by David Vogel. Princeton and Oxford: Princeton University Press, 2012. 336pp. Cloth $39.50. ISBN: 9780691124162.
Reviewed by Herschel Nachlis, Department of Politics, Princeton University. Email: hnachlis [at] princeton.edu.
In February of this year, an American food blogger posted a petition urging the Subway sandwich chain to “stop using dangerous chemicals in your bread.” The appeal cited Subway’s practice of conditioning its dough in the United States with azodicarbonamide, a compound banned in Europe as a food additive and commonly used in yoga mats and shoe rubber to increase elasticity. Within a few days, over 60,000 people had signed the petition. Later that week, Subway announced that it would stop using the chemical in its US stores.
As Subway emphasized when announcing the change, “Azodicarbonamide is fully approved for use in bread by the United States Food and Drug Administration (FDA).” The FDA deems the chemical “a safe food additive when used for the purposes and at the levels specified in the FDA regulations,” because the existing scientific data on azodicarbonamide show minimal harmful carcinogenic and respiratory effects in small quantities. Yet as the original petition and most media reports noted, the European Union, based on the same data, made the opposite policy choice. Unlike the FDA, EU regulators in 2004 found that in light of “the remaining scientific uncertainties it is appropriate, in order to achieve the high level of health protection chosen in the Community, to suspend the use of azodicarbonamide.”
In THE POLITICS OF PRECAUTION, a masterful addition to UC Berkeley Business and Political Science Professor David Vogel’s nearly four decades of scholarship on regulation, business, and politics, Vogel explains how, why, and to what effect a broad divergence in US and EU regulatory practices emerged, a divergence that can lead to contrasting regulatory decisions, like the choices governing azodicarbonamide, in the face of similar risks and evidence. Vogel examines US and EU regulation of significant health, safety, and environmental risks caused by business from 1960-2010, while focusing attention on the differences in US and EU regulatory policy since around 1990. He advances an account in which, from the 1960s through the late 1980s, important health, safety, and environmental risks were more likely to be regulated strictly by the United States, whereas since about 1990 the EU has taken the lead and the US now lags behind. In this account, the US has grown increasingly committed to a regulatory regime in which safety is presumed unless there exists clear evidence of harm, uncertainty is not a legitimate basis for regulation, and [*136] regulators seek to avoid false positives or Type I errors (overregulation). Meanwhile, the EU has surpassed the US in its regulatory stringency by basing its decisions on the “precautionary principle,” a guideline that compels regulation in the face of scientific uncertainty and directs regulators to avoid false negatives or Type II errors (underregulation). Three factors are offered to account for these shifts: public opinion and risk perceptions, the preferences of influential policymakers, and risk assessment criteria. Offering a range of evidence and a crisp argument, Vogel’s volume is an important and provocative resource for scholars, students, and practitioners interested in regulatory policy, postwar institutional development in the US and EU, and the political factors that drive the complex and far-reaching decisions about political constraints on business practices.
Chapters about four sets of cases – food safety and agriculture, air pollution, chemicals and hazardous substances, and consumer safety – demonstrate the argument. These sections are efficient and persuasive, and Vogel’s “big picture” (p.3) narrative remains compelling across the cases studied. Cases that diverge from the main argument – including stringent regulation of health-related automotive pollutants in the US, and policy convergence on pharmaceutical regulation – are readily acknowledged, as is the substantial revision that THE POLITICS OF PRECAUTION makes to Vogel’s earlier argument that the US and Great Britain exemplify different and possibly invariant “national styles of regulation” (Vogel 1986). The introductory materials carefully walk through and reject a range of plausible alternative explanations for the documented transatlantic divergence in regulatory practices. Points of potential interest outside of the book’s central arguments are also highlighted, including the impact of early statutory text on later decision-making (particularly Chapter 3’s discussion of the Delaney Clause and carcinogens), the EU’s emergent global regulatory leadership, and the role that US states (particularly California) play in filling the US federal regulatory vacuum.
The book’s central puzzle, though, remains the “discontinuity in health, safety, and environmental risk regulations that took place on both sides of the Atlantic after around 1990” (p.219), and especially US regulatory weakness. Before 1990, for example, Republican Presidents Nixon and Reagan worked with their Democratic counterparts in Congress to pass the 1970 Clean Air Act Amendments and ratify the 1987 Montreal Protocol, and Presidential nominees from both parties competed over their respective environmental credentials (pp.103-6). Yet after 1990, as the EU consistently adopted new regulations that were stronger than their US counterparts from the 60s, 70s, and 80s, American policymakers failed to update and strengthen regulations (p.231). By documenting such significant “drift” in regulatory policy, Vogel supplements other important accounts of drift that tend to focus on social policy (Hacker 2004; Streeck and Thelen 2005).
But while it seems clear that public opinion, policymakers’ preferences, and risk standards explain these changes, and while the book recognizes the nuances of [*137] how these factors’ interactions and weights vary across cases, by treating these factors as independent of one another, the story becomes somewhat less clear than it could be. Based on the evidence presented, one could argue that these three explanatory factors really reduce to one: the preferences of influential policymakers. If these policymakers themselves are the primary shapers of public opinion and risk standards, then the strong regulatory preferences of some EU member states and European Green Parties, along with a broader EU desire to construct a single market, would explain EU strength, while the Republican Party’s power in Congress and then the Executive Branch in the 90s and 2000s, and subsequent elite partisan polarization on regulatory issues, would explain US weakness.
