Ending the Year on a Political Low Note
Tibor R. Machan
by Tibor R. Machan
December 30, 2003, as if to remind us all of who is becoming more
and more in charge of our lives, agents of our Federal Government
decided to ban the over-the-counter dietary supplement ephedra
also known as ma huang and basically put a sizable portion
of an industry out of business. Sure, ephedra has had some bad side
effects and is said to have contributed to the death of Baltimore
Orioles pitcher Steve Bechler after he consumed an ephedra-containing
product. Reportedly some others, too, have
had various bad experiences with the product.
then, that ephedra isn't vital at least for most people's daily
lives and that these days risk-aversion has become a near epidemic
in our society, perhaps we should not be terribly surprised that
the Feds in particular Secretary of Health and Human Services
Tommy G. Thompson flexed their muscles so readily here. Then,
also, given how eager so many Americans have been to support George
W. Bush and his Attorney General John Ashcroft in the matter of
curtailing our liberties in the pursuit of perfect security vis-à-vis
terrorists, it shouldn't be expected that this ban will be resisted
by many citizens who aren't themselves seeking use of the product
or members of the industry earning a living from providing it for
them in the market place. The only others who will raise a protesting
voice will be, like me, those who consider these kinds of bans seriously
flawed public policy.
protest the ban, you might wonder? The main reason is that in a
free society defective products must be dealt with via tort and,
on rare occasions, the criminal law. Shutting down an entire business
community on the grounds that some people have been harmed by its
products is plainly unjust. Only when a significant statistical
signaling a causal link is established between the product and
serious harmful results can it suffice as ground for punishing the
manufacturer and seller of it. Even in such cases if the product's
risk is spelled out as it is being marketed, a ban isn't warranted.
consider that driving cars is evidently not risk free; yet cars
are sold to millions of people every year. Nor are cars always used
for vital purposes we take them to football games, getting our
nails done and to pick up such risky products as cigarettes and
beer. Yet, cars aren't banned. And they should not be. Only when
their normal, proper use contributes to serious harmful consequences
should the producers suffer adverse consequences, and then only
on an individual, case-by-case, basis.
is what due process requires, not the mass banning of a risky product,
a policy that, moreover, deprives many people of what they freely
is yet another scary dimension of this ban the government has imposed:
many legal experts and news reporters have yielded to the temptation
to become propagandists for the ban. On several TV news programs
the reporters and the experts they have invited to comment have
openly declared any and all opposition to the government's ban a
function of pure economic interest, voiced only by lobbyists. This
is akin to when Attorney General John Ashcroft declared that criticism
of his anti-terrorist measures amounted to aiding and abetting terrorism.
plain fact is that there are serious disinterested dissenters to
the government's ban. Just as the protest against banning flag burning
need not come only from those who are bent on burning flags but
may come from principled opponents of such bans, the same holds
for the new ban. It is wrong to do this for a government of a free
society and however used the American public has become to various
bans, it is worth calling to mind that such policies fly in the
face of the principles of a free society.
this instance, of course, there is a new wrinkle to the government's
petty tyranny. The Food and Drug Administration arguably lacks the
authority to regulate, let alone ban, over-the-counter products
such as headache remedies, dietary supplements, vitamins, and so
forth. Not that it ought to have any authority to regulate and ban
prescription drugs. But this most recent FDA action is clearly an
expansion of the government's already unjustifiable powers.
should alert even the most complacent of our citizens to the trend.
It usually begins with responses to panic, when people are not paying
much attention to the loss of liberty, but gradually moves toward
taking over a portion of our lives that we have every right to govern
ourselves (with only the aid of tort or criminal law).
basic idea is that only after it is proven that some kind of conduct
is in violation of our rights, may the government move against those
who engage in it. This principle is now in near tatters.
him mail] holds
the Freedom Communications Professorship of Free Enterprise and
Business Ethics at the Argyros School of Business & Economics, Chapman
University, CA. A Research Fellow at the Hoover Institution, Stanford
University, he is author of 20+ books, most recently, The
Passion for Liberty
(Rowman & Littlefield, 2003).
Copyright © 2004 Tibor Machan