When it comes to "public health," those of us who support individual rights and responsibility, private property, and free markets face a skilled and determined opposition: a coalition of medical and legal professionals. They have already won a great deal. They are constantly pressing forward. They are constantly enlarging the scope of "public health," that is, bureaucratic health, to justify more and more regulation. The offenses of government health and safety laws against the individual are already very great.
The pro-state cadres have won a great deal even in speaking of problems as public health problems and then intimating the false inference that the solution to a public health problem must be collective or governmental. The term "public health," like "general welfare," sounds benign. Who is against the public? Who is against health? Who is against public health?
In one article on the new frontier of obesity law, several government health advocates accurately summarize where we are at: "The law is now firmly established as a powerful instrument of public health. Some of the most important public health victories in the United States in the past century — declining lead exposure, reduced rates of smoking, improvements in workplace and motor vehicle safety, and increased vaccination rates — are the result of new legislation, heightened regulatory enforcement, litigation, or a combination of the three. With each victory, confidence mounts in the capacity of legal tools to be used in combating serious health threats."
The scope of the state’s health tyranny at both state and national levels is extremely broad. The above statement folds public safety into the umbrella term of public health. The Consumer Product Safety Commission created in 1972 has authority to regulate the sale and manufacture of many thousands of products. The entire economy is blanketed when we pile on other regulatory agencies such as the Food and Drug Administration, the Environmental Protection Agency, the National Highway Traffic Safety Administration, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Occupational and Safety and Health Administration, the Federal Trade Commission, the Department of Energy, and the Department of Homeland Security. The U.S. Constitution through the general welfare clause provides the legal basis for this multi-faceted American despotism.
People and state interact with their own peculiar political chemistry. One product of this chemical reaction is submission to bureaucratic rule. Americans in the last 40 years (and longer) have chosen to place their safety in the hands of bumbling government bureaucracies. Our regulations now rival in volume and triviality those produced by such past overbearing regimes as the French Bourbons. They rival the minute preoccupations of past English legislatures.
The land of freedom has become the land of regulation and constraint. It is come to forced inoculations with cervical cancer vaccines. It is coming to obesity rules and regulations.
The massive irony is that these detailed rules, forcing people to read booklets while pulling down walls to find asbestos, reduce our society’s health and safety. Government socialization of health and safety problems does not achieve your health and mine. As instruments of social cooperation, monopolistic bureaucratic procedures are inherently inferior to free market institutions.
What is an unsafe product?
To plumb the roots of the American love affair with the government provision of health and safety is beyond my scope. But we can address some of the rationales that the public health and safety lobby promotes.
The most important argument proffered for government regulation is this: Unsafe products should be regulated or banned. Therefore, government regulation is necessary.
This argument is the most persuasive and yet the most simple-minded and totally false argument for government action. From the largely correct premise, it is concluded that government action is advisable or even necessary in order to accomplish the regulation or banning. But this does not follow.
With some qualification, the premise is correct that unsafe products should be regulated or banned. But the premise does not imply government regulation. There is an alternative: self-regulation. And self-regulation is not only a superior but the only feasible path toward safety. Government regulation takes us away from safety.
What do we mean when we say something is unsafe? There are several meanings. Nitroglycerine can be called an unsafe product. This means that there is a high probability of explosion and injury if it is not handled properly. Hydrogen cyanide is an unsafe product in inexperienced and unknowledgeable hands. Nevertheless, handled properly and not inhaled, it becomes safe.
An item can be unsafe if it is used improperly, at which point the chance of causing harm rises. A fire is not unsafe until we place our hand into it. The uses, the conditions, the circumstances, the situations are often what can make something hazardous, not the thing itself.
How safe or unsafe is a kitchen knife or fork? Until a child learns how to use them properly, these utensils can be unsafe (meaning put to unsafe uses.) A child can hurt himself or injure others with it. A bobby-pin and a pencil can be unsafe. A child can put someone’s eye out. A finger can do the same thing. A bobby-pin stuck into an electrical outlet can electrocute someone. Is lead paint unsafe? If it is eaten, it’s unsafe. Otherwise, it is not. A thallium radioactive source is safe if kept behind a proper lead shield; it’s poisonous if eaten. The sun is unsafe if we get too close to it or expose ourselves too much to it. We need distance and shielding. A neighborhood can be unsafe if we walk around it unarmed and alone. Armed and with others, we walk more safely.
There are also products that are inherently unsafe because they present risks of use even if used properly. Early steam engines had a tendency to explode more frequently than later steam engines. One must learn what the risks of such items are or assess them beforehand based on similar experiences.
Then there are unsafe items whose construction does not match one’s expectations. A toy with a razor sharp edge presents an unexpected risk. One can cut oneself on sharp plastic closures. In these cases, one must learn to look for problems before they materialize.
