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October 07, 2007

Comments

Come on now. Had the sealant been manufactured in China, we'd see immediate action.

Wait until someone finds out that there is someone with Iranian ancestry employed by the company (and be it a cleaning woman) or that someone donated money to a Dem candidate [/snark]

My attitude on this would probably be considered a little harsh: There are a lot of jobs around the house that you simply can't do without toxic chemicals. (People, I implore you, do NOT drink drain cleaner!) And there are people who are abnormally sensitive to those chemicals, and/or who don't follow directions.

IOW, I'm not at all sure that it's fair to characterize this product as defective. Even non-defective products for some jobs are going to result in some people getting hurt. And it really pisses me off as a do it yourselfer that it's getting increasingly difficult for me to do some things because somebody somewhere had a respiratory problem, and used the product in a closed room.

Bottom line, don't think that with a properly functioning system nobody is going to get hurt by products. You have to balance products being somewhat dangerous against them not working very well; Saws have to be sharp, after all, and some people are gonna be fumble fingered.

For all I know, it may be a defective product, in the sense of being a lot more dangerous than is actually necessary for it to work. I just can't conclude that from the linked article.

Brett, any product which is dangerous to use in an enclosed room needs to say so, on the label, in big clear letters. If this product didn't have that warning on the label, or if it was dangerous to use even in a well-ventilated room unless you have a breathing mask to avoid inhaling fumes, then that's a product fault.

Speaking as a former technical writer: if the documentation (which includes stuff like the instructions/warnings on the label) is faulty so that the product will not be used safely, the product is faulty.

Let's see:

"its label boasted, any extra spray would 'evaporate harmlessly,'" but,

"instead of watching football that afternoon, Dr. Friedel, a 63-year-old physician, ended up being rushed to the hospital, where he would spend four days in intensive care, gasping for air, his lungs chemically inflamed."

Yes, "saws have to be sharp," but they shouldn't be advertised as dull. And, if a company knows that its product is harming people, the company has a responsibility to act to reduce or eliminate that harm, either by altering the product or detailing the risks clearly and visibly so that consumers can make informed decisions.

Brett:

"For all I know, it may be a defective product, .."

Dr. Friedel, of course, purchased the product and used it, presumably thinking to himself, "For all I know, it may NOT be a defective product."

Now, you both know. Or, maybe you don't.

Let me get this straight. O.K., you don't care for the nanny state. You prefer that the free market transmit the information about the relative defectiveness of products without interference from the gummint.

Yokay, nothing wrong with that. Seems like a needless little mystery game for all of us, but life can be boring without its attendant risks of burning, scarring, and mutilation.

But, Dr. Friedel spends a little time in the hospital with possible scarred lungs, and you still don't know squat about the product. Maybe it requires ventilation; maybe not. We don't know what parts per billion of free-flowing air is required.

And, we certainly don't need any information on the label whatsoever, because that would kill the suspense. Remember, every statute requiring information like ingredients, effectiveness, risks, etc, has been opposed by every industry.

I, for example, oppose placing the skull and crossbones warning on deadly poisons, because I get a libertarian kick out of my neighbors, the dummies, getting their deadly poisons mixed up with their dining condiments.

We, the free people of America need a heads-up periodically in the form of poisoned corpses to make us more careful about the mayonnaise and the malythion, which I can't spell because I remove all labels on all products for the thrill of the blind taste test.

Obviously, the free market requires more time to collect, collate, and transmit this information. We don't have an adequate data base yet. Be patient.

Also, many manufacturers have inventory of questionable products to unload. I wish Dr. Fiedel would shut up about this particular product because YMMV and scarred lungs are a subjective thing, are they not? Besides, the company, whose stock I own, now hasn't had time to dump the stuff down a storm sewer in your neighborhood, or better, ship it off to Calcutta, where the free market lives, mostly in the streets.

Could you please run out and use the product under various conditions and report back to us? I need more info.

Also, there is a vaccine being developed which may or may not be effective or even detrimental. Tell you what, hit your kids up with it and we'll see what happens. If they tolerate it, I might let my kid use the vaccine as well.

If your kids croak, at least the free market lives unmolested.

By the way, I've invented a very high-tech saw which will slice, dice, and filet, not to mention cutting through titanium, a true advance in cutlery for the kitchen and the home craftsman.

To keep the busybodies at bay, Brett, would you try it out for me. I have inventory.

It has a defect, which involves dismemberment and messing up the garage wall with the pink spray of arterial blood.

I'm hoping to keep that info in the smallest possible print, hopefully not on the label. I figure once, say, a dozen folks are minced, the news will get out via word of mouth.

But until that happens, it cuts real good.

I've got inventory.

Brett said:


My attitude on this would probably be considered a little harsh: There are a lot of jobs around the house that you simply can't do without toxic chemicals. (People, I implore you, do NOT drink drain cleaner!) And there are people who are abnormally sensitive to those chemicals, and/or who don't follow directions.

IOW, I'm not at all sure that it's fair to characterize this product as defective. Even non-defective products for some jobs are going to result in some people getting hurt. And it really pisses me off as a do it yourselfer that it's getting increasingly difficult for me to do some things because somebody somewhere had a respiratory problem, and used the product in a closed room.


Abstractly, that's not an unreasonable position to take. But I don't think this is the kind of situation that you're imagining...
From the article:

Roanoke explained that the revised Stand ’n Seal formula left it with a “somewhat less chemically pungent” smell, and that, as a result, “some customers tend to use the material in poorly ventilated or enclosed spaces.”

It did not mention that a safety data sheet published by the maker of Flexipel S-22WS explicitly stated that it should not be used in aerosol form because it could cause respiratory injury. Internal company documents show that Roanoke knew that even with ventilation, the spray containing Flexipel could cause a medical reaction. A Roanoke executive tested it in an office bathroom, with the exhaust fan running.

“I actually forgot I was performing a test and found myself leaning over the floor as I sprayed,” wrote the executive, Michelle Kascak, Roanoke vice president for research, in an e-mail message to Mr. Tripodi, her boss, before the recall. After the three-minute test, Ms. Kascak wrote that she had a mild headache, dizziness and sinus irritation.

Mr. Tripodi’s reply: “Please instruct us where to send the body when the test is complete.”

Jokes aside, Mr. Tripodi made it clear that he wanted to ensure the product remained on the market.

This product wasn't used improperly. This product couldn't be used safely, and the people making it seemed not to care.

Brett Bellmore has it right: the magic of the free market will solve this problem without any need for opressive nanny-state regulation! Once word gets out of the propensity of this product to kill its users, nobody will buy it, and it will no longer be on the market, punishing its manufacturers by leaving them with only a few tens of millions in profits. Meanwhile, tort reform will prevent the crazy leftists from stiffling this kind of innovative business practice . . .

Thullen, you're being very condenscending. Is anyone here arguing against warning labels?

This seems to be one of the most open and shut cases of corporate negligence I've seen in quite some time. Not only was it not properly labelled, but it would seem that the foul-odor additives that are supposed to put the fear of god into you while using it were reduced without the company realizing it. And the aforementioned chemical that is completely unsafe in aerosol form replaced the original active ingredient without the company knowing or caring.

The google results for this product are filled with little other than trial lawyers chomping at the bit to sue these people. Makes sense to me, and I wish them luck.

That being said, the idea that there is going to be a gigantic limestone building filled with thousands upon thousands of experts that are going to objectively verify the safety of every single manufactured product sold in the United States is a technocratic fantasy.

What worries me about these calls for further regulation is that none of the political dialogue on the subject is particularly mature in terms of risk assessment. If you are worried about E. Coli, I'm sorry to say, it's because you've got nothing better to do.

It's good that you brought up the completely unwarranted hysteria about vaccines brought about by a new age cult of paranoid fanatics. The fact that you support more regulation and apparently believe in such dangers is what troubles me the most about the entire idea.