When addressing the first factor, or “what explains public opinion” (p.37), the book describes its data as consistent with standard opinion dynamics (Downs 1972; Baumgartner and Jones 1993). But the book often puzzles over what has driven these dynamics in the US and what has led to an absence of “substantial public pressure on policy makers to strengthen [regulations]” since about 1990 (p.230). The evidence Vogel presents suggests two possible answers, one indirect and one direct. First, elite party polarization in general and on regulatory issues in particular (p.227, McCarty et al. 2006; Hacker and Pierson 2010) has led to partisans cleanly sorting themselves into parties (Fiorina et al. 2010). Given that public opinion is often elite led, especially on lower salience issues (Zaller 1992), Republican partisans, following the party, largely grew strongly anti-regulation, while Democrats favored regulation. As a consequence, the pro-regulatory electorate has become a firmly Democratic and “captured” minority and the parties no longer need to compete for its votes (Frymer 1999). This allows the Republican Party to largely oppose regulation with few electoral costs, provides the Democratic Party with few incentives to strongly pursue regulation, and makes strong advocates largely beholden to one party and less likely to achieve success.
Other evidence supports viewing public opinion as a direct consequence of policymakers’ preferences: as Vogel notes, the new Republican Congress of the 1990s held repeated hearings with experts expressing skepticism about health, safety, and environmental risks, skepticism then reported in the media and disseminated to voters (p.135), and did not welcome testimony from those who would make the affirmative case on issues like climate change (p.230). By contrast, in the EU, policymakers with pro-regulatory preferences found ways to lead public opinion in the other direction. As Vogel notes, “In February 1998, the European Commission removed all soft PVC teething toys from its own childcare facilities … strengthen[ing] the public campaign against PVCs” (p.204). Both indirectly and directly, then, the preferences and actions of influential policy elites themselves can drive public opinion. Though risk standards and tools like cost-benefit analysis and risk assessment play smaller roles in the story than public opinion and elites’ preferences (p.251), it’s worth noting that they too are in part consequences of political decisions, as in the important cases of pharmaceutical approval, direct to consumer advertising, and postmarketing [*138] surveillance criteria (Carpenter 2010).
Two points about the generally compelling assessment of regulatory stringency are less critiques than opportunities for further study. First, while the three categories of regulatory outcomes analyzed – legislative statutes, agency rules, and judicial decisions – are often recognized in passing as potentially distinct (pp.20, 118, 177, 231, 232-3, 285), they are seldom treated so analytically. This does not call into question the book’s assessment of their relative stringency. But since each method of regulation is subject to different types of political influences, further examination of these relationships is warranted.
Second, while Vogel’s case selection techniques (p.20) are appropriate and his analysis persuasive, a broader scholarly debate about his argument offers grounds for additional work. In particular, Jonathan Wiener and colleagues argue that Vogel’s cases are not representative and that his conclusions about the relative stringency of US and EU regulation are largely unsupported (Wiener et al. 2011, Chapter 1). They base their conclusions on a quantitative analysis of a random sample of 100 cases drawn from a universe of about 3000 cases of all risks that they have identified from the same time period (Wiener et al. 2011, Chapter 15). Readers interested in such an approach are encouraged to seek out this work which, while a significant and laudable undertaking, employs a somewhat idiosyncratic data collection technique (which the authors readily acknowledge) and analytic methods likely unfamiliar to most political scientists, thus leaving room for additional large-n work. Like many such debates in political science between qualitative and quantitative scholars, though, these two volumes are in some sense talking past one another, employing different methods and answering different questions (Brady and Collier 2010). The differences between approaches thus may be particularly instructive for researchers thinking about starting related projects.
THE POLITICS OF PRECAUTION adds to a growing literature on the political, institutional, and policy changes in the US that stem from the early-to-mid 1990s (Hacker and Pierson 2010; Mettler 2014). Vogel identifies a similar set of responsible agents and makes a complementary argument pointing to important changes in party preferences, unity, polarization, and gridlock, and the resultant policy drift, but by focusing on regulatory policy, a comparatively neglected policy consequence of these important political changes, Vogel significantly advances scholarship on US regulatory policy and institutional development. Beyond the US, the book serves as an extremely useful introduction to EU regulatory history and policy, and clearly identifies the institutional features of the EU that facilitate its regulatory leadership, especially in the excellent three concluding chapters. In addition, it offers a helpful model of employing detailed comparative policy analysis to explain large policy shifts.
While Vogel’s volume consistently reminds readers of an era when the US regulated strongly, and though scholars have increasingly pointed out that cost-benefit analysis may not be cautious enough in cases of uncertainty [*139] (Whiteside 2006), there is good reason, as Vogel notes, to be skeptical of the possibility of more precautionary US policies in the near future (pp.293-4). Beyond the many constraints the book emphasizes, it’s also possible that US pro-regulatory constituencies have actually grown more complacent over time as an ironic consequence of US firms voluntarily adopting higher, EU-like standards in the absence of US regulation (p.288). One wonders, for example, whether Nader’s Raiders, chronicled in Vogel’s earlier FLUCTUATING FORTUNES (1989), if transported to today, would be sufficiently satisfied by Whole Foods Markets selling antibiotic-free chicken and organic kale that their pro-regulatory enthusiasm would be softened by their ethical consumption.
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Brady, Henry E. and David Collier, eds. 2010. RETHINKING SOCIAL INQUIRY: DIVERSE TOOLS, SHARED STANDARDS. 2nd ed. Rowman & Littlefield Publishers.
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Copyright 2014 by the Author, Herschel Nachlis.