Page - 254 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE254 duce surrogate testing of blood donations for hepatitis C, Justice Krever stated: “The safety of the blood supply is an aspect of public health, and, therefore, the blood supply system must be governed by the public health philosophy, which rejects the view that complete knowledge of a public health hazard is a prerequisite for action.”15 However, the application of precautions to public health has been problematic, as the reflexive application of precautions to pre- vent one health risk can cause another health risk. For example, ban- ning the use of lower-dose DDT for malaria prevention in Africa because of bioaccumulation concerns related to high-dose agricultural use in North America has led to malaria outbreaks. This dilemma has been all too evident with COVID-19: precautionary measures such as physical distancing are criticized for their accompanying risks, both to the economy and to public health, particularly to the most vulner- able, and to the risk of deepening social inequalities. Critics argue that the rational path forward is to attend, as best we can, to the risks on all sides rather than take refuge in a principle that reflexively favours precautionary measures. Some argue that we should move from pre- caution to risk—risk analyses in these scenarios.16 Given these challenges, the EU has provided more modern guidance, clarifying that the application of the precautionary prin- ciple should be: • proportional to the chosen level of protection; • non-discriminatory; • consistent with similar measures already taken; • based  on  an  examination  of  the  potential  benefits  and  costs of action or lack of action (including, where appropriate and feasible, an economic cost/benefit analysis); • subject to review, in the light of new scientific data; and • capable  of  assigning  responsibility  for  producing  the  scientific  evi- dence necessary for a more comprehensive risk assessment. In assessing any emerging threat, one must be cognizant that these are scientifically and socially dynamic situations with emerging evi- dence continually altering the level of uncertainty. This has been true of the COVID-19 pandemic. At the outset, with little known 15. Ibid at 1049. 16. Indur Goklany, “From Precautionary Principle to Risk—Risk Analysis” (2002) 20:11 Nature Biotechnology 1075.