Items are therefore unsafe in several ways. They can be used unsafely; they can be risky in use even if used properly; and they can provide incongruous or unexpected experiences. That is what we mean when we say something is unsafe.
Self-regulation of safety
We can more or less agree that unsafe products should be regulated or banned. But what does this statement really mean? It means we should use items to satisfy our preferences for safety. How shall we do this? Ordinarily, we regulate the use of items ourselves. We teach children not to use things improperly, including their own bodies. We teach children general rules of safe behavior and conduct. We impose parental bans on certain uses. Adults learn how to regulate themselves and ban certain items and behaviors that undermine their own safety and the safety of others. We learn how to assess risks and how to evaluate products and situations for the unexpected elements. Self-regulation is at once basic, essential, and pervasive. It reaches into almost every act a human being engages in, and it is an entirely natural process.
Even if we admit that unsafe products should be regulated or banned, which is not the usual language of preferences, we must ask: By whom? By us as individuals. We do this naturally. We hardly even think about it as we go about determining how unsafe a product might be for us. When we don’t buy it, we ban it. We naturally decide how much to expend to insure against an unsafe use, and how much risk we are willing to bear ourselves.
The individual process of evaluating safety is a just process, because we neither impose our values and safety determinations upon others nor have them impose their values upon us. Individual safety determination is efficient because we act upon the costs and benefits that we individually perceive. It is effective because we bear the impact of miscalculation, which means we have strong incentives to learn about safety and make correct choices. It is effective because the number of situations involving safety is huge, and we need to learn general rules and procedures that can be applied in specific cases. Socially, the natural process is effective because people have strong incentives to make profits by providing safe products and by providing us with educational safety information.
Failings of bureaucratic regulation
To replace self-regulation by government and bureaucratic regulation is a gigantic mistake. When we turn to government health and safety regulation, we reverse all that is good about self-regulation and we induce entirely new negatives. The state’s rules are unjust, imposing on many who wish to be let alone. The state’s rules are inefficient because they are one size fits all, forcing expenditures where none or less may be desired. The state’s rules damage the incentives for private provision of safety and for the private development and transmission of safety rules and information.
With government regulation, we are substituting bureaucratic rule-makers for the well-functioning incentives of individual responsibility and free markets. The only possible justifications for this are the hope that we are getting better safety when we turn matters over to experts, and the dream that they are saving us time and money. They, in effect, are supposed to become our efficient brains. There is supposedly a beneficial division of labor in this process.
What is wrong with this picture? The problems of government regulation of health and safety are multiple and severe. The bureaucrats and technocrats making the rules are distant from our wants and don’t know them. They hold secure positions no matter how poorly they regulate and behave. They are not directly accountable to us. They do not report to us what they are doing. We, in any event, do not monitor them. They have no incentive to improve over time or economize on costs. Indeed their incentive is to provide the worst possible service at the highest possible price because they are government monopolists. They impose costs on us whether we like it or not. They are insensitive to our changing wants. They are subject to political forces and the influence of groups they regulate. They are subject to corruption.
In the long run, supplanting personal freedom and the accompanying responsibility with government paternalism teaches individuals to be stupid, to rely on big brother, and to shirk investing in their own knowledge base. The culture and civilization then spiral downwards.
None of these many negatives occur in free markets. Free markets produce the opposite results. In short, it is the height of stupidity to turn public health and safety matters over to government bureaucrats.
More false arguments
Learned lawyers, doctors, and professors hold conferences at which they exercise their brains to come up with new specious and sophistical arguments to support government regulation of health and safety.
At one conference on obesity law, Professor Roger Magnusson (a law professor) defended the government’s making obesity law with the argument that law’s perceived role in society is all about coercion. In other words, power, when called by the name law, is justified by power. One cannot more boldly put forth a specious argument than this one, in which force is called law; and the notion that law might actually have something to do with justice and acting against coercion is entirely eclipsed and turned on its head.
Another professor argued that children have a right to be healthy. This specious argument suggests that parents as a rule are not worthy or capable enough to raise their own children and should not be allowed to. Instead bureaucrats in government are to see to this task by filtering out bad foods and controlling the food and advertisement environment.
There is, of course, no such right of children to be healthy, but the language is not meant to be an accurate political argument. It is meant instead to cloak something that sounds good, healthy children, in legal language. Ernest entreaties by state-supporters for the well-being of children are extraordinarily devious. They appeal to the natural instincts of adults and parents, but they basically are a bait-and-switch argument much like the notion that unsafe products demand government regulation. The bait is a benign end. The switch is to a malign means of achieving that end. Success with government mandated V-chips in television sets is a sign of what the nanny-statists are after.