Thullen, you're being very condenscending.

Around here we prefer to spell "condenscending" w i t t y.

Is anyone here arguing against warning labels?

Wasn't Brett doing that?

It is pretty clear that Brett Bellmore did not read the full article because John Wedoff quoted the key detail. Every chemical has a Material Safety Data Sheet, and this company did not pay attention to the MSDS, and 2 people died, and 80 were hospitalized. I've worked in a lab with many dangers, but did so safely because our lab workers paid attention to details.

Brett's comment shows he has a mindset that ignores details--dismisses them, even--and he's likely injure himself with a stupid mistake in the future. I get the impression that since Brett didn't read the story, he doesn't read directions or safety warnings. Let's hope there are no children around when he does a DIY job.

Another thing:
Who is the retailer in this story?
Who do they donate to?
Who is Nancy Nord?

If you are worried about E. Coli, I'm sorry to say, it's because you've got nothing better to do.

I have some clients with a brain-damged kid who might disagree with you . . .

Around here we prefer to spell "condenscending" w i t t y.

Oh, fine, make fun of me because Google has completely ruined my once impeccable spelling. Years of having Google not care whether my fingers type the right thing or not has turned me into some sort of illiterate klutz.

Is that how you spell klutz? I don't even know anymore!

Wasn't Brett doing that?

As far as I can tell, he seemed to be arguing that often products have to be dangerous, can have proper and prominent warning labels, and people will still harm themselves.

I agree, and I think this fine. If everyone else thinks this is okay, than we have nothing to argue about.

But if everyone believe that dangerous products that are adequately labelled should still not be sold at all, then the argument continues, I suppose.

That being said, the idea that there is going to be a gigantic limestone building filled with thousands upon thousands of experts that are going to objectively verify the safety of every single manufactured product sold in the United States is a technocratic fantasy.

Uh, fallacy of the excluded middle?

If you are worried about E. Coli, I'm sorry to say, it's because you've got nothing better to do.

Somewhat yes, somewhat no. It's certainly true that a particular E. coli outbreak probably isn't worth worrying about on a purely statistical basis, any more than it's worth worrying about... well, dang near anything on a purely statistical basis. After all, the overwhelming majority of people don't die from any given hazard, so there's almost never anything to worry about!

This logic, however, omits two crucially important considerations. The first is simply that, while the odds of being subject to a given negative outcome are almost invariably low, oftentimes the result of said outcome could be catastrophic. IOW, it seems that you're only talking about probabilistic analysis, not risk analysis. [Although, from a strictly "rational" viewpoint, one could well argue that since death has infinite negative utility, we shouldn't do anything at all!] This goes double in the case of a gastrointestinal disorder that could seriously impact the health of children or the elderly. You might or might not care given your family circumstances, but I'll wager a large number of families do and that while I might disagree I can't really find fault.

[There's a larger point to be made about expected v. unexpected risk but I'm too distracted to make it.]

The second strikes me as more insidious, as do most (plausible) slippery slope arguments. Simply put, we live in an era of decreasing corporate regulation and massively increased competition -- or at least, massively increased scale of competition -- and we're at a point where dangerous corners are starting to be cut. [cf products from China, but that's really the tip of the iceberg.] Looking at E. coli in particular: as has been noted many times before, the modern food industry exists precisely because of regulation. I know that when I walk into a restaurant or supermarket, I can buy food -- even things I've never had before -- without fear; and if I get badly sick, I have meaningful recourse to compensation. I can therefore eat out more often, try new things without fear, and generally make the world a better place for me and the economy. As one decreases the regulation, however, this safety get lost, and the risks will therefore increase accordingly. The upshot -- and I think it's a heckuva lot closer than most libertarians seem to think -- is that we'll have to become more chary with our choices and the food industry will shrink rather dramatically, which doesn't strike me as a desirable outcome for anyone.

Now this is somewhat specific to the food industry, since we eat every day, and maybe the backtracing would be more straightforward in the case of household chemicals. The problem, though, is the flip-side of my first point: as the probability of error increases, it becomes more and more difficult to ascribe a negative outcome to any particular cause. Consider the hurricanes from a few years back; no individual one could, or should, be tracked to global warming, even though the aggregate could and should. Given the way our legal system works, though, it will become increasingly difficult to prove corporate negligence beyond a reasonable doubt. This is a huge problem. The standard counterargument, that the free market will disseminate the relevant information in a timely fashion, is bogus, partly as elaborated by John Thullen above, partly because it's becoming increasingly difficult to get reliable expertise on the matter. Regulatory capture is bad enough; I can't even imagine how awful "expertise capture" would be if major corporations started buying institutions like, e.g., the Better Business Bureau. In that sense, while individual regulations might well be too onerous, I think the aggregate of a well-regulated economy is -- nor matter how irksome at times -- categorically worth the price.

if everyone believe that dangerous products that are adequately labelled should still not be sold at all, then the argument continues, I suppose.

A product can be unreasonably dangerous despite warning labels. There is, for example, no good reason for an exploding hammer to be on the market, and no amount of "Warning--5% Chance of Explosion" labels ought to insulate the manufacturer from liability.

Jonas: Oh, fine, make fun of me because Google has completely ruined my once impeccable spelling.

Sorry. *sends sympathies* (I admit to a similar problem, but only on Tuesdays.) I was actually trying to convey that I thought John Thullen's comments were funny, and that generally I'll read Thullen being funny even if I have no interest in the thread. I believe there is talk of making him a Galactic Resource, since the aliens may not eat us if we can make them laugh.

Brett: As far as I can tell, he seemed to be arguing that often products have to be dangerous, can have proper and prominent warning labels, and people will still harm themselves.

Given that from the story the product used had a distinctly misleading warning label - since it should have been clearly labelled "Use only in an extremely well-ventilated room and take extreme care not to inhale any of the fumes" and instead it was labelled "extra spray will evaporate harmlessly", and that Brett saw no problem with that because everyone should know that inhaling fumes is dangerous... well, as a technical writer, I strongly disagree. Never depend on everyone knowing the things "everyone knows", if someone not knowing those things can get themselves, or someone else, killed. Some aerosol sprays are safe to use in an enclosed room: some are not. A spray that's supposed to provide shower grout is a spray that has a high chance of being used in an enclosed room, and should therefore be clearly and plainly labelled if it is not.

Whoops, sorry, that second italicized quote is still Jonas.

I'm torn on this case because I agree that the CPSC failed here, but I really don't like the way the NYT reports it, because the language used paints a very wrong picture of how things work. I'm just going to quote and comment.

"Dr. Friedel was the latest victim of a product whose dangers had become known months earlier to the Consumer Product Safety Commission and the companies that made and sold it. Before Dr. Friedel bought Stand ’n Seal, at least 80 people had been sickened using it, two of them fatally."

I always hate seeing things like this because I know the NYT uses 'sickened' really loosely and I've heard the consumer calls for a product that you could easily bathe in without significant problem. [sigh]. I would almost wish they would just say that two people had died, it gets the point across without the likelyhood of being misleading.

"Court documents show that, as the case unfolded, the product’s maker, BRTT, appeared at times to be more concerned with protecting its bottom line than with taking steps to ensure that the hazard was removed. That meant that hazardous cans of Stand ’n Seal remained on the shelves for more than a year after the 2005 recall."

I actually have a useful comment here. Don't look so surprised. This is almost certainly the result of the recent spate of what I call "Non-recall recalls". An increasing number of 'recalls' are for non-crucial problems where the company is pretty much just trying to cover its butt against frivolous lawsuits by adding new warning language (which all the tests strongly confirm that pretty much no one is reading). As a result, much of the CPSC's time is spent managing 'recalls' where the product isn't actually being removed from the customer's hands. This is surely distracting from the recalls where things should actually be pulled back.

