The Application and Boundary of Precautionary Principle in Risk Regulation ─ Regulating Electronic Cigarette as an Example
Date Issued
2016
Date
2016
Author(s)
Chen, Chia-chi
Abstract
Since the products derived from commercialization of scientific research achievement are usually devoted into our daily life without corresponding mechanism for safety evaluation and appropriate regulation, it is quite a challenge for decision makers to strike a balance between the harmful effect possibly undertaken by people and the boundary of the right to regulate. In addition, the continued evolution of cutting-edge science and technology applied in the above products, which often transcend the imagination of decision makers, would also make the evaluation of safety and possible harm much harder than ever. This article intends to elaborate and analyze the above issue from the aspect of “risk” instead of the debate of the existence of real harm. In other words, the author would focus on the present circumstance, which involved the factor of risk and discuss whether or how to regulate the risk posed by the above products. And “precautionary principle” which has been frequently mentioned in the field of environmental risk and the corresponding regulation would be the main approach of this article when dealing with the issue of risk. To apply precautionary principle in the issue of regulating above products and invoke it as a criterion to determine whether the measures adopted by the decision maker are appropriate, this article would also be devoted to the abstraction of precautionary principle by analyzing its essential meaning and generalizing the experiences of past applications. Additionally, in order to elaborate and demonstrate the core of this article in a more precise way, the author would take the regulation of electronic cigarette (hereinafter “e-cigarette”) as an example. To apply the precautionary principle in the regulation of e-cigarette, the following manuscript would be started from the characterization of e-cigarette and the risk derived from it; then consequently respond to the controversy over the application; and discuss the detailed application by the prerequisite and legal boundary addressed by the author in this article. Further speaking, since both the health effect derived from e-cigarette on the user and non-user and the possible influence on the implementation and continuity of tobacco control measures have not yet been confirmed or eliminated by scientific evidence, the risk derived from e- cigarette could be characterized as “the risk with scientific uncertainty”. And the damages caused by the realization of the risk derived from e-cigarette would also be substantial. Hence, the risk derived from e-cigarette indeed fit in with the prerequisite of applying precautionary principle generalized by this article, which are “the risk with scientific uncertainty” and “the damages caused by the realization of risk are substantial”. With regard to the legal boundary of its application which is the scrutiny of the principle of proportionality, the author is of the view that most of the measures adopted by individual countries are within the legal boundary of applying precautionary principle and could be justified by the application of precautionary principle, even though the category and intensity of the regulation are diverse. However, “the total ban approach” which advocate the completely elimination of the risk with scientific uncertainty is not pass the examination of the necessity test included in the principle of proportionality and could not be justified by the application of precautionary principle.
Subjects
precautionary principle
principle of proportionality
risk
risk regulation
products with new-developed risk
electronic cigarette
tobacco control
WHO Framework Convention on Tobacco Control (FCTC)
SDGs
Type
thesis
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