Science and Law
31st October 2014

Four Common Mistakes in Making Science-Based Policy

Back in July, I read with interest a commentary in Environmental Health Perspectives by Kevin Elliott and and David Resnick discussing an important topic related to litigation involving complex scientific topics: the role of science in setting policy.

Four Common Mistakes in Making Science-Based Policy

Check Out Our Letter to the Editor in Environmental Health Perspectives

Back in July, I read with interest a commentary in Environmental Health Perspectives by Kevin Elliott and and David Resnick discussing an important topic related to litigation involving complex scientific topics: the role of science in setting policy. It was both interesting and disheartening to see the following three common mistakes in using science to set policy.

So, I decided to write a letter to the editor in response. In this letter, just published in the November issue of Environmental Health Perspectives, I set forth the following four points:

1. Weak scientific evidence remains weak, even if relied upon to protect the public

The authors suggested that weaker scientific standards of evidence can and should be used in the service of important public health issues. So far so good. The problem arises when policy makers rely on weaker standards of evidence (in an attempt to protect the public) and then fail to emphasize the reliance upon those weaker standards of evidence. In other words, the intention to protect the public in using weaker scientific standards does not change the nature of the scientifice evidence. As is often the case, this point is not made clear.

2. Establishing causation in the courtroom is not the same as applying regulatory caution

It is simply wrong to treat causation evidence in the courtroom equivalent to the evidence necessary to take regulatory action.

3. Advocacy organizations have conflicts too

Conflicts of interest arise any time someone imposes preconceived beliefs on an interpretation of scientific data. As Resnick Elliott and Resnick note in their commentary, conflicts of interest certainly arise on the industry side. Yet, they fail to even mention conflicts of interest that arise quite frequenly from activist and advocacy organizations. Such conflicts of interest should be taken into account when coming to science-based policy.

4. No mention of risk-benefit relationships

Finally, Ellliott and Resnick failed to address the importance of evaluating risk-benefit relationships when assessing chemical exposures of concern. As with the assessment of drugs or devices, we must recognize that most chemicals have value to society as well as risks. To evaluate the risks in a vacuum seems inherently incomplete.

Elliott and Resnick’s Response

From their response, it appears that Elliott and Resnick generally agree with the perspective I set forth in my letter to their commentary. However, it is interesting that they take issue with one of my central points — i.e., it is inappropriate to suggest that the level of evidence required in the courtroom should be the same as the level of evidence used to make regulatory policy. But then they caution against …”equating the standards of evidence expected in tort law with those expected in more traditional scientific contexts.”

They seem suggest that establishing causation in the courtroom is somehow different than establishing causation in the scientific arena, trotting out the old notion that the “preponderance of the evidence” standard in a civil case is somehow looser than the “95% level of certainty” that is the well cited litmus test in the scientific literature. This differential treatment of scientific evidence is a fiction and has been effectively and extensively responded to elsewhere (see some excellent treatment of this issue here and here).

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