"And the product that BRTT initially rushed to put in its place — and which Dr. Friedel and others bought — contained the same chemical that had apparently caused injuries in the first place, the company and Home Depot now acknowledge."

This is where the company is almost certainly at fault, because the Material Safety Data Sheet (MSDS) for the new ingredient said it shouldn't be aeresolized. What I don't understand about the case is why they didn't go back to the old formulation.

"In another case, an 11-year-old Colorado boy, Tyler Himmelman, had stopped to speak to his father, who was using Stand ’n Seal on a bathroom shower, when the boy began coughing, struggling to breathe and then vomiting. He, too, ended up in the emergency room, where doctors said about 80 percent of the surface area of his lungs had been damaged, said Sandie Himmelman, his mother."

This one irritates me, not because I don't feel for Tyler's end result, but because I can just short of guarantee you that this is not what happened to cause his exposure. (My guess, the parents actually had the kid spraying it as a chore and they didn't want to admit it, or he got it sprayed directly on him by accident). I know it is a small point but I've seen too many consumer complaints to not be suspicious about how the exposure came about on this one.

"Federal law requires manufacturers to notify the Consumer Product Safety Commission within 24 hours after determining that a product defect might present a health hazard. In this case, several weeks passed before that report was made; it was not until mid-June 2005 that Roanoke notified the agency, and only after a physician from the Rocky Mountain Poison and Drug Center in Denver, which also had been getting calls from emergency room doctors, told Roanoke that he planned to call the commission on his own."

This is a very bad action on the part of the company and should have served as a red flag to the CPSC.

"Roanoke explained that the revised Stand ’n Seal formula left it with a “somewhat less chemically pungent” smell, and that, as a result, “some customers tend to use the material in poorly ventilated or enclosed spaces.”

It did not mention that a safety data sheet published by the maker of Flexipel S-22WS explicitly stated that it should not be used in aerosol form because it could cause respiratory injury. Internal company documents show that Roanoke knew that even with ventilation, the spray containing Flexipel could cause a medical reaction. A Roanoke executive tested it in an office bathroom, with the exhaust fan running."

This is bad action by the company. But the reporting is annoying to me here again. I can't find an old copy of the Flexipel S-22WS MSDS sheet (the new one is super-explicit, but I'm betting that is post-litigation). But the fact is that almost every product in a soluble form nowadays is going to be listed as having a risk of causing respiratory problems. I can't judge what it did to THIS CASE, but I can tell you that the habit of overlabelling hazards has diluted the efficacy of true hazard warnings.

Anyway, I suspect that this particular case has a lot to do with the corporation acting badly combined the proliferation of trivial pseudo-hazards stretching the CSPC too thin.

Anarch,

Uh, fallacy of the excluded middle?

Fair enough. But I can't help but think that is precisely what people are expecting to exist when even the smallest incident is held up as indicative of a regulatory vacuum.

It's certainly true that a particular E. coli outbreak probably isn't worth worrying about on a purely statistical basis, any more than it's worth worrying about... well, dang near anything on a purely statistical basis. After all, the overwhelming majority of people don't die from any given hazard, so there's almost never anything to worry about!

I'm not saying there nothing to worry about, so much as I'm saying the worrying is pointless. I'm willing to bet if one itemized a list of all known risks to health and life statistically equivalent to E coli, one would have no time left in the day to anything else.

And it's been my understanding, which may be mistaken, that the E Coli outbreaks are considered to be a curious phenomenon related to a combination of less robust immune systems and stronger, mutated strains - but I suppose shoehorning this into a partisan narrative about Republicans and free market dystopias is too tempting to resist.

No one yet has bemoaned the lack of federal oversight over petting zoos. But I guess if we're all going to be this paranoid, we may as well.

IOW, it seems that you're only talking about probabilistic analysis, not risk analysis.

I know we can find far more probable causes of death to worry about and prioritize accordingly. Isn't that what a risk analysis would suggest, or am I completely misunderstanding?

I know that when I walk into a restaurant or supermarket, I can buy food -- even things I've never had before -- without fear;

Our central disagreement is likely whether or not the elimination of fear should be the goal as opposed to the informing of risk. I would prefer informing of risk, as it strikes me as absurd to think that the attempted regulation of my emotional states is a legitimate function of government.

And, hell, I would just like to eat raw milk and cheese and be left alone. Dominic DeMarco has been making pizza with his bare hands for half of a century and I couldn't possibly care less, but the city shuts him down because people apparently prefer a paranoid totalitarian regulatory regime.

I can therefore eat out more often, try new things without fear, and generally make the world a better place for me and the economy.

You can eat out more often, and I can't actually eat what I'd like to. We can compromise, or you can make me not take risks because you'd rather they didn't exist at all.

In that sense, while individual regulations might well be too onerous, I think the aggregate of a well-regulated economy is -- nor matter how irksome at times -- categorically worth the price.

I think the vast majority of people would not support Politicians who would completely deregulate everything if those who supported regulations were diligent about making them sensible while respecting people's rights.

MSDSs for sodium chloride and sucrose, for your baking plans.

Anyway, I suspect that this particular case has a lot to do with the corporation acting badly combined the proliferation of trivial pseudo-hazards stretching the CSPC too thin.

I can't possibly think of an alternative reason why the CSPC could be stretched too thin...

Jes,

Given that from the story the product used had a distinctly misleading warning label - since it should have been clearly labelled "Use only in an extremely well-ventilated room and take extreme care not to inhale any of the fumes" and instead it was labelled "extra spray will evaporate harmlessly", and that Brett saw no problem with that because everyone should know that inhaling fumes is dangerous... well, as a technical writer, I strongly disagree.

As do I. But I don't think that's what he meant - I think he was worried (as am I) that people were found the idea of a dangerous, poisonous sealant objectionable, as opposed to completely irresponsibily labelled.

From the MSDS sheet for sugar: "CAUTION! MAY FORM COMBUSTIBLE DUST CONCENTRATIONS IN AIR. NUISANCE DUST. HIGH CONCENTRATIONS MAY IRRITATE EYES AND RESPIRATORY TRACT."

Ugh.

"I can't possibly think of an alternative reason why the CSPC could be stretched too thin..."

I'm sure you can think of one, that doesn't mean you are actually right. Is this like the homeless thing, where people seem to forget the e coli breakouts unless a Republican is in office?

Does anyone have access to the CSPC budget numbers? I'm sure they are floating around somewhere, but I can't find them right now. If there were dramatic cuts, I'd be willing to entertain Pooh's idea more seriously. Otherwise I think mine is more likely.

Are those sheets for industrial uses w/ massive quantities & high exposure, or consumer use? Seems like it would make sense to have two sets.

I know Sebastian's always happy to sneer some at people with concerns for their safety he disapproves of, but there's a possibility besides that and budget constraints (if any, I don't have numbers on them either):

Modern industrial practice in many fields may have gotten less safe in recent years, thanks to business culture pressures toward economy on many fronts. There's nothing logically unsound about accepting higher costs and aiming for a slightly pricier market in most sectors of the marketplace, for instance, but there are significant cultural pressures within the business community these days against anything in between cost minimizing bargain basement and really luxurious luxury niches. In such a situation, reports of threats to consumer safety could easily multiply and be entirely justified.

I think this is the case, in fact, though I can't prove it. I've read accounts over the years of the pressures on, for instance, Wal-Mart suppliers to keep slashing their cost to Wal-Mart every year. That creates a lot of bad incentives to cut corners. And there are a lot of managers, stock buyers, and others who think that's a fine way to run a business and psuh for comparable cutbacks elsewhere. The widespread acceptance of work hours so long that they demonstrably impair productivity is part and parcel of the same outlook. Capitalistic business doesn't have to work this way; it's just that prominent players choose to, and followers, well, follow.

