Confronting toxic work exposure in China: the precautionary principle and burden shifting.

• Author: Hawthorne, Monique Lee

1. INTRODUCTION II. THE CHINESE STRUGGLE TO BALANCE PROSPERITY AND PROTECTION A. Chinese Market Reforms: A Catalyst for Protecting the Environment B. The Environmental Cost of Economic Growth in a Communist Country C. The Factory Workers' Role in China's Economic Development 1. China Faces the Challenging Task of Correcting Its Errors 2. The Fall of the Celebrated Socialist Worker 3. China Attempts New Worker Protections 4. The Workers' Reality D. The Current Problems of Toxic Work Exposure 1. The Toy Industry 2. The Shoe Industry III. THE PRECAUTIONARY PRINCIPLE: A POSSIBLE REMEDY A. The Precautionary Principle Model: The Industry's Burden 1. An Overview of the Precautionary Principle 2. Industry Financial Responsibility 3. The Duty to Monitor, Understand, Investigate, Inform, and Act B. The U.S. Model: The Agency's Burden 1. The Implications of the Benzene Case 2 OSHA's Options for Collecting Data for Toxic Work Exposure Standards IV. CONCLUSION: THE PRECAUTIONARY PRINCIPLE--A GOOD POLICY FIT FOR THE CHINESE I. INTRODUCTION

   This Comment addresses one of the most pressing issues the Chinese government is facing today--occupational health and safety (OHS) protections for Chinese workers--and proposes that China adopts the precautionary principle's burden-shifting model for the regulation of toxic work exposure. China has been described by scholars and business analysts as the "world's factory floor" with factories that "produce 70% of the world's toys, 70% of photocopiers, 40% of microwaves ovens and sports shoes, and increasing shares of the world's videotape and DVD equipment, cell phones, electric lighting, and semiconductors and circuit boards." (1) With this type of economic growth, there has been a major shift in the last decade in the Chinese labor market with a labor force transferring over 80 million workers from rural to urban areas. (2) The Chinese government is struggling with this shift and its effects on environmental issues particularly in the realms of OHS laws, regulations, and implementing agencies to keep up with exponential economic growth.

   The Chinese government should adopt the Western European model of the precautionary principle. The problems facing Chinese workers seem to stem not from the government's lack of concern, but more from ineffective enforcement of its regulations, (3) industry greed, (4) and China's lack of transparency. (5) The Chinese government has recognized that factory workers need protection from unreasonable toxic exposure, and the Chinese leadership is attempting to follow the United States' model of toxic work exposure regulations. However, the United States' model for toxic work exposure regulation is flawed because it places the large burden of proving the harm of substances on the under-funded (6) Occupational Safety and Health Administration (OSHA).

   This Comment will argue that there are serious deficiencies in the current Chinese occupational health standards, and the consequences for falling to adopt a better model will cripple the Chinese labor market and negatively affect the global economy. The Chinese government should not follow U.S.' Occupational Safety and Health Administration's model of a cost-benefit analysis, but rather China should create OHS using the precautionary principle's burden-shifting model. The precautionary principle is based on values that support both economic viability and environmental protection. (7) For continued economic growth without compromising the environment and the lives of those who are the foundation of the economic growth, the precautionary principle is a better model to use when tackling OHS standards for toxic chemical exposures. "The precautionary principle ... serves as a 'speed bump'... ensuring that decisions about new activities are made thoughtfully and in the light of potential consequences." (8)

   Part II of the Comment provides a brief overview of the development of Chinese environmental and labor policies and discusses how recent governmental attempts have failed to provide adequate toxic work exposure protection. Part III argues that the Chinese model can be enhanced by adopting the precautionary principle and not the United States' model. The Comment concludes, in Part IV, by noting the advantages of the precautionary principle for a country like China where the rule of policy is more readily understood by its people and government.

