States and the European Union. Mitchell P. Smith The University of Oklahoma. Environmental and Health Regulation. chemicals. Environmental and Health Regulation. autos recycling. - PowerPoint PPT Presentation
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Protecting Public and Planet: Environmental and Health Regulation in the United States
and the European Union
Mitchell P. SmithThe University of Oklahoma
Environmental and Health Regulation chemicals
Environmental and Health Regulation autos recycling
Environmental and Health Regulation health claims
The United States:Environmental and Health Regulation in the 21st century
Rigor of Regulation
Time
The European Union:Environmental and Health Regulation in the 21st century
Rigor of Regulation
Time
The U.S. and the EUDiverging Trajectories
Rigor of Regulation
Time
U.S.
EU
Diverging U.S. and EU Trajectories
WHY?
Explaining Diverging U.S. and EU Trajectories
Culture?
Europe: Precaution and Cultural Aversion to Risk
• BSE (“mad cow” disease)• dioxin in beverages, poultry, eggs (1999)• preference for “traditional” foods (no GMOs)
Evidence Against Cultural Argument:The U.S.
• high level of precaution displayed in past regulatory policy (health claims on food labels)
• policy toward tobacco consumption• restrictions on blood donations from people
exposed to BSE beef• regulation of nitrogen oxides from diesel
vehicles
Explaining Diverging U.S. and EU Trajectories
State-Market balance?
State-Market Balance ArgumentAmerican liberal capitalism vs.
state-centered European dirigisme
Political economy of US => regulatory structures give primacy
to free competitionEurope’s coordinated capitalism => constrains market exchange in
favor of public goods
State-Market Balance ExplanationArguments Against
• European market has favored intensification of market competition
• EU concern with regulatory burden on industry (regulatory impact assessment)
• Policy discourse over regulation in EU closely resembles that in the U.S.
Court Decisions?
U.S. courts => high evidentiary standards (on FDA,
e.g.) free commercial speechECJ => follows this pattern free commercial speech, proportionality
Industry Lobbying?
Industry Lobbying?
power of industry lobby in U.S.
organizational resources access to policy making
Industry Lobbying?
power of industry lobby in U.S. . .
and
relatively greater access of environmental interest associations in the EU
Industry Lobbying?No
U.S.=> court decisions have trumped lobbying
EU => rising industry access
Rising Industry Access in the EU
increased legislative powers of EP => more industry resources invested in lobbyingaccess via Internal Market Committee (2004;
6th EP) and political groupsCompetitiveness Council (2002)
What then?
If not cultural attitudes toward risk, national political economies, court decisions, or industry lobbying?
Rigor of Regulation
Time
U.S.
EU
Institutions and Regulatory Tradeoffs
The Regulatory Dilemma in the US:
competitiveness regulatory objectives
vs.The EU’s Regulatory Trilemma:
The Regulatory Dilemma in the U.S.
Outcomes include:Voluntary regulation (TRI)Regulatory “preemption”
competitiveness regulatory objectives
The EU’s Regulatory Trilemma
EU Regulation: Harmonizes standardsIntensifies cross-border exchangeFosters interest articulation at EU level
Implications of Court Decisions
In U.S., court decisions constrain federal regulatory ambitions
In the EU, court decisions define areas where single market regulation is incomplete
Illustrating the Argument: health claims
Case demonstrates:(1) history of precaution in U.S. (2) contrasting role of court decisions(3) rising industry lobby in EU
US Regulatory Regime
1906-mid 1980s: health claims as implied drug claims (hence no claims)
In 1990 industry lobbying leads to Nutrition Labeling and Education Act (effective 1993 and largely a response to diffuse actions by states)
No preemption by states“significant scientific agreement” standard1993: only 7 claims permitted; 5 more by 2001
US Regulatory Regime
Landmark 1999 court case: Pearson v. ShalalaProportionalityFree commercial speechNote parallel to ECJ rulings in early 2000s (which
similarly struck down national laws regulating health claims on the grounds that they were excessively restrictive and disproportionate to the objectives sought).
US Regulatory Regime
post-Pearson v. Shalala
FDA endeavors to sustain its regulatory approach to health claims on foods
US Regulatory Regime
Subsequent court cases in 2000s (e.g., Whitaker v Thompson
I, 2002):FDA too restrictiveHas FDA considered all available evidence?Why not a disclaimer?“qualified claims” based on “credible scientific
evidence” or “some scientific evidence”Welter of claims (first approved claim July 2003:
unsaturated fats in tree nuts => reduced risk of heart disease)
Yet FDA continues to exercise enforcement discretion
US Regulatory Regime
By 2010, following Alliance for Natural Health v Sebelius:
Burden on FDAMinimally restrictive disclaimersShow disclaimer would confuse consumers
US Regulatory Regime
Distinction between rules for dietary supplements and rules for foods breaks down
=
US Regulatory Regime:The Result
EU Regulatory Regime
Wide variation through 1990s:Austria highly restrictiveVoluntary codes in Sweden and UKCase by case approach in Germany and France
EU Regulatory Regime
ECJ decisions in early 2000s:1975 Austrian LMG (2003)Douwe Egberts (2004)Parallel to U.S. decisions: proportionalitySimilar impact on national regulatory regime
EU Regulatory RegimeHowever, institutional dynamics differ from US:Business sector wants legal certainty (as in U.S.)European Commission: barrier to free
movement of foodstuffsDG SANCO: barrier to high level of consumer &
public health protectionNational health ministers want to reclaim
regulatory control
EU Regulatory Regime: The Result2003 Commission proposal:Disease reduction claims subject to EFSA
approvalNutrition profiles
EU Regulatory Regime: The ResultIndustry lobbying: impact on innovation and
competitivenessEP cuts nutrition profiles in first readingNational health ministers restore nutrition
profilesRegulation on Nutrition and Health Claims on
Foods enters into force January 2007
European Parliament Second Reading Debate
”. . . the tenacious lobby of food and particularly the drinks industry has not been as effective this time around;” could the EP second reading vote be attributed to the fact that "Members are simply embarrassed . . . that for once, the Council was more progressive than Parliament?” -- Dutch MEP Kartika Tamara Liotard, European United Left
”. . . we have nothing to gain from European law being drafted at the International Sweets and Biscuits Fair in Cologne.” -- Frédérique Ries, French Liberal Democrat MEP
EU Regulatory Regime: The ResultIndustry lobbying continues:More than 44,000 proposed claims submitted
to Commission and forwarded to EFSA by Jan. 1, 2008
EP seeks to remove nutrition profiles in 2010Committee passes this amendment; tie vote
(309-309) in plenary