Cutbacks that reduce safety will almost always be defended by the perpetrators and the fans of doing unsafe business in the name of efficiency, and critics will often be told that this is market forces at work and therefore it's inevitable. These defenses are, however, wrong, just as wrong as the assumption that people bringing new complaints are probably just being whiners who should suck it up and accept rates of injury, loss of utility, and death that previous generations didn't.

Is this like the homeless thing, where people seem to forget the e coli breakouts unless a Republican is in office?

poor Republicans... while they push for looser regulations, bad things happen because regulations aren't tight enough.

"I know Sebastian's always happy to sneer some at people with concerns for their safety he disapproves of..."

Look, I do sneer more than I should but let's go to the tape:

[Sebastian]Anyway, I suspect that this particular case has a lot to do with the corporation acting badly combined the proliferation of trivial pseudo-hazards stretching the CSPC too thin.

[Pooh]I can't possibly think of an alternative reason why the CSPC could be stretched too thin...

I gave my honest-to-God opinion on what I think is more likely to be the balance of the problem with CSPC (note I don't deny the existance of a problem, I talk about what I think is its more likely cause). I deal with MSDS sheets on a semi-regular basis. I have dealt with the CSPC. I know medium amounts about product recalls and the rise of the 'warning' pseudo-recall.

My point about the e coli breakouts wasn't even particularly snarky--they happened under Clinton too and at it wasn't considered proof that Clinton had abandoned the FDA or that the world was coming to an end.

I'm not sneering here. I think on balance, the crush of trivial claims overloads the system contributing to errors in more serious cases. I'm not sure what to do with it, but focusing on the real problem if I'm right about it is likely to be better. I think the same thing about the court system--imagine what our court system could do if they didn't have to deal with thousands of stupid low-level drug cases.

Here's my solution to things like this. See if seems fair to you.

When you have a situation like this:

But even then, with the threat well-documented, the manufacturer, retailer and the commission had failed to remove the hazard from the shelves.

And then someone dies because the product wasn't recalled, whoever made the decision to not recall the product goes to jail for negligent homicide. If "whoever" is plural, jail them all.

If someone is merely harmed but not killed, dial it back to whatever the appropriate charge would be if you or I left a hazardous chemical around and someone was poisoned by it.

For "whoever" above, please include both principals in the company and responsible parties in the regulatory agency if you like. I wouldn't want to just pick on the private sector.

Tell me why this isn't fair.

Thanks -

Tell me why this isn't fair.

it pretty much defeats one of the main benefits of forming a corporation: limiting personal liability for the acts done in the name of the corporation.

Seb,

I know nothing specific about CSPC, but am I crazy for noting that enforcement of regulation has been intentionally relaxed for everything from mine safety to food purity, and hypothesizing that this is more of the same? Yeah, I was being snarky, but your implicit claim that it's the fault of consumers for actually expecting protection from the an agency tasked with consumer protection rankles me. Your point about 'e coli conservatism' might even be well taken if we didn't have so much evidence of corporatism trumping safety by a large margin under the current administration. Or, we could simply operate with no memory of past events, like Lenny from Memento, and rationalize each incident as if it happened in a vacuum.

(Also, FWIW, a part of my firm's practice is products liability, and this is a "settle and do it now" case for the manufacturer, and an instance were the persons who work(ed) at CSPC should feel very thankful for sovereign immunity.)

What is the chance that some mid to low level technical director ends up in jail rather than the people you want? Pretty good I suspect.

it pretty much defeats one of the main benefits of forming a corporation: limiting personal liability for the acts done in the name of the corporation.

Yes, I understand that. I also understand why limited liability exists, and why it's seen as being a good thing. I even agree that it often is a good thing.

Stuff like this, however, makes me believe that that protection is being abused, and needs to be reconsidered.

If folks aren't comfortable with that, I'd suggest instead that the corporate charter be pulled. If the officers of a corporation cannot act exercise the privilege of the corporate shield responsibly, take it away. No more corporation.

Here's a funny story. A woman was killed last year when a concrete ceiling panel in one of the new "Big Dig" tunnels here in Boston fell on her while she was driving through the tunnel. It turns out that an improper cement was used to secure the panel.

The State AG in MA decided to press criminal charges -- one count of involuntary manslaughter -- against one of the companies responsible. The maximum possible penalty for a criminal guilty verdict for involuntary manslaughter was a fine of $1,000.00.

Maximum penalty.

What maximum penalty would I face if I, personally, created a hazard that resulted in the death of someone else?

So I understand the rationale behind limited liability, but the kind of egregious behavior hilzoy cites is, IMO, inexcusable. There should be a limit beyond which the corporate shield cannot protect you.

Thanks -

From the MSDS sheet for sugar...

yeah, only an idiot would pay attention to those silly regulations about potentially explosive dust.

As a non-lawyer, I thought the corporate liability shield covered only civil matters - debts, etc., - and did not extend to criminal behavior by an individual on behalf of the corporation.

Does a CFO who wilfully files a false corporate income tax return, for example, have no personal criminal liability? What about a CEO who murders a key scientist who works for a competitor?

If I'm wrong, why is Jeff Skilling in prison?

"Yeah, I was being snarky, but your implicit claim that it's the fault of consumers for actually expecting protection from the an agency tasked with consumer protection rankles me."

Huh? I honestly don't think I even came close to that claim. I thought the claim I was making was that the failure (suggesting that I believe there was actually a failure) was strongly contributed to by a the overload of trivial claims.

"What maximum penalty would I face if I, personally, created a hazard that resulted in the death of someone else?"

If it was involuntary manslaughter, $1,000 in MA.

What's your evidence for the overload of trivial claims, Sebastian? Where are the claims recorded, and how do you know they are trivial?

Russel: after the Big Dig contractor is (presumably) found guilty, the victim's heirs can walk into a civil court and sue that company into a smoking hole in the ground. They probably won't even need a lawyer--there's no defense that the company can mount.

Howdy: First, sorry for screwing up the title, now fixed.

Second: I cited this specifically because it seemed to involve pretty clear malfeasance plus inadequate follow-up by the regulatory agency. There's no reason Brett should be expected to read my mind, but fwiw: I would not have posted an article about someone who decided to bring his toaster into the bathtub as evidence of inadequate regulation.

My own view is that if there's a way to make it harder for people to win lawsuits for damage caused by their own stupidity without making it harder for them to win in cases of genuine malfeasance, where malfeasance does not include e.g. failure to make toasters bathtub-safe, I'm all for it. I also think that one way to help solve these problems would be precisely to have a well-funded consumer product safety agency that actually spotted and dealt with some reasonable number of safety problems before people started dying. (I tend to accept the view that when regulation breaks down, litigation increases.)

I do not think this has to mean "a gigantic limestone building filled with thousands upon thousands of experts that are going to objectively verify the safety of every single manufactured product sold in the United States", any more than I think that e.g. a highway police force that reduces deaths from accidents has to involve gazillions of jackbooted officers capable of surveying every inch of highway at all times. I would not favor establishing either this highway police force or the fantasy consumer protection agency capable of verifying everything. In both cases, the costs, both financial and other, would be too high. But as was said above, there are other options. And I don't think the Bush administration has got the balance right.

I know we can find far more probable causes of death to worry about and prioritize accordingly. Isn't that what a risk analysis would suggest, or am I completely misunderstanding?

Not necessarily, no. There is, for example, a risk of death attendant with crossing the street, but it's a risk I choose to take because the alternative lifestyle is essentially impractical; I have to take that risk to live in this country. That doesn't mean I approve of it, or choose to embrace it, modulo my willingness to leave the US for good. Risk from contamination of food products, on the other hand, is a completely preventable form of risk, one which is relatively easy to avoid, which is not particularly onerous and which has allowed a sector of the economy to flourish as never before. Yes, such regulation will restrict your choices, unto which I say: tough. That's part of living in a civilized society. By all means work to overturn excessive or stupid regulations, but try to overturn the whole framework at your quite literal peril.

