November 28, 2016
Given the sensitivity of the issue, I have to be careful and begin by stating that I have no interest, direct or indirect, with any of the players in this dossier which combines all the flaws of today’s EU governance: no objective science, full-on op between NGOs and industry, and an incomprehensible process.
The book Intoxication by the ‘green’ journalist Stéphane Horel, defines endocrine disruptors (EDs) as “organisms that enter into the hormonal system of humans and animals and can potentially disrupt complex biological mechanisms to the point of affecting the human or animal’s health”. The definition could not be less clear!
While rules have been adopted in the past to ban or limit access to phthalates, PCB or Bisphenol A, the issue here is whether or not to regulate/ban thousands of substances. This is the view of HEAL (Health and Environment Alliance), an NGO following the issue. Industry is totally against it, highlighting the exorbitant cost (believed to be higher than €1 trillion) and the EU’s isolation on the topic compared to the United States where it is not an issue.
Science held hostage by all parties
Faced with this situation made possible by an extensive application of the precautionary principle, you would think that the science can decide it. But NGOs reject science-based policy-making. Analysis by EFSA and a subsequent impact assessment have only deepened opposition between NGOs and industry, who accuse each other of the worst evils.
Many other examples show how the EU system is not working and that it should be aligned with that of the US Food and Drug Administration. The European food sector is avoiding all the scientific progress being made everywhere else around the world.
The confusion has also infected the Commission, where the file was entrusted to DG Environment (to the great satisfaction of NGOs and displeasure of industry). DG SANTE got involved, then the Secretariat-General intervened to mediate disputes between the two DGs, all against the backdrop of alleged collusion, virulent opposition, insoluble talks and no objectivity on any side.
The relationship between industry and NGOs is a perfect example of what should not be done, with entrenched positions and mutual intolerance. Well-organised NGOs accuse companies of devoting limitless resources to scupper the proposals, while industry (despite spending millions of euros) seems unable to rise above the conflicts and focus on the scientific evidence.
Three Institutions, two legal bases, one total mess
In reality, it was MEPs and Member States who envisaged regulation of EDs in two separate acts: the first on pesticides adopted in 2009, and the second on biocides in 2012. In other words, two texts required criteria for defining EDs.
But the first of these regulations was adopted in the pre-Lisbon period, under the regime of the Regulatory Procedure with Scrutiny which involves comitology committee composed of national experts; the second, adopted post-Lisbon, envisages a delegated act, which the Commission can prepare and adopt with no need for committee scrutiny! The 2009 regulation on pesticides was supposed to be aligned to post-Lisbon secondary legislation, but this process has stalled.
The Commission is aware of the need for a middle way, but cannot impose it due to lack of authority. This is why it failed to respect its obligation to propose scientific criteria for EDs by 14 December 2013, instead buying time and bypassing the deadline. This led Sweden to go to the Court of Justice, which condemned the Commission for failure to act. With its back against the wall, it had to act.
It is hard to imagine such chaos from the top to the bottom of the chain of command! Commission control over a sensitive file, the precautionary principle, neutrality of agencies, NGO/industry conflicts, alignment of secondary legislation: everything needs to be looked at as soon as possible. Time is being lost, frustration and misunderstanding increases, maladjusted procedures persist. What a huge waste!Daniel Gueguen