2. THE CHINESE STRUGGLE TO BALANCE PROSPERITY AND PROTECTION

   China's entry into the World Trade Organization spawned one of the largest economic growths in its history. (9) "China's economy continues to grow at a rate of 8-12% annually, and by the end of 2005, China became the fourth largest economy and third largest exporting nation in the world, after the United States and Germany." (10) The majority of Chinese goods are exported to the United States, and Chinese exports outnumber American imports into China nearly six to one. (11)

   Shoppers today will rarely walk out of a store without at least one item in their shopping bag displaying a "Made in China" label. It is even likely that. everything in the bag is made in China, including the bag itself. American consumers have come to associate inexpensive consumer products such as toys, electronics, home furnishings, accessories, and clothing with products made in China. Our materialistic society is driven not necessarily by our desire to have possessions--although that does play a part in American consumerism--but by the sheer fact that we can possess large quantities without spending large amounts of money. With discount store chains such as Kmart, Target, and Wal-Mart, today's consumer can purchase large quantities without spending much because Chinese products are inexpensive.

   American consumers rarely think about where their new shoes are from or how their children's toys were made. Although these products are prevalent and relatively inexpensive for the consumer, the Chinese environment and Chinese workers pay a high price. (12) Chinese workers face factories with poor air quality and toxic chemical exposure that lead to serious occupational diseases and sometimes death. (13) These diseases and deaths can be prevented with little expenditure, but nonetheless continue to affect Chinese workers during a time when American CEO salaries continue to soar. (14) From an environmental health perspective, the Made-in-China products are far from cheap because the environment and factory workers are making up the cost difference.

   1. Chinese Market Reforms: A Catalyst for Protecting the Environment

      Around the same time that the late Chinese leader Deng Xiaoping began his market reforms, (15) China also began developing environmental protection programs to be implemented by a system of institutions. (16) "Environmental protection was elevated to 'fundamental' status because preventing pollution and maintaining ecological systems were considered necessary for agricultural and economic development." (17) This "elevation" of status was more a policy than a plan of action. All governmental energy was focused on ensuring economic success; policies to protect the environment were incidental to market reforms. (18) The designation of environmental protection as "fundamental" "was also motivated by the occurrence of numerous pollution accidents and ecological crises and the perception that rapid economic growth, as conceived under the economic reforms, would require efficient use of natural resources." (19) The main areas of concern included "air pollution, water pollution, and solid waste disposal; efforts were also made to protect drinking water sources and to establish nature preserves." (20)

      The legal basis for environmental protection was written into the Chinese Constitution in 1978 as Article II. (21) It proclaims that "the State protects the environment and natural resources and prevents and eliminates pollution and other hazards to the public." (22) With this as a starting point, China set out to address environmental problems that would be closely associated with its economic growth. To understand the occasional shortcomings and dynamics of Chinese environmental policies and laws, one should consider that "the reality of work in China to address environmental protection issues is sometimes obscured by a legal culture that does not readily divulge information on administrative laws or the harsh results of compliance failures." (23) The objectives and goals seemed headed in a promising direction, but there is difficulty in ascertaining what was actually occurring.

      On June 29, 2002, the Standing Committee of the National People's Congress (NPC) of the People's Republic of China approved the Cleaner Production Promotion Law, (24) which came into affect in 2003. This law was passed to "establish[] demonstration programs for pollution remediation in ten major Chinese cities, and designated several river valleys as priority areas." (25) This law shifted the Chinese ideology in dealing with environmental problems from the "end-of-pipe" approach--dealing with pollution at the last stage of production when contaminants have already been formed (26)--to targeting waste within the process by source reduction. (27) Logic may lead one to believe that this type of shift in ideology should have also benefited factory workers because their work environments would become the primary targets for pollution reduction. However, the workers have not reaped the benefits because the number of reported occupational diseases and deaths continue to rise. (28)

   2. The Environmental Cost of Economic Growth in a Communist Country

      Environmental degradation in China goes hand in hand with the economic growth that is occurring in the country. During the market reforms of Deng in the 1970s, the Chinese government often resisted dealing with environmental issues and "argued that as a socialist state it did not have environmental problems." (29) As a result...