[And you're also assuming that all risks are equivalent, e.g. that the sole negative utility to be derived is from death. This is... well, it's not irrational, but it's inadequate. Frankly, most people are cooler with a car accident than with being poisoned. You can deride their valuations all you'd like, but since all such comparisons are "rationally" arbitrary you can't really make the case that it's "irrational" to fear one over the other.]

Our central disagreement is likely whether or not the elimination of fear should be the goal as opposed to the informing of risk. I would prefer informing of risk, as it strikes me as absurd to think that the attempted regulation of my emotional states is a legitimate function of government.

I think you're taking the word "fear" too literally here. Call it "negatively adjusted evaluation of risk" if you prefer. And to that end, the government does indeed have a legitimate function in minimizing unnecessary risks thereby assuring the welfare of its citizens. It isn't an unlimited function by any means, which may be the point of contention here, but that's not the same thing.

And, hell, I would just like to eat raw milk and cheese and be left alone. Dominic DeMarco has been making pizza with his bare hands for half of a century and I couldn't possibly care less, but the city shuts him down because people apparently prefer a paranoid totalitarian regulatory regime.

That sounds like a crying shame but, as I said above, the existence of a stupid regulation does not in any way illegitimate the notion of regulation as a whole.

Reading the article more carefully, I'm struck by two things: first, I've never been in a place where pizza making sans gloves was illegal -- in fact, the cooks at the pizza joint where I used to work would've laughed their asses off -- and second, failing numerous (?) rat inspections seems like a pretty damn egregious health problem to me, although that of course depends on the nature of the failure.

Oh, and calling it a "paranoid totalitarian regulatory regime" doesn't really do wonders for your credibility, although I think you're just indulging in rhetorical hyperbole.

You can eat out more often, and I can't actually eat what I'd like to. We can compromise, or you can make me not take risks because you'd rather they didn't exist at all.

Uh, we are compromising (for suitable definitions of "we"). In fact, I'll bet you anything you'd like that my eating habits are more adventurous than the vast majority of Americans which means that my choices are more curtailed than most, so please don't give me any crap about how I'd rather those risks "didn't exist at all". It's pseudo-libertarian piffle. I recognize the presence of risk and have embraced it more than once; what I'm saying is that it should be minimized.

I have, for example, eaten foods that improperly prepared are poisonous. As have most people, actually. I did so because, as a rational agent, I knew that the risk of their consumption was minimized precisely because the regulation guaranteed it. Had that risk been left unregulated, the rational decision would have been to have gone somewhere else. Goodbye sushi, goodbye taro, goodbye cashews, and so forth, not out of "emotional state" but out of a rational calculation of their risks. Since I'm hardly unique in this fashion, the immutable logic of the invisible hand will cause those places to fold, depriving you of your precious risks altogether. Again, this hardly seems like an optimal outcome.

But I'm curious: would you be ok with overturning the various regulations that require cooks to wash their hands? How about those regulations requiring dairy products and raw meat be kept below certain temperatures? What about the ones calling for cutting boards and prep surfaces to be sanitized? Or the ones calling for a kitchen free of vermin or rats? After all, it does nothing but add risk -- would you be willing to condone this in the name of not having someone else's risks be compromised. Oh, and please restrict your answer to the real world, not some idealized version where you have perfect information (and perfect processing of said information) about the hygiene in the back.

"What's your evidence for the overload of trivial claims, Sebastian? Where are the claims recorded, and how do you know they are trivial?"

I only know the claims I see around me, and most of them are trivial. I can't get into details because of work, and I know you aren't inclined to just take my word for it, but I strongly suspect that you would agree with me that the one's I've seen are mostly trivial. But I'd be thrilled to review it if you rustled up some harder data than that.

where malfeasance does not include e.g. failure to make toasters bathtub-safe

I'm curious: has anyone here actually dropped a toaster into a bathtub? [Bonus points if you survived the experience!] I know all the stories and movies and whatnot, but I've never really been convinced it's that much of a hazard.

...not that I'm going to try it myself or anything, just that I'm curious :)

Seb, you're likely conflating the claims you see with what the CSPC sees. Considering the differing incentives in filing a PI suit vs. reporting a company to the CSPC and this is perfectly understandable. It's why we both have jobs, I imagine.

As for your question, I think I'm reading you perfectly correctly. You think people are making too many CSPC claims. This may or may not be true, but the CSPC is there to take these complaints. And the fact that there are lots of complaints shouldn't excuse a mistake in a non-borderline case such as this.

Again, if this were an isolated incident in one agency, rationalize away. But it isn't, and just because you don't want to connect the dots doesn't mean it isn't happening.

CPSC budget info: http://blogs.consumerreports.org/safety/2007/02/cpsc_budget_rea.html

Anarch,

Yes, such regulation will restrict your choices, unto which I say: tough. That's part of living in a civilized society. By all means work to overturn excessive or stupid regulations, but try to overturn the whole framework at your quite literal peril.

There is no conceivable reason to restrict my choices absent laziness on the part of the paranoid. A city could:

1. Give restaurants a grade from A to F based on health factors;
2. The paranoid can restrict themselves to A only;
3. Everyone else can eat as they please.

This seems like a far more just and free system than the one in place currently.

Frankly, most people are cooler with a car accident than with being poisoned. You can deride their valuations all you'd like, but since all such comparisons are "rationally" arbitrary you can't really make the case that it's "irrational" to fear one over the other.

You're absolutely right. I'm describing my subjective safety standards. And I don't believe that such subjective decisions should be made on the behalf of everyone by the government.

And to that end, the government does indeed have a legitimate function in minimizing unnecessary risks thereby assuring the welfare of its citizens.

We just agreed that "unnecessary risk" is a subjective determination. I do not believe that the government can justly make a determination of what is necessary and what is not. I think skydiving an unneccessary risk. So what? It's not my business.

I recognize the presence of risk and have embraced it more than once; what I'm saying is that it should be minimized... I have, for example, eaten foods that improperly prepared are poisonous. As have most people, actually. I did so because, as a rational agent, I knew that the risk of their consumption was minimized precisely because the regulation guaranteed it.

How can you cite this as an embrace of risk when you admit the only reason you ate it is because the government made it way safer?

Had that risk been left unregulated, the rational decision would have been to have gone somewhere else.

Rational decision for you, and most people in fact. But I'm sure that some people would disagree, and that's none of your concern. Do you maintain that everyone who ate any of these dishes before the modern regulatory state existed was irrational? Please.

Oh, and calling it a "paranoid totalitarian regulatory regime" doesn't really do wonders for your credibility, although I think you're just indulging in rhetorical hyperbole.

Hyperbole? Yeah, kind of. But now that food regulation now entails things like trans-fats or preventing poor people from eating fast food, it's getting less hyperbolic every day.

After all, it does nothing but add risk -- would you be willing to condone this in the name of not having someone else's risks be compromised.

Yes. This would be a D or F graded restaurant and I would stay away. It's not my business if someone else does.

"Again, if this were an isolated incident in one agency, rationalize away. But it isn't, and just because you don't want to connect the dots doesn't mean it isn't happening."

So why comparable CSPC and FDA failures under Clinton? And similar non-failure scares. E coli breakouts really did happen under Clinton. Lead was found in toys every year just in time for Christmas stories in the newspaper. Mexican glazed pottery has shown up with lead every other year for almost my entire life. Etc, etc.

It is undeniable that the expectation for super-detailed warnings in supersmall fonts has exploded in the past 15 years or so. This has been both government (CSPC, CA Rule 66, etc.) and litigation oriented. My dealings with the CSPC have been mostly regulatory, but with cleary quite nutty consumers taking up noticeable amounts of investigation time for things that are measured in the tens of dollars.

