Scientism, Legalism and Precaution: Regulating Nutrition and Health Claims in Europe

If it goes in the body, regulate it. If it exists outside the body, regulate that, too. Better safe than sorry, eh?
Announcing a new paper, with official title “Scientism, Legalism and Precaution — Contending with Regulating Nutrition and Health Claims in Europe” in European Food and Feed Law Review by Jaap Hanekamp and a bunch of others, including Yours Truly. Alphabetical list: Aalt Bast, William Briggs, Edward J. Calabrese, Michael F. Fenech, Jaap C. Hanekamp, Robert Heaney, Ger Rijkers, Bert Schwitters, Pieternel Verhoeven.

(Paper is due to be up today, but there may be delays.)

Regular readers will recall Hanekamp, who is the force behind this new paper, wrote a series of posts on precaution and the precautionary principle here (start with this one).

Abtract:

Europe’s push towards a single harmonised market that offers information on the benefits of foods is encapsulated in Regulation (EC) No 1924/2006, the Nutrition and Health Claims Regulation (NHCR). The NHCR will be the main focus of our contribution. Our contention is that this regulation not only stifles scientific research, limiting it to the relationship between nutrition and health, but also hinders Europe’s public health, especially with respect to the intake of micronutrients. We will analyse this with the aid of some aspects of the current state-of-the-art in the nutritional sciences.

Since I’m traveling these two days, some excerpts:

“We are not naïve with respect to the reality of authority in science, but authority as a rule is of a personal nature; in science there is no such thing as a ‘scientific high court’ that decides on issues of method and science. Such a form of legalism — the concept of strict adherence to law or directive — implicitly generated by the instatement of EFSA, — fosters scientism — that is the view that all real knowledge is scientific knowledge. The latter, at heart, stands for a self-defeating overestimation of what science is and can deliver.”

“Article 7 of the European Union’s General Food Law (Regulation 178/2002/EC) 30 defines precaution in terms of the uncertainty that a food or foodstuff may possibly cause harmful effects on human health.” And what foods or foodstuffs, we might ask, does this exclude? Can we think of any? “The scientism peddled by European regulation, in the final analysis, inevitability and poignantly gives a misleading picture of food science itself and its many findings.”

“A much more sensible approach is to respect the immense knowledge that we have gained especially during, say, the past 100 years and deal with the fact that the fundamental details of this knowledge still elude us to a considerable extent. That is a major pointer to the immense chemical complexity of food and the intricate ‘hidden’ connection between this everyday complexity and human health.”

“In the scientific pursuit of the clarification of the many-sided (pleiotropic) relationships between dietary patterns, foods and food components and human health, and the concomitant assessment and management of benefits and risks, it should be noted first that science is not in the business of delineating what is and what is not misleading. The term ‘misleading’ is legal in nature and not scientific…So, treating ‘deception’ as equal with the uncertainty that is inherent in the scientific quest for knowledge and insight is a serious category-mistake deeply embedded in the NHCR.”

13 Comments

  1. It seems like Europe is more paranoid about food regulation that the US, but that may not be true. I can think of many examples to the contrary. For example, pet dogs are allowed in French restaurants, but that would freak out US regulators.

    Also, “It’s easier to ship a bottle of wine from Bordeaux to Berlin than it is from Napa to Nashville.” (source)

  2. John,

    Interesting about the wine which, as anybody in the know will tell you, has more to do about cronyism than anything else. Distributors cozy up to government and write laws which give them monopolistic “rights”.

  3. In reviewing “Article 7 of the European Union’s General Food Law (Regulation 178/2002/EC) 30” the claims that this contributes to “scientism” is just plain wrong. The assertion of an adverse impact from so-called “scientism” seems far fetched and only defensible via selective quoting from the referenced documents; if that’s what one wants to see, then one can certainly find examples…but in actual broad context? Hardly an issue at all.

    Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 states, in part (see: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002R0178:EN:NOT ):

    (21) In those specific circumstances where a risk to life or health exists but scientific uncertainty persists, the precautionary principle provides a mechanism for determining risk management measures or other actions in order to ensure the high level of health protection chosen in the Community.

    (22) … It is necessary to ensure that consumer confidence and the confidence of trading partners is secured through the open and transparent development of food law and through public authorities taking the appropriate steps to inform the public where there are reasonable grounds to suspect that a food may present a risk to health.

    (34) Pursuant to the general principles of food law, the Authority should take on the role of an independent scientific point of reference in risk assessment and in so doing should assist in ensuring the smooth functioning of the internal market. It may be called upon to give opinions on contentious scientific issues, thereby enabling the Community institutions and Member States to take informed risk management decisions necessary to ensure food and feed safety whilst helping avoid the fragmentation of the internal market through the adoption of unjustified or unnecessary obstacles to the free movement of food and feed.

