The Ethics of Spraying Pesticide on Citizens Against Their Will Thomas Kerns, PhD, Prof. of Biomedical Ethics, University of Washington

April, 2000

Dear Governor Locke:

I am writing to ask that you issue a directive to stop the proposed spraying of Foray 48B in Ballard and Magnolia in the coming weeks.

I am a voter, a resident of Magnolia, and I have been a professor of Philosophy here in Seattle for twenty-four years. I teach courses in Biomedical Ethics and in Public Health Ethics, and have written three books on issues in public health ethics. The most recent book (in press with McFarland Publishers) is entitled Emerging Environmental Epidemics: Ethics, Risk Assessment and Human Rights in Toxicant Induced Illness.

I will not review the criticisms that have been made of WSDA's reasons for spraying (the alleged "infestation" of one now dead male Gypsy Moth and one now destroyed egg sack). What I will focus on instead are two simple but important operating principles of Public Health ethics: 1) the precautionary principle, and 2) the principle of informed consent. Both of these principles would be violated if the proposed spraying were to occur. I am not a legal scholar so I do not know whether the violation of these principles is actionable, but I do know that violating either or both of these principles would be considered a violation of well established human rights principles, and morally wrong.

The precautionary principle has been articulated in a variety of environmental human rights documents. It addresses the question of what position governments and society should take in situations where the level of risk is uncertain and "more research is needed." The precautionary principle takes the position of being protective when uncertain.

"When it comes to activities that affect human health and the environment, 'better safe than sorry' and 'look before you leap' should be the guiding principles, say environmental leaders who met in Racine, Wisconsin, in late January[1998]." (Fom the press release on this conference -- see below for a list of expert-attendees at this conference).

"The precautionary principle is common sense. We need to prevent questionable practices rather than simply dealing with their bad effects," said Ken Geiser of the University of Massachusetts, Lowell. "We often don't know for sure what harm there will be until people have suffered or the damage is irreparable. Scientists don't want to say what will happen before they know for sure. By then, the damage is done."

"Most people think we already have the precautionary principle," said Diane Takvorian, a community organizer with the Environmental Health Coalition in San Diego, California. "Then something poisons their food or water [or air] or makes them ill and they are surprised. They are outraged that democracy doesn't seem to apply to their own health."

"Precaution is natural in our lives," said Gordon Durnil, a lawyer from Indianapolis, Indiana. "From my perspective as a conservative Republican, this is a conservative principle."

Despite a few studies that have been done on Foray 48B, there are literally no data on the long term health effects of exposure to Btk or to Foray 48B because no studies have been done that look for those effects. No studies done on exposure to Foray 48B have assessed for endocrine disruption, for effects on fetuses, for effects on children, for neurological effects, for adverse health consequences for persons with chemical sensitivity disorders, or for carcinogenicity. Most studies have relied only on passive monitoring for adverse health effects, a method of assessment with very low sensitivity which would be expected to pick up only a very small percentage of actual adverse health events.

We are thus dealing with an airborne agent with unknown potential health effects, sprayed over a large population, in an area with subpopulations of people at much higher than average risk (the elderly, infants and young children, persons with chemical sensitivity disorders, persons with asthma and other respiratory disorders, persons with impaired mobility who cannot leave the area, and women carrying fetuses at various stages of gestation). In a situation like this, the precautionary principle clearly ought to be applied, particularly when this airborne exposure will be forcibly visited on this population despite its strongly voiced protests.

The second and even more long standing principle of public health ethics is the principle of informed consent. This principle was first articulated in 1947 in The Nuremberg Code which resulted from the doctors' trials at Nuremberg. It addressed the practice of doing medical experiments on human beings without their consent. The Code states this principle very clearly: "The voluntary consent of the human subject is absolutely essential."

Two or three decades passed before this principle finally became instantiated in law and began to govern all clinical medical practice and all biomedical research. It is now beginning to govern the practice of public health as well. The Code continues: "This means that the person[s] involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion, and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision."

In the case of this spraying, citizens have not been informed of most of the ingredients (the so-called "inerts") in Foray 48B because the list of those ingredients is considered proprietary. They have not been informed of " the effects upon his health or person which may possibly come from his participation in the experiment" because these health effects have not been studied and therefore are not known.

So what we would have here, if this spraying were done, is a health effects experiment that would be conducted on the residents of Ballard and Magnolia. This would be unethical, in part simply because these residents, like the residents of the concentration camps, have not been given the opportunity to give or withhold their consent to be subjects in the experiments. They have been given no way to effectively withdraw from participation in the experiment.

In sum, in light of these two fundamental ethical principles that govern, public health decision-making, I am asking that you issue a directive to stop the proposed spraying of Foray 48B in Ballard and Magnolia.

Thank you,

Thomas A Kerns, PhD
North Seattle Community College

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Wingspread Conference participants:

January 1998, Racine, Wis.

Dr. Nicholas Ashford, Massachusetts Institute of Technology
Katherine Barrett, Univ. of British Columbia
Anita Bernstein, Chicago-Kent College of Law
Dr. Robert Costanza, University of Maryland
Pat Costner, Greenpeace
Dr. Carl Cranor, Univ. of California, Riverside
Dr. Peter deFur, Virginia Commonwealth Univ.
Gordon Durnil, attorney
Dr. Kenneth Geiser, Toxics Use Reduction Institute, Univ. of Mass., Lowell
Dr. Andrew Jordan, Centre for Social and Economic Research on the Global Environment, Univ. Of East Anglia, United Kingdom
Andrew King, United Steelworkers of America, Canadian Office, Toronto, Canada
Dr. Frederick Kirschenmann, farmer
Stephen Lester, Center for Health, Environment and Justice
Sue Maret, Union Institute
Dr. Michael M'Gonigle, University of Victoria, British Columbia, Canada
Dr. Peter Montague, Environmental Research Foundation
Dr. John Peterson Myers, W. Alton Jones Foundation
Dr. Mary O'Brien, environmental consultant
Dr. David Ozonoff, Boston University
Carolyn Raffensperger, Science and Environmental Health Network
Hon. Pamela Resor, Massachusetts House of Representatives
Florence Robinson, Louisiana Environmental Network
Dr. Ted Schettler, Physicians for Social Responsibility
Ted Smith, Silicon Valley Toxics Coalition
Dr. Klaus-Richard Sperling, Alfred-Wegener- Institut, Hamburg, Germany
Dr. Sandra Steingraber, author
Diane Takvorian, Environmental Health Coalition
Joel Tickner, University of Mass., Lowell
Dr. Konrad von Moltke, Dartmouth College Dr. Bo Wahlstrom, KEMI (National Chemical Inspectorate), Sweden
Jackie Warledo, Indigenous Environmental Network

Dr Tom Kerns
Department of Philosophy
North Seattle Community College
9600 College Way North
Seattle, WA 98103

(206) 526-7014
tkerns@sccd.ctc.edu
tkerns@u.washington.edu
http://embanet.com/~tom_kerns/tksite/tk-homepg.html