Jonas, who is going to assess the restaurants A-F, and who is going to ensure that the restaurants make public what status they've received?

Thanks for your reply, Sebastian. Would you care to elucidate what you consider "trivial" - for example, is this incident as described in Hilzoy's post "trivial" by your standards?

Jonas, who is going to assess the restaurants A-F, and who is going to ensure that the restaurants make public what status they've received?

The health department. In most cases they already do this; I'm just saying there's no reason to shut anybody down. Unless they lie about their grade, let's say, or hide it.

C'mon kids, it's a reasonable compromise!

Jonas: I'm just saying there's no reason to shut anybody down.

I can visualize a situation where all the restaurants in a given area are owned by major chains: none of the major chains see any need to make their restaurants better than the others, since they gain nothing by doing so: all the restaurants in that area therefore skate along at status C (probably won't kill you, but not exactly healthy) and anyone who wants to eat in a restaurant that is actually clean and has rules about not chopping raw meat on the same board as cooked meat, has to drive to another area.

Whereas if the department of health was empowered to close down the filthy restaurants, the owners would have a financial motivation to keep them up to the mark...

there's no reason to shut anybody down

This assumes that the grades operate like odds. I'm more advernturous, therefore I will be more willing to eat at a restaurant down the scale. Yet there is a big difference eating at an immaculate restaurant that serves puffer fish and a place that serves hamburgers with abysmal standards. A restaurant that pays such poor attention to things that they could get right is more likely to make a mistake that could be fatal. Furthermore (after watching my DVDs of House), when people do get sick and come in to the emergency room, the grading scheme that doesn't shut anyone down begins to take its toll on the rest of society. Imagine your local emergency room taking in x number of people who then need to be put on dialysis because of some common disease that could be prevented by basic sanitary care, and getting told that the restaurant can't be closed because hey, that F is a measure of risk, not something where the government is going to act on that information.

If it was involuntary manslaughter, $1,000 in MA.

I think you'll find that jail time for the offender is also involved. It's MA general law, chapter 265, section 13.

after the Big Dig contractor is (presumably) found guilty, the victim's heirs can walk into a civil court and sue that company into a smoking hole in the ground.

Yes, that's true, and I suppose it's a remedy of a sort. Somebody, somewhere, however, made a decision that resulted in harm, and other than (perhaps) needing to find a new job that person is not held accountable.

My understanding of the purpose of limited liability is that it encourages the formation of capital by allowing folks to invest without finding themselves liable for harm caused by the actions of the corporation. If I'm understanding it correctly, the folks we're talking about here -- executive and operational management -- aren't really the people liability was intended to shield.

If a officer at Dow Chemical (for example) decides to bury toxic chemicals in a landfill and a thousand people turn up sick, it makes sense to me to shield a shareholder in Dow from criminal and/or civil liability. It does *not* make sense to me to shield the guy who made that decision. He should be, personally, liable for criminal prosecution.

To be clear in this case -- if the manufacturer had simply put an accurate warning label on the bottle, IMO they'd be off the hook. They would have done their due diligence to offer a product that is safe for use as recommended. They did not do so, even though they had enough information in hand to know that the product was not as safe as was described.

I don't know how my druthers line up with the current state of the law or its practice. To me, it just seems like a fundamental issue of fairness and accountability.

Thanks -

"It is pretty clear that Brett Bellmore did not read the full article because John Wedoff quoted the key detail."

Yeah, I commented before reading far enough to get to the bit about the MSDS sheet. My bad. But I stand by the general principle: Any sane level of regulation is going to have products on the market that can maim or kill, because danger is inherent in some kinds of effective products, and they shouldn't be denied to the rest of us just because some people are abnormally sensitive or careless.

Brett, that's all well and good, and I agree with so far as it goes. But it has no application whatsoever to this situation.

Do you maintain that everyone who ate any of these dishes before the modern regulatory state existed was irrational? Please.

We did not always have a regulatory state. Probably for more years than not. And, in fact, folks were not falling dead in the streets right and left.

We also used to have a society where the food you ate was either grown and processed by you, or by someone you knew personally. Most likely they lived in your town or county.

Your house was built by you or someone you knew, primarily using materials either you or someone you know created from raw stock.

Same for clothes and most dry goods.

Water came from a spring or river, and most folks had the good sense to not go to the bathroom near their water supply.

If you'd like to return to that world, it would be kind of OK with me. I'd miss avocados, but other aspects of my quality of life would probably improve.

That's a pipe dream, however, because we're never going back to that world. We live in a different world.

The regulatory state emerged in the world we actually live in, and have lived for the last 150 years, because it was, and is, necessary. By and large, it did not emerge as a result of bored civil servants looking for new and interesting venues to exert their power. In general, it emerged in response to public demand, and in response to quite a number of more or less egregious abuses and bad actions on the part of the industries that were regulated.

It emerged because it was needed, and it still is.

We'll all have our differences of opinion about where the line between regulation and a more laissez faire approach should be, but without the regulatory state, lots of industries would basically disappear.

After the first couple of times something you picked up in the grocery store made you sick, you'd never shop there again. We'd be back to a purely local economy in a generation.

Either that, or we'd be back to a regulatory state.

Thanks -

Jesurgislac,

I can visualize a situation where all the restaurants in a given area are owned by major chains: none of the major chains see any need to make their restaurants better than the others, since they gain nothing by doing so... the owners would have a financial motivation to keep them up to the mark...

You're really saying there would be no financial motive to being the only restaurant in an area with an A? That it wouldn't help sales at all? I just don't get it, Jes.

LJ,

A restaurant that pays such poor attention to things that they could get right is more likely to make a mistake that could be fatal.

Okay, people have to put a picture of anyone who dies from eating at their restaurant in the window, with it labelled as such. A big one, at that.

Furthermore (after watching my DVDs of House), when people do get sick and come in to the emergency room, the grading scheme that doesn't shut anyone down begins to take its toll on the rest of society.

By this standard, any activity with the potential to cause serious hospitalization is "taking a toll on the rest of society." Let's ban motorcycles & football by this standard immediately, as I have little use for either.

"Thanks for your reply, Sebastian. Would you care to elucidate what you consider "trivial" - for example, is this incident as described in Hilzoy's post "trivial" by your standards?"

No, the kind of stuff in the post isn't, but some of the totalizing language used by the NYT in the description lead directly to the kind of trivial stuff I'm talking about.

The kind of trivial I'm talking about is "I obviously handled the thing improperly and it stained my manicured nails. It needs better labeling". "I threw the thing on the ground and it got [mysteriously no doubt] punctured with a nail and dented my dishwasher". Or "It stained my clothes".

We so need to all meet in person just so I can tell you the crazy people stories.

And sometimes the 'harm' is not trivial but the claim still is: "I thought it would be a good idea to clean out a wound with your industrial chemical (not even close to a cleaning prodcut), your product says 'not for internal use' but it doesn't say anything about not cleaning wounds". I can't go into greater detail, but I swear it is on the order of "it doesn't say on the toaster that you can't put it in the microwave so the toaster company must be to blame that my microwave blew up".

Why is putting a picture up of someone who dies preferable to actually shutting the restaurant down? Put a picture of the person, preferable downloaded from the internet, running thru a park with a big smile. Ah-ha, you say, trying to get around the purpose of the picture, so you mandate that it is a picture taken of them on the slab. Create a Department of Mortuary Photographers. Whoops, too much government, get them to outsource it. By doing these contortions to prevent prevention, you just end up creating more bureaucracy.

As far as motorcycles and football, when someone gets hauled into the emergency room after a run in in those circumstances, it is generally clear why they are in the emergency room. Bring in three people with the same symptoms, it is not clear if you have the beginnings of an epidemic or just a restaurant you don't have the guts to shut down when you should.

