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California’s Extreme Makeover

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California’s Extreme Makeover

Miller Op-ed in Tech Central Station

If <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />California truly is the bellwether for the rest of the country, get ready for more government intrusiveness in your life. The legislative Sages of Sacramento are emulating European-style over-regulation: They plan to ban the traditional production of foie gras, and now a state senator and an assemblyman, both Democrats, have crafted two Europe-inspired bills to protect us from the trumped-up dangers of cosmetics.

 

From a health and safety perspective, the relative risks posed by chemicals in cosmetics are so incredibly minute and theoretical they hardly warrant our attention. The FDA regulates cosmetics and their ingredients in a manner similar to foods. A cosmetic is adulterated and cannot under penalty of law be sold if "it bears or contains any poisonous or deleterious substance which may render it injurious to users under the conditions of use prescribed in the labeling." Manufacturers who market an adulterated cosmetic product could face both civil and criminal penalties.

 

In a state that has real problems with energy prices, automobile congestion, unaffordable housing and huge fiscal deficits, why the preoccupation with an issue that poses, at most, de minimis risks to consumers? As with most crimes of passion, this one begins with a motive. In 1989, environmental activists discovered—via the completely bogus Alar-and-apples scare—that if they can't eliminate chemicals through solid scientific evidence, they can bully them off the market by pressuring companies and by issuing the-sky-is-falling warnings to consumers. Having worked their way through the food, toy and medical device sectors (to name a few), the activists have turned their attention to cosmetics as the latest consumer segment ripe for fear-mongering.

 

As they have previously, activists are attacking a category of chemicals called phthalates, which are sometimes found in products such as fragrances, hair spray and nail polish, wrongly alleging that their presence at any level is sufficient grounds to incite panic and cause regulators to yank products. And, now, by aligning themselves with highly motivated breast-cancer groups suspicious about the health impacts of any "environmental toxins"—in spite of the fact that not one has been shown to cause breast cancer—they have deftly converted a scientific question into an issue of the exploitation of women. 

 

While the political appeal of "standing up for breast-cancer victims" is undeniable, ridding the world of nonexistent health threats by banning safe chemicals or requiring excessive (and often inaccurate) product labeling requirements, as these bills would do, will not make women safer and healthier. And it is a bad public policy precedent, in the tradition of California's idiotic Prop 65 (which requires the warnings in virtually every business establishment that carcinogens or toxins are present).

 

But the real concern here is not the fate of a few unfairly maligned chemicals, or even whether cosmetics makers will escape the clutches of Sacramento's nanny-state legislators. It is whether our elected officials will come to their senses and realize that California isn't just a version of Europe with better weather and more earthquakes. (Could they possibly have become confused by the governor's accent?) Although we may wish to defer to Europe on matters relating to existentialist philosophy and anachronistic pomp and ceremony, it is the last place on earth we should look for regulatory guidance. The highly risk-averse regulators of the European Union have raised to a high art form the obstruction of innovation and the free market.

 

Central to Europe's strategy to remain globally competitive with the U.S. and Asia is to "lead through regulation"—in other words, attempting to export to America and the rest of the world the same smothering level of counterproductive and burdensome regulation that has made the formerly robust EU an economic basket case.

 

Eager allies in this regulatory invasion are the powerful, global environmental NGOs that invoke the virtuous-sounding Precautionary Principle to support proposals like the current legislative assault on pthalates. Superficially, the Precautionary Principle seems merely to promote the better-safe-than-sorry theory of policy making, but turning rational analysis on its head, Precautionary Principle devotees argue that when a 100 percent guarantee of safety cannot be proven (and it never can), we should be prudent and ban altogether the product, process or activity in question.

 

As noted historian Paul Johnson anticipated several years ago, the Precautionary Principle "combines fear of technology, hatred of capitalism, and a compulsive itch to interfere." It is obsessed with whatever scare du jour elicits the "maximum of public apprehension" with the "minimum of public understanding." It is not science. It is politics by other means.

 

The many Californians who subscribe to the myth that regulation and consumer protection are synonymous will not be kept up at night by the prospect of another layer of anti-business, anti-science "public health regulation" superimposed upon our already bulging bureaucracies. Well, they'll just have to rely on the tooth fairy to generate new wealth and jobs.

 

There are no free lunches. We all pay for bad regulation in the end, one way or another. As University of Texas economics professor Frank Cross has concluded, the "unsupported presumption that an action aimed at public health protection cannot possibly have negative effects on public heath" is the Precautionary Principle's "truly fatal flaw."

 

California legislators are wrong to spend tax dollars on a dubious endeavor that will leave fewer resources for far more critical public health measures. Europe is a great place to visit, but you don't want to live with its plumbing or its regulation. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />