Title: Informing Public Choice: Risk Perception Heuristics, Agency Paternalism and Individual Autonomy in Food and Drug Safety Regulation (1994 Third Year Paper)
Author(s): Norman F. Carlin
Subject & Subject keywords: Food and Drug Law "national research council" "food labeling" "saccharin"
Abstract:A fundamental aspect of the mission of the Food and Drug Administration is paternalistic: to protect us, the public, from ourselves. Like Ulysses ordering his crew to lash him to the mast, we demand that government prevent us from making incorrect choices. If we were able to discover the contents, safety and benefits of food and drugs for ourselves, decisions could safely be left to the sum of individual choices, in the economists' market solution. However, it is impractical for the public to assume the burden of fully informing itself of all relevant facts; government is a more efficient information gatherer. The FDA can keep unsafe products off the market, or if the product can be used safely, require warning labels to inform us of risks we could not otherwise discover.

In the abstract, there is nothing antidemocratic in delegating to an expert agency the authority to make decisions, when we lack training, time or inclination to inform ourselves sufficiently that we could decide individually. The assumption is that anyone who did in fact acquire the relevant information would reach the same result that the agency does; it is our surrogate. But in practice, as each particular case arises, be it saccharin or swordfish or laetrile, the public inevitably concludes that this is a case in which the agency is wrong, and we know better. Once we hear the sirens' song, we demand to be released no less adamantly than we originally demanded to be bound. The agency is caught between our inconsistent imperatives and must resort to requiring a warning label on a product that the public insists remain available, though applying ordinary standards the agency would prohibit it. But a warning is not a solution to the problem. What attention can we be expected to give the warning, when we have already concluded that the agency is wrong?

This essay first describes some of the risk heuristics that cognitive psychologists have identified, in relation to issues of individual autonomy. I then consider the public outcry and Congressional intervention following FDA's attempt to ban saccharin, and the subsequent relative ineffectiveness of the saccharin warning label, as applications of risk heuristics. Finally, I consider/ the recommendations of the National Research Council report and offer my own modest proposal.