Jonas: You're really saying there would be no financial motive to being the only restaurant in an area with an A? That it wouldn't help sales at all?

You're really saying you think a major corporation would invest money it didn't have to, when the business would function without it?

History says you're wrong, incidentally: businesses only clean up when legislation requires that all businesses do so, not in order to increase sales by being "the only one" to do so.

By this standard, any activity with the potential to cause serious hospitalization is "taking a toll on the rest of society."

Driving while drunk, for example. Do you feel that laws against drunk driving should go, replaced by drivers being required to breathalyze themselves and place letters on the front of their car indicating how drunk they are, and every time they kill someone while driving drunk paste a photo on the side of their car?

Sebastian: No, the kind of stuff in the post isn't

OK. (There's a famous example of serious disregard for public safety by McDonalds that was consistently trivialized in the media as the woman who sued McDonalds for serving her hot coffee, and so I did wonder.)

it pretty much defeats one of the main benefits of forming a corporation: limiting personal liability for the acts done in the name of the corporation.

I disagree. Individual employees retain liability, criminal and civil, for their own actions performed on the job. Specifically if your boss told you to go out and fire-bomb one of your competitor's stores, you'd be charged at arson and the prosecutor would laugh at your limited liability claims.

Limited liability would, however, protect a sharholder for paying if the company does not have enough money to pay the judgment.

Russell,

It emerged because it was needed, and it still is.

Your summary of the history of regulation is right on the money. I have no quarrel with the existence of regulation or government oversight. I merely object to the absolutism of it, and the fact that no meaningful boundary has been placed upon its scope.

Jesurgislac,

You're really saying you think a major corporation would invest money it didn't have to, when the business would function without it?

Yes, if the investment is likely to reap them even more money and give them an advantage over their competitors. Being the only A-graded restaurant in an area with only C's seems like a no-brainer to me.

businesses only clean up when legislation requires that all businesses do so, not in order to increase sales by being "the only one" to do so.

A business has never improved its products quality and safety to gain an advantage over its competitors? Why did anyone put airbags in cars before they were required to? Really, you and I are on different planets with this one. It may not happen in the manner you'd like or as often as you'd like, but it definitely happens.

Driving while drunk, for example.

You'll note that in this drunk driving example, there is a person being a potential victim of vast harm who did not knowingly consent to this risk. If I eat at a dirty pizzeria with an F grade or drive my motorcycle into a tree, there's no victim. Only a dumbass, and that would be me.

"You're really saying you think a major corporation would invest money it didn't have to, when the business would function without it?"

Whoa, have you ever got a weird notion of how businesses work! Competition is a Red Queen's race, you run as fast as you can just to keep even. the other guy is trying to steal your supper, and any business that took the attitude you attribute to them would be defunct in short order.

Restaurant rating is widely used in the LA area and it works well. Grades go A through D, I guess, but anything below a C gets shut down. There is, actually, a high demand for an A rating and it definitely costs business to be lower. It's pretty unusual for a restaurant to just live with a C, chain or otherwise. Yes, people are denied the choice of eating rat droppings in their food but that doesn't seem to bother many people.

It's true that there are occaisional problems about things like letting soup cool on the countertop overnight but in the final analysis it's not really a great loss to society that restaurant owners have to put cooked soup in the fridge. There is always the option for people to rewrite the codes to be a little laxer about certain technical temperature violations like that but the benefit is small enough that nobody bothers.

I don't particularly miss soup cooled on the counter overnight, (Though I do it that way myself; It's safe enough if you know what you're doing..) but I've never found a decent substitute for raw eggs in ice cream.

Russell,

I personally tend to liken the "we should loosen up regulations" to the same sort of thinking that says "I should stop taking my medicine when I feel better, even if the Doctor says I need to take it for the rest of my life".

It's worked. Things are better. We can stop taking our icky medicine now!

I don't really want to LIVE in the unregulated libertarian freetopia. I've seen what such unregulated enviroments look like, and I don't find the hand-waving "BUT THE MARKET WASN'T FREE ENOUGH THEN!" excuses to hold water.

I've been out in the real world more than long enough to realize a business will happily poison me if they think it'll make them a net profit. They're in the businesss of making money -- not making me healthy.

What forces them to eat the costs associated with making sure their products don't kill or sicken people is regulation and threat of lawsuits.

Which reminds me -- why are the people MOST in favor of "free market" solutions also generally in favor of capping civil suits, tort reform, and generalized business immunity to the law?

If I can't sue a company for gross negligance, and I'm not allowed to regulate them to prevent gross negligance, that merely leaves them killing or wounding enough people over time to gradually go out of business. Which of course just means they'll create a shell company, buy themselves out, rename themselves, make their product safer for about two years, and the whole process starts over.

In the meantime -- dead people. Lots and lots of dead people.

"Which reminds me -- why are the people MOST in favor of "free market" solutions also generally in favor of capping civil suits, tort reform, and generalized business immunity to the law?"

Probably because, after you've read the tenth essay by a tort lawyer defending the purpose of tort law as being a way to impose regulation on industry without the necessity of persuading a legislature, rather than doing justice in particular cases, you start to take them at their word.

Probably because, after you've read the tenth essay by a tort lawyer defending the purpose of tort law as being a way to impose regulation on industry without the necessity of persuading a legislature, rather than doing justice in particular cases, you start to take them at their word.

But in the absence of regulation or huge liability claims, why wouldn't any rational corporation seek to externalize as many of its costs on society as possible while retaining the savings for its owners?

Jonas -

First, many thanks for your gracious words upthread.

I do have one comment on this, regarding the A-F restaurant grading system:

This seems like a far more just and free system than the one in place currently.

In some ways, it does seem like just "reporting the facts" regarding restaurant hygiene (or building code violations, or workplace safety violations, etc etc) and letting folks make their own decisions might lead to a more free situation. Regulators would simply be recounting what they found, and folks would make their own decisions.

In practice, I think what would result would be a world in which the only folks who would patronize the dirty restaurant, who would live in sub-code housing, and who would work at dangerous workplaces, would be the folks who, in fact, had no real choice. Poor people, people with limited language or work skills, people who, for whatever reason, come into life at some kind of disadvantage.

As the old cliche goes, both the rich and poor have the freedom to live under the bridge. In fact, however, it's only the poor that you'll find there.

I get the idea that, for instance, universally banning trans-fats from all restaurants is, perhaps, pushing the role of the state from protector to nanny. In the case under consideration, however, I think hilzoy's point holds.

Thanks -

Setting aside your tacit assumption that businesses are run by sociopaths, (Not any more often than governments, certainly!) and thus are not at all constrained by the morality of the people running them, I suppose my answer would be that I'm not opposed to business being subject to tort law, reasonably applied. I don't consider treating them as sources of free money for juries to be charitable with, or imposing 100% liability where there is only fractional responsibility to be reasonable. And I sure as heck don't like the practice of using frivolous lawsuits to try to extort compliance with unenacted laws, by threatening to bankrupt a shallow pockets business with legal costs.

Take Dow Chemical and the whole silicone breast implant bit; The scientific basis of the tort case against Dow was utterly shredded partway thought the case, and since it happened after the court finished considering that part, they just went ahead with figuring damages for a harm Dow didn't cause.

That's outrageous, IMO.

Setting aside your tacit assumption that businesses are run by sociopaths, (Not any more often than governments, certainly!) and thus are not at all constrained by the morality of the people running them

No I don't think that. But the very purpose of a corporation demands this. It can lead, as with Enron, to a culture amongst the employees that encourages and rewards the ability to evade regulation, until it all ends.

If you do away with regulation, and/or tort law, you'll see thousands of Ponzi's and Enrons.