    ALSO, the EU regulation reviled in the abstract, “Regulation (EC) No 1924/2006, the Nutrition and Health Claims Regulation (NHCR)” is available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:404:0009:0025:EN:PDF A perusal of that document shows paragraph after paragraph that amount to requirements ensuring truth in advertising, etc. hardly inconsistent with what the US FDA has been doing for decades. The absence of such requirements Briggs et al are chastising would, for example, allow homeopathy & any number of so-called “snake oil” products be advertised as more & more beneficial than they really are

    (e.g., here’s a quote: “A claim that a food is high in fibre, and any claim likely to have the same meaning for the consumer, may only be made
    where the product contains at least 6 g of fibre per 100 g or at least 3 g of fibre per 100 kcal.” — LOTS of “scientism” there, eh?).

    Read the actual referenced documents and see for yourself what they actually say, or, just blindly believe whatever you want…

  4. Ken, although I am normally with you in calling out Briggs on his use of the term scientism I must support him on this misuse of science to support regulation of food production. Government regulation does not make the food supply safer (never has), as it only supports cronyism or Mercantilism. The free unfettered market is always superior as Briggs discussed in the Hayek article “The Pretense of Knowledge”.

  5. Government regulation of things such as food quality, as imperfect as it must be, is still valid. The EU regulations cited are designed to address conformity among relatively independent EU member countries — as such those EU regulations cannot be overly burdensome, more of an average.

    Sure, the free market is better at progress…but…that includes progress in ALL areas, and that includes corruption (e.g. ENRON, etc.). Upton Sinclair’s 1906 classic, The Jungle, describes such abuses.

    There IS a necessary place for SOME government regulation of much if not most commerce and there is no end of debate about how much is enough vs. too much.

    Where food is concerned quack remedies & nutritional supplements & so on are ripe for corruption and this persists. For example, the maligned EU regulations prohibit such things as a recent New Age craze in the US, ORMUS, which is bypassing the usual avenues for distribution:

    http://www.ormus-alchemy.com/
    http://www.youtube.com/watch?v=WFutp0_l7H4
    http://www.arttarbi.com/
    http://www.consciouslifeexpo.com/..feb-13-lectures/feb13-l-aura-imaging.html

    The “scientism” called out here is the same as the sort of anti-science science applied by New Agers and all manner of quacks — including the purveyors of Ormus.

    The fundamental error undertaken is the extreme position — find an example or a few from some fringe element and extrapolate that to its illogical conclusion, then, apply that distorted perspective…force-fitting it when necessary. It’s an emotional response masquerading as objective. And, sadly, its going to be consigned to & marginalized at the same lunatic fringe from whence it was inspired.

  6. “The fundamental error undertaken is the extreme position — find an example or a few from some fringe element and extrapolate that to its illogical conclusion, then, apply that distorted perspective…force-fitting it when necessary.”

    Wouldn’t the use of “Ormus” or “The Jungle” as a justification for regulating trade be thwarted by that same criticism? Likewise, isn’t dismissal of an argument on the grounds of the fact that certain other unseemly people use it a manner of ad hominem fallacy? A blanket rejection of regulation based on the fact that it can and has been used for cronyism certainly isn’t *less* valid than a blanket apology for regulation based on the fact that it has been used to combat real problems. These sorts of arguments suffer from a distinct unwillingness to discuss real principles. Which objects ought a man be punished for exchanging with a willing and informed partner in trade? What about rights? To you-know-where with utility.

  7. RE: “anti-science science” being an oxymoron.

    Probably/could be.

    I was using it in the sense, here, of Philosopher Daniel Dennett’s response to criticism of his book, Breaking the Spell: Religion as a Natural Phenomenon, where he said: “when someone puts forward a scientific theory that religious critics really don’t like, they just try to discredit it as ‘scientism.'”

    In some areas one finds a curios blend of science, or science-like logic, used to discredit the idea of science…here in this blog, for example.

    It’s a reflection of a kind of all-or-nothing sort of thinking: science isn’t good for some things, so, let’s reject it outright. That instead of some truly objective logic, such as, use science where science can be used and not where it can’t.

    Almost without fail, when one sees that game being played there’s a cherished belief or value under attack by the thing being discounted. Rather than address facts, such an individual puts on the blinders to ensure they can maintain the belief they want (self-imposed ignorance)…all while pretending to be diligently searching for some truth. Here we have a statistician dismissive of science, which is in & of itself interesting. He’s given use a powerful clue that this is in fact underway:

    Consider: Winner Announced in What Do You Call A Believer In Scientism Contest. At: http://wmbriggs.com/blog/?p=10145
    Winner Announced in What Do You Call A Believer In Scientism Contest.
    Last week we asked what is the best word or term for a die-hard believer in scientism?
    Winner –Scidolator.

