11 June 2019

Protecting our health and environment - Is justice to substitute rules and regulations?

Traditionally, in Western democracies, the legislative power (Parliament) makes law, the executive power (Government) implements it and the judiciary authority (judges) ensure that it is respected. In this institutional set-up, Parliament decides the rules determining the functioning of society, from basic principles to detailed laws, Government being in charge of the finest details at the time of drafting implementing decrees.

In democracy, whoever wants to establish a regulation protecting our health and environment should therefore normally turn to Parliament and Government to influence their work: citizens by voting and demonstrating their preferences, lobbies by trying to convince Members of Parliament and Government Officials to adopt and implement laws in their favour. As the responsibility of parliamentarians and government officers is to work in honesty for “public interest”, it is their job to resist any attempt from lobbies to make of this a matter of private interest.

Lobbies and the resources they get from those who fund them (in particular large companies) have been developing remarkably during the last decades. According to a survey of French newspaper L’Express in 2012, there were in Brussels “around 30,000 lobbies, representing on average 40 lobbies per European parliamentarian and one for every two EU officials. In France, the registry of the National Assembly, created in 2009 to improve transparency, records only 153 professional lobbyists. An official figure” [read in French]. In reality, according to Regards citoyens and Transparence International France who analysed parliamentarian activities between 2007 and 2010, there were “9,300 auditions of nearly 5,000 organisations represented by more than 16,000 persons.” Half of these auditions involved public or parastatal organisations, 20% were with representative organisations, 16% with private sector, 7,5% with civil society organisations, the rest being with individual experts, private counsel firms, think-tanks and religious organisations [read in French].

Currently, a law is being discussed in the French Parliament that envisages a greater transparency regarding relations between parliamentarians and lobbies, the former having to make public gifts and trips they are offered by the latter.

The same has been happening in the US: Friends of the Earth US conducted a research on how companies from the industrial food and agriculture sector had been spending ‘hundreds of millions of dollars from 2009 to 2013 on communications efforts to spin the media, drive consumer behavior and advance [their] policy agenda’ [read]. The sugar lobby too has works with a frightening effectiveness to preserve its interests [read].

The result of this more or less legal influence peddling is that regulations for protecting consumers and the environment, as well as for combatting climate change, make only a far too slow progress to play effectively its role.

In the face of the inability of Parliaments and Governments to take appropriate measures, consumers and citizens have been obliged to invoke the third power : Justice. Court cases have multiplied that attempt to incriminate private companies that endanger by their activities the health of citizens and/or the quality of our environment. Most well known cases are those involving Monsanto in the US [read] and the Johnson&Johnson opioid trial [read]. Many complaints have also accused several companies for contributing to climate change, particularly in California. Simultaneously, court cases against “inaction” of governments have also grown in number, such as the case launched last December by four NGOs (Oxfam France, Greenpeace France, Fondation pour la nature et l’homme et Notre affaire à tous) against the French State for failing to fulfill its obligation of action against global warming. Similar cases have been initiated in The Netherlands, in Colombia and in Pakistan [read in French].

It looks as if the population were using the third power to cope with the inability of the legislative and executive powers to take certain measures, whether it is because they are not convinced of their necessity or because they are under the influence of powerful interests who feel threatened by them. Court cases are justified either by the lack of respect by authorities of their international commitments - often signed with a great amount of publicity, to be violated later in obscure backroom deals - or of some of the basic principles stipulated in these countries’ basic texts, i.e. their Constitution.

Regarding cases involving private companies, experience shows that the fines applied by tribunals can amount to hundreds of millions, even billions or trillons - when the number of complainants runs in thousands and threaten the very existence of these compagnies in the future, given that these cases may drag on for years and years.

With the growing success of such cases, some believe that, rather than trying to develop a law or detailed regulations, it is more effective to refer to major principles in court and push compagnies to change their behaviour under the pressure of their stockholders who worry about future revenues, or to threaten de facto to drive them out of business. It seems also easier, as it is no more necessary to organise massive demonstrations requiring the mobilisation of a large number of persons. However, court cases may become quite costly operations.

The problem, nevertheless, is that it is not always so easy to prove convincingly in court the causality liking a company’s doings with its alleged consequences. The issue may then become a topic of debate among scientists - the objectivity and independence of whom are increasingly challenged [read] - or depend on the understanding and interpretation of facts by judges who may have reached their limit of incompetence and who might too, in turn, become the beneficiaries of gifts and trips offered by the incriminated economic powers… A risky undertaking!

What would then be the next resort?

Meanwhile, it makes sense to ask the following: can a large number of court cases really replace an appropriate regulation that is rigorously implemented? Does the perspective of huge fines that threaten their existence suffice to bring companies to anticipate and take required precautions to avoid any negative impact of their activities on consumers, the environment and the climate?

We may well doubt that.


To know more:

  1. RPT-USA-Johnson & Johnson attaqué au premier procès des opioïdes, Reuters, 2019 (in French).

  2. Hoffman, J., First Opioid Trial Takes Aim at Johnson & Johnson, New York Times, 2019.

  3. Influence à l’Assemblée nationale, Transparence International France et, 2012 (in French).

  4. Dedieu, F. et B. Mathieu, Les lobbies qui tiennent la France, L’Express/L’Expansion, 2012 (in French).

Selection of recent articles on related to the topic:

  1. Scientific research under the influence of private interests (Season 2) : sugar and physical exercise, 2019.

  2. Life plagued by human madness: we must change our paradigms, objectives and values, 2019.

  3. Monsanto case: a result that does not solve the problem and illustrates the perverse nature of the so-called “consumer protection system”, 2018.

  4. Scientific research under the influence of private interests, 2016.

  5. In the US, the industrial food and agriculture sector spent hundreds of millions on communication to influence the media, consumers and policy. What about in Europe? 2015.


Last update:    June 2019

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