A Safe Harbor on the Dark Side of Democracy
by Pierre Lemieux
Manufacturers or dealers often try to be on the safe side by being more nanny than the Nanny State.
According to the Wall Street Journal of January 24, a California court will soon decide whether the likes of Starbucks have to put a health warning in their shops or perhaps on every coffee cup. The reason is that acrylamide, a chemical produced during the process of roasting coffee, is “known to the State of California to cause cancer or reproductive toxicity,” as the warning would say.
In a previous life, I wrote that after tobacco, coffee will meet the Nanny State’s wrath. I later thought that my prediction had been way off, and it probably was. But then, who knows? For tobacco, it also started with innocuous warnings.
Proposition 65 was a California initiative adopted in 1986 by a 63% to 37% margin. It was enacted as the Safe Drinking Water and Toxic Enforcement Act of 1986. Besides restricting toxic discharges, it mandates that:
No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.
The law excludes businesses with less than 10 employees, and interestingly also,
…any city, county, or district or any department or agency thereof or the state or any department or agency thereof or the federal government or any department or agency thereof; or any entity in its operation of a public water system as defined in Section 4010.1.
Not surprisingly, there has been some mission creep. Many of the initiative activists probably wanted it that way. More than 900 chemicals now figure on the 22-page list of “chemicals known to the State to cause cancer or reproductive toxicity” mandated by Proposition 65.
Proposition 65 warnings must be “clear and reasonable.” No specific text is mandated, but regulations provide “safe harbor” suggestions, which can help avoid liability when a business is sued. These safe-harbor warnings are interesting to see. But the one on cars sold in California is perhaps difficult to beat:
Operating, servicing and maintaining a passenger vehicle or off-highway motor vehicle can expose you to chemicals including engine exhaust, carbon monoxide, phthalates, and lead, which are known to the State of California to cause cancer and birth defects or other reproductive harm. To minimize exposure, avoid breathing exhaust, do not idle the engine except as necessary, service your vehicle in a well-ventilated area and wear gloves or wash your hands frequently when servicing your vehicle. For more information go to www.P65Warnings.ca.gov/passenger-vehicle.
Manufacturers or dealers often try to be on the safe side by being more nanny than the Nanny State. Sometimes they are forced to do so by court judgments or settlements. I have a picture of the following warning on a car window in the Golden State:
Motor vehicles contain chemicals known to the State of California to cause cancer and birth defects or other reproductive harm. These chemicals are contained in many vehicle components and replacement parts, vehicle fluids, and paints and materials used to maintain vehicles, including, but not limited to, fuel, oil, batteries, brakes, and wheel balancing weights. In addition, motor vehicles emit engine exhaust and fumes, and when serviced, cleaned or maintained generate used oil, waste fluids, fumes, grease, grime and particulates from component wear, which contain chemicals known to the State of California to cause cancer and birth defects or other reproductive harm. (Posted in accordance with Proposition 65 in Cal. Health & Safety Code §25289.5 et seq.) For further information about Proposition 65: www.oehha,.org/prop65.html.
One wonders how such dumb consumers can become enlightened voters.
Proposition 65 illustrates the dark side of democracy–direct democracy, in this case–even if one can find lots of darker examples. In 1986, California voters were called to vote on a complex piece of legislation that most of them had certainly not read, could not understand, and the consequences of which they could not even begin to analyze. The margin in favor of the proposition appears large, but only 55% of registered voters participated, which means that only a third of registered voters adopted the new law. And most of these voted blind or partisan.
These warnings raise many problems. They impose costs on businesses and, thus, on consumers. They accustom people to believe and depend on the state’s judgement, to behave like children; or else they blur warnings of real dangers under a flood of irrelevant ones, and people learn to ignore them all. They turn private properties into advertising spaces for the Nanny State, and thus push private things and places into the public domain. They lubricate slippery slopes to prohibition or near-prohibition, as the case of tobacco illustrates.
In their book Democracy for Realists, Christopher Achen (Princeton) and Larry Bartels (Vanderbilt) provide much evidence on the behavior of the “rationally ignorant”–if not simply ignorant–voters. My review of the book in Regulation mentions some examples:
Statistical analyses show that [voters] punish the incumbents (of whichever party) only for the economic conditions obtaining in the last six months preceding the election, whether or not the politicians in power could have done anything to change those conditions. They punish incumbents for droughts and floods. In 1916, voters even punished Woodrow Wilson and his Democrats for shark attacks in New Jersey.
Assuming that the state is indispensable or inescapable, there exist many arguments for democracy. The major one is that other systems are even more likely to drift into tyranny.
The main argument against democracy is that “the people”–whoever that is–more often than not approves, or even calls for, policies that strengthen state power. Gives us a leader who will force trains to run on time! A story in The Economist of January 25 (“In Europe, Right-Wing Parties Are Offering Bigger Handouts than Traditional Ones“) shows how right-wing populism in Europe is pushing for an extension of the welfare state. This danger is far from absent in America.
When government is limited, democracy is a good thing, as long as it does not help Leviathan break its chains. Under an unlimited state, the only benefit of democracy–“totalitarian democracy,” as Bertrand de Jouvenel called it–is to allow the majority to wake up one day, assuming a majority with the will and capability to challenge Leviathan still exists. A democracy where voters do not believe in liberty is of the dangerous kind. But here is a question: How to ensure (if it is possible) that people maintain a belief in individual liberty?