    It was great fun…but…curiously omitted was any mention of an obvious fact: the answer has been in the public domain for decades!

    Scientismist, by the way (pop that in a search engine & many links with “scientism” arise (not so with scidolator; though the latter is a better term, all else being equal); or, check Wiki’s references going back to 1967 with this term: http://en.wikipedia.org/wiki/Scientism .

    Why didn’t anyone note that up front? Because they didn’t want to find THE answer (which goes beyond a label), they want to find the answer they want.

    What we can observe here is an ongoing case study of one’s perception of cherished beliefs (and we don’t need to know precisely what they are) under assault by science met by a concerted effort to concoct an alternative reality that isn’t so hostile to those beliefs. Part of that effort is the need to reject science to some extent (using precisely the same self-deceptive tactics that New Ager’s do so well with things like Ormus, The Reconnection, and so on & so forth — a curious mix of philosophy often interwoven with references to seemingly related scientific principles that are actually disconnected from the topic addressed, though that disconnection is not readily apparent as a connection is implied [i.e. that by talking about those principles an aura of credibility [“halo effect”] is shone on the nonsense of interest]). Ultimately, it’s a losing battle — either the belief is modified, or, worse, the self-deceptions succeed & the false belief is retained [under the banner of “truth”].

    The last paragraphs of the quoted paper are also illustrative in their rejection of science based on inevitable uncertainties. Regardless of what we don’t know & understand, we do know of ways that lead to a desired end-result (& those ways arise from science). The US FDA’s website’s warning letter archive gives tons of examples where underlying science was obviously applied — science that some would like to reject?!?!: http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/default.htm

    In practice, for the vast majority of situations/cases, science is applied to the extent to which it can be. And adjustments get made with new information. Why isn’t that the better approach than rejecting it?

    Put another way, where science can give a clear answer, why is that inferior to philosophy or something else?

  8. “In practice, for the vast majority of situations/cases, science is applied to the extent to which it can be. …where science can give a clear answer, why is that inferior to philosophy or something else?”

    It seems you’re assuming the very point in question, namely, the Scidolater’s claim that the rejection of scientism is a rejection of science per se. You’re assuming that the points in question are matters in which “science can give a clear answer” – that the question of whether a man ought to be legally permitted to exchange unprocessed milk for money is intrinsically scientific. Instead of explaining the flaws in the argument put forth, you employ Bulverism, claiming that “What we can observe here is an ongoing case study of one’s perception of cherished beliefs (and we don’t need to know precisely what they are) under assault by science met by a concerted effort to concoct an alternative reality that isn’t so hostile to those beliefs.” Nobody cares why you think your opponents came to the wrong conclusion. We’d rather hear why you think it’s the wrong conclusion in the first place, preferably by means of addressing any arguments for that conclusion they put forth.

  9. Hi, check out this earlier try at introducing a bit of common sense into the health claims debate:
    Leathwood PD, Richardson DP, Strater P, Todd PM, van Trijp HCM (2007) Consumer Understanding of Health Claims: Sources of Evidence British Journal of Nutrition 98: 1–12
    Abstract:
    Provided that they are scientifically substantiated, nutrition and health (NH) claims linked to food products can help consumers make well-informed food choices. The new European legislation on NH claims made on foods entered into force on 19 January 2007. The law sets
    out conditions for their use, establishes a system for their scientific evaluation, and will create European lists of authorised claims. An important aspect of this proposed legislation is that it states, in article 5.2, ‘the use of nutrition and health claims shall only be permitted if the average consumer can be expected to understand the beneficial effects expressed in the claim’. The present review examines consumer understanding of NH claims from a consumer science perspective. It focuses on the type of data and information that could be needed to provide evidence that the average consumer adequately understands a particular NH claim. After exploring several different methodologies, it proposes a case specific approach using a stepwise procedure for assessing consumer understanding of an NH claim.

  10. Ken, I knew that you would bring up Sinclair and so I was ready. Read the following:

    http://wiki.mises.org/wiki/Meat_packing

    Things are rarely as people think they are. As for Enron try this:

    http://mises.org/daily/872/

    You speak of some sort of optimal balance in government regulation as if we were presently near this happy state. The reality is that the tsunami of regulation has gone beyond the ability of individual comprehension and is a cudgel used to restrict trade in favour of the privileged few. I wish that there was only SOME government regulation but an enormous reduction in the present level is necessary to reach the level implied by SOME. The best protection against quacks is the free market where I am not obliged to either use or avoid the product and could publicly support or condemn it without interference. The state is just as likely to support the quacks as not, as experience has shown.

    As you know, I agree with you about the misuse of the term scientism but see that as irrelevant to the present issue.

  11. Major Briggs ==> Any chance of a .pdf copy of the paper? This is one of my interests. (Not up ay EFFL yet today).

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