However, on a concilatory note I agree that tort law can wreak havok for a small business. But the world is, as you noted, not filled with sociopaths.

Corporations may not be run by sociopaths very often (though you do get people who celebrate their freedom from regulatory oversight by putting melamine in the food supply), but corporations as persons are at the very least encouraged to be sociopaths.

Take Dow Chemical and the whole silicone breast implant bit; The scientific basis of the tort case against Dow was utterly shredded partway thought the case, and since it happened after the court finished considering that part, they just went ahead with figuring damages for a harm Dow didn't cause.

I'd like to respond to this by picking up on a point hilzoy made upthread.

In the absence of clear and adequate regulation, issues of harm and liability end up being sorted out in the courts. And, as you note, using the court system as a way of determining responsibility is a bit of a crap shoot. In fact, it's an expensive, lengthy, inefficient crap shoot, and the parties involved are far from disinterested in the outcome.

As it turns out, quite often the simplest, most efficient solution to "frivolous litigation" is a regulatory scheme.

That, or pistols at dawn. :)

Thanks -

Well, it would be, if the regulations precluded the crap shoot... Absent tort reform, you just get both, as lawyers attempt to impose 'regulations' which were considered and rejected.

A good example of THAT would be the lawsuits against the firearms industry, which rather explicitly represented an effort to compel firearms manufacturers to comply with gun control laws which had been defeated at the legislative level, by threatening them with the uncompensated cost of defending against endless frivolous lawsuits.

The 'Lawful commerce' act was a good example of tort reform, too bad it only applies to one industry.

I'm late back to the thread, but Jonas Cord way upthread was right to call me on my surly responses to Brett Bellmore.

That I made it personal with reference to his kids, should they exist, was bad form.

I apologize, Brett.

I thank Jes for her kind words, but sometimes my humor becomes toxic and little more than a sharp elbow in the eye.

Maybe my comments require warning labels. Or perhaps my comments could be followed by a fast talker reciting a myriad of side effects and resulting risky conditions, as happens in pharmaceutical commercials.

I would add, however, that if you experience an erection that lasts longer than four hours, consult your physician and Larry Flynt, who may suggest a new, lucrative career.

Let me add, too, that you are very odd if my comments cause such a condition, and I would lump you in with Sebastian's examples of folks who try to game the system.

Speaking of which, I think the folks who find live mice in their chicken nuggets should be hired by the corporation they've just sued to ferret out future fraudsters, much as computer security firms hire former hackers.

Also, I object to Jonas' suggestion of a very large limestone building to house 32 million investigators, because limestone gives me a rash. May I suggest organic adobe substitute?

I checked some links and learned that the Consumer Product Safety Commission's budget has been flat at @ $62 million since 2005. I'm waiting for my computer to load OMB's full budget history and I hope to report back.

I know, too, that the recent Mattel/China lead-paint-on-the-toys controversy revealed that headcount has been sharply cut back at the Commission in recent years, and I just can't think why, can you? But I hope to track down those figures, too.

Anarch asked upthread: "I'm curious, has anyone here actually dropped a toaster into a bathtub?"

No, but the hacks put in place at the Consumer Product Safety Commission since 2001 threw a toaster into the bathtub in which the Commission was being gently bathed and held under for lengthy rinsing by Grover Norquist.

Finally, having dined in every ill-lit, cockroach infested bistro in Southeast Asia, India, and Nepal, let me say that the fascisticly-regulated food parks in Singapore were a wonderful and delicious respite for my colon, which at several points had become an Ayn Rand paradise for free market e.coli the size of rotweillers.

The downside, of course, was that the Objectivist e. coli were disincentivized from building a skyscraper in my large intestine. But, a guy has gotta have zoning standards.

Yes, I could have done without the Singapore cops dragging one poor guy into the shrubbery for not maintaining a spit-shine on his wok.


"As it turns out, quite often the simplest, most efficient solution to "frivolous litigation" is a regulatory scheme."

Usually not, because the regulatory scheme is used by a club by plaintiff's when easy to do so, but it doesn't bar suit (and often isn't even allowed in evidence) when it doesn't help the plaintiff's case unless the regulatory scheme specifically says so (which is to say almost never). So in actual practice more regulation tends to just mean you can get it from both ends.

No, but the hacks put in place at the Consumer Product Safety Commission since 2001 threw a toaster into the bathtub in which the Commission was being gently bathed and held under for lengthy rinsing by Grover Norquist.

Awesome.

The FDA is a perfect example of what we are talking about. It is one of the most strict drug-safety regimes in the world, yet passing through it does precisely nothing to stop frivolous suits like that which drove Bendectin off the market, or like those that bankrupted Dow Chemical over the false breast implant claims.

I don't buy a claim that more regulation as a general matter does much if anything to slow down litigation.

But in the absence of regulation or huge liability claims, why wouldn't any rational corporation seek to externalize as many of its costs on society as possible while retaining the savings for its owners?

"Free Market Magic Pixie Dust".

Seriously. The Free Market does everything, from curing warts to providing free lunches. It's a special kind of magic, and you just have to believe.

Well, the market does in fact cure warts. ;)

Jonas: There is no conceivable reason to restrict my choices absent laziness on the part of the paranoid.

Talking about coming from different planets... I seriously don't know how to begin to address this, except -- with completely unfair snark, and I apologize for it -- to note that some of us graduated kindergarten.

Or, in other words: you have absolutely got to be kidding that there's "no conceivable reason to restrict my choices absent laziness on the part of the paranoid". I mean, seriously: you have got to be kidding. You genuinely can't conceive of a reason? Yowza.

How can you cite this as an embrace of risk when you admit the only reason you ate it is because the government made it way safer?

Just because I didn't embrace the entirety of the potential risk -- fugu for all! -- doesn't mean that my risk was not increased by consuming those foods. Which is precisely the point I was making in my post: this is not a binary proposition. The adjustment of the continuum allows for increased opportunities -- which is sort of the point -- without undue risk.

Being the only A-graded restaurant in an area with only C's seems like a no-brainer to me.

Given the standard profit margins, and likelihood of failure, in the restaurant business, that's absolutely not the case. Trust me, if any of the bars or restaurants I've worked for could've legally cut any more corners, they'd've done it in a heartbeat. The race to the bottom cuts both ways; it's only by raising the minimum allowable standard that you'll have a minimum standard worth mentioning.

Do you maintain that everyone who ate any of these dishes before the modern regulatory state existed was irrational? Please.

Do you maintain that even a fraction of such restaurants, or a fraction of such mass market purveyors of food, existed before the modern regulatory state? Please.

[And see above re the necessary of assumption of risk, while I'm at it.]

Curt: There is, actually, a high demand for an A rating and it definitely costs business to be lower. It's pretty unusual for a restaurant to just live with a C, chain or otherwise.

Yes, but that's because of the prevailing culture of regulation. Trust me, if restaurants could get away with Cs, they would.

Brett: Setting aside your tacit assumption that businesses are run by sociopaths, (Not any more often than governments, certainly!)

Actually, in a Western democracy, that aside is almost categorically false. There are a number of characters in such governments, but sociopaths (outside of the present administration) are rarely one of them. The same is not true of, e.g., CEOs of major corporations -- Enron, anyone? etc. etc. -- or for that matter amongst the corporate executive or "high finance" culture.

like those that bankrupted Dow Chemical over the false breast implant claims.

Dow Chemical is currently the second largest chemical manufacturer in the world, second only to BASF.

Thanks -

Sebastian meant Dow Corning, not Dow Chemical.

"The race to the bottom cuts both ways; it's only by raising the minimum allowable standard that you'll have a minimum standard worth mentioning."

This is a completely false statement. There are restaurants with varying standards of care right this very second. Ones with varying reputations, and varying quality. They all exist now. Not everything is Taco Bell.

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