The New York Times reports that industry is nowactively seeking regulation by the federal government.
The unintended consequences aspect of this is that once the regulatory mechanism was in place and once the mechanisms for creating regulations were in place, industry (understandably) attempts to use those mechanisms for its own benefit. Of course those mechanisms were intended to make products safer for the consumer, not more profitable for industry. Therefore this use of the regulatory system by industry for its own benefit is an unintended consequence of the establishment of that system.
After years of favoring the hands-off doctrine of the Bush administration, some of the nation’s biggest industries are pushing for something they have long resisted: new federal regulations.
After years of favoring the hands-off doctrine of the Bush administration, some of the nation’s biggest industries are pushing for something they have long resisted: new federal regulations. …
But industry officials, consumer groups and regulatory experts all agree there has been a recent surge of requests for new regulations, and one reason they give is the Bush administration’s willingness to include provisions that would block consumer lawsuits in state and federal courts.
Such pre-emption clauses were included, for example, in a drug label rule issued by the Food and Drug Administration in 2006 and in a new fire-prevention standard for mattresses imposed by the Consumer Product Safety Commission in July, said David C. Vladeck, a professor at the Georgetown University Law Center.
The pre-emptions bar consumers from filing liability claims in courts and supersede any tougher state regulations, extremely valuable protections for a major manufacturer, Mr. Vladeck said. “This is Christmas,” he said of industry, “this is their wish list.” A number of businesses are seeking such pre-emptions, though the clauses are being challenged in many courts.
Concerns about competition have led to other proposals. As imports from China have grown in recent years, low-priced Chinese products that do not meet voluntary industry standards have motivated trade groups to seek new safety mandates.
After a series of recalls this year, for example, American toymakers recently asked the federal government to allow the Consumer Product Safety Commission to require premarket safety testing of all toys.
The all-terrain vehicle industry for years opposed mandatory standards dictating the way they build their machines. But the industry has changed course as it lost market share to lower-priced Chinese-made A.T.V.’s that do not meet voluntary standards, including some with inadequate brakes and top speeds that exceed guidelines. …
The willingness of state legislators to enact their own regulations or attorneys general to join together to go after companies has also inspired industry groups to seek new federal regulations. California and Oregon, for example, enacted laws requiring antifreeze manufactures to include a bitter-tasting additive to their formulas to help prevent children and pets from drinking it. That was enough to convince the trade group to drop its opposition to a federal standard and come forward in an alliance with the Doris Day Animal League to propose a new mandate, which included liability protection against any claims filed related to the change in the formula. Environmental groups, though, object to the proposed solution, saying the additive could pollute water.
Some of the broadest shifts by industry have come as Congress, now controlled by Democrats, is indicating that it is serious about taking up major regulatory changes, including tobacco regulations, a possible increase in fuel efficiency standards and legislation addressing climate change, which could affect factories that manufacture thousands of different products.
“They are coming forward, trying to shape the debate with their own proposals so that when activist legislators start writing the new laws, they are included,” said Rena Steinzor, a professor of environmental law at the University of Maryland and a former federal regulator. Ms. Steinzor said she was surprised recently when several major corporations sought her help in negotiating with environmental groups.
The slow response by the Bush administration to several of these proposals has been a source of frustration to some industry groups.
“We have had a very, very uphill battle trying to get regulation,” said David H. Baker, a lawyer for the Lighter Association. The organization, representing cigarette lighter manufacturers, has been seeking a mandatory standard because unsafe, inexpensive Chinese imports were flooding the market, but staff members at the Consumer Product Safety Commission recommended against such a rule, saying the number of deaths and injuries did not justify it.
Similarly, the Bush administration is opposing legislative efforts, endorsed by popcorn makers and health and labor groups, that would impose strict limits on the levels of fake butter that can be found in the air in microwave popcorns plants. An ingredient in synthetic butter can cause deadly lung damage in workers, but the administration says the science on the issue is not conclusive. …
“It’s a little unique when both consumer groups and industry associations are out there saying that we need new regulations, and the government doesn’t agree,” said Jenny Scott, vice president for food safety programs of the Grocery Manufacturers Association.
Ms. Dudley, of the Office of Management and Budget, said the Bush administration was not trying to block regulation requests. “There is no effort to delay anything,” she said. “We are not trying to stop these things from occurring.”
Robert Shull, deputy director for auto safety and regulatory policy at Public Citizen, a consumer advocacy group based in Washington, said his organization and other consumer watchdogs would be keeping close tabs to see if these different proposals amounted to more than simply “opportunistic attempts to avoid real regulation.” But Mr. Shull said he was encouraged that at least some companies appeared to be coming forward with meaningful ideas.