This professor also argued that government-regulated food labeling is justifiable in order to make healthy choices easier. This specious argument suggests that bureaucrats know better than consumers. Obviously, if there is a competitive advantage to supplying product details demanded by consumers, canny manufacturers will supply them. Taken further, the professor’s argument suggests that bureaucrats design the product itself, or ban products altogether.
The whole argument is specious because it is self-referential, just as is the argument that power justifies power. The government’s role is said to be justified because bureaucrats know better and they know better because the consumers and parents do not know better.
Another professor argued for controls on the marketing and advertising of food products. He didn’t think parents could exercise personal responsibility properly in an environment of ads and promotions. Instead, they’d be weaklings swimming against the tide. He didn’t seem bothered by the fact that his recommendations infringed free speech; or that people often invite such speech into their homes; or that people should learn how to think for themselves. He didn’t seem to mind doing the thinking for others. He, of course, was smart enough to judge what ads or promotions were allowable, while the masses could not. People, being automatons, could not, in his view, decide for themselves. Nor could a mother tell a child "No, that’s not good for you."
Professor Magnusson, who looks to be a master of sophistry, had yet another argument: "We can turn it around and say that, if we really want to deliver on autonomy or individualism, we need to introduce legislation that allows people full freedom of choice." Freedom, in other words, is slavery. The individual cannot be free without the state making him free via legislation. The restriction on choice and using one’s mind Magnusson relabels as "full freedom of choice."
When people promote falsehood, their rationales must also be false.
Advertising and children
The advocates of obesity laws are looking for cracks that can grow into fissures until whole walls begin to tumble down. One such opening is that Americans may be sensitive to protecting children from advertising and products deemed unsafe. They may be willing to take after restaurant fast foods and certain beverages. Juries may be willing to assess guilt based upon charges of false or misleading ads. Regulators may be willing to impose rules thought to be somewhat popular. Following the tobacco road, lawyers are busy looking how to build up law against obesity purveyors as if they were merchants of death. They are also looking at food tax and subsidy policies and changes in some of the benighted policies of school districts and school lunch programs.
One of the key weapons in this up-and-coming battle will be citation of social science studies that purport to show that advertising causes children to demand unhealthy foods and become obese. There are so many problems with this research that it should be laughed out of court, and we hope that it will. In the first place, the number of factors that influence obesity is very large. There is no known theory that can explain the complex of behavioral, environmental, and genetic factors involved; so that singling out the effect of ads is not feasible. Moreover, if an ad influences a person to buy one food rather than another, no researcher can know what the alternative food might have been. Furthermore, it is impossible to say a priori what food is healthy or unhealthy. This depends not only on subjective factors but upon the person’s diet, lifestyle, exercise, and constitution. Then, given the huge amount of anti-fat, anti-obesity, pro-exercise, and pro-diet material that constantly peppers the public in every media, in supermarket ads, and on food package after food package, it is a practical impossibility to determine that fast food ads are doing anything more than offsetting negative ads. There is so much media emphasis on being thin and dieting that my spouse recently pleaded: "Leave fat people alone!" Her remark led directly to this article.
Whether or not advertising influences choices, of children or adults, nanny-statists will automatically assume that the state is the justifiably necessary means to prevent these supposedly harmful communications from occurring. But, just as self-regulation regarding health and safety is basic, essential, and pervasive to human behavior, so is the processing of communications. It is hard to imagine many facets of life that are more basic.
Granted that children do not have fully-adult capacities and experience to understand and interpret messages, should parents abdicate their responsibilities to help children and instead delegate them to government bureaucrats? The logical end of such a process is that the state controls communications and the raising of children, while destroying the critical role of the parents in raising children. The result is to degrade the natural processes of knowledge and culture transmission that occur within families. No society can prosper if family destruction proceeds very far.
Building upon analogous arguments about providing healthy education to children, parents already remove their children to public schools. The results are dire.
Parents have the specific knowledge of when and how to help their children learn to cope with all sorts of messages and ideas. And this knowledge varies from family to family and child to child. A man who has fished a mountain lake for a few years knows when and how to fish that lake. He has specific knowledge. If a distant bureaucrat establishes the fishing rules, gear, and techniques for every fisherman in every lake in the U.S., a much lower success rate is guaranteed.
The health and safety of adults should be their individual responsibility. The health and safety of children should be first and foremost the responsibility of their parents. As children mature, they should acquire responsibility over themselves.
The primary mode of regulation called for when we confront safety, health, and communication issues should be self-regulation.
Self-regulation is the natural mode of confronting life’s problems because it reflects individual values and it mobilizes individual actions in alignment with appropriate incentives.
Government regulation not only undermines individual values and the proper incentives, but it replaces the natural system with an ill-functioning and unjust system that causes societal and civilizational decline.