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

2. FOUR NEW SQUARE LINCOLN’S INN 2 Requirements for principle to apply (1) Existence of risks: Potential risks have been identified as resulting from a product or process or action (2) 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. FOUR NEW SQUARE LINCOLN’S INN 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. FOUR NEW SQUARE LINCOLN’S INN 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. FOUR NEW SQUARE LINCOLN’S INN 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)