Modern liability state means less freedom for us all

Peter Roff A former UPI political writer and U.S. News and World Report columnist, Peter Roff is a Trans-Atlantic Leadership Network media fellow. Contact him at RoffColumns AT mail.com and follow him on Twitter @TheRoffDraft.
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One of Shakespeare’s plays includes a line about killing all the lawyers. Given the damage they do to the American economy by their abuse of our out-of-control tort system one can hardly blame anyone who adopts, in the figurative sense only, the wisdom of the sentiment.

The lawyers, along with the academy and federal and local regulators to name but a few of the major players, now orbit in a sort of informal partnership where each helps justify and support the others’ continued existence through a sort of devil’s bargain, the cost of which is ultimately borne by the ordinary citizen.

It kind of works this way. Lawyers fund an academic study which purports to prove a scientific theory. That study, through prominent media exposure, is used by pressure groups to influence regulators and politicians to take action. The ensuing political and regulatory actions often form the basis for product liability suits, the proceeds from which are used to fund new studies.

The sad fact is that product liability issues continue to be big business in America, making a few people extremely wealthy at the expense of everyone else. Using laws that are intended to protect the public the trial bar has created opportunities to fleece them – all the while pretending to act in their interest. Its one of the untold stories of the modern regulatory state, one that deserves far more attention than it is getting.

One example very much on the front burner concerns BPA – the trade name for Bisphenol A, which is a kind of plastic that, in one use, is laminated onto eyeglasses to keep them from shattering.  It is also used in the manufacture of medical devices, to soften baby bottles (which makes them less likely to break or shatter when being held by a baby), sports helmets, the lenses for automobile headlights, laptop cases and to create an epoxy that is used in the interior of metal cans to prevent corrosion and contamination from food-borne illnesses.

It has been in use since the 1950s, with roughly three million metric tons produced here in the United States each year. It’s big business, and it’s under attack from folks who have taken to claiming its unsafe – despite considerable evidence to the contrary.

Those who have looked at the issue closely can point to dozens of studies utilizing all sorts of data that proves the effects of BPA are not adverse to those who come in contact with it as part of the aforementioned products. Nevertheless the mere suggestion it might not be safe is enough for those kinds of people and groups who make up the devil’s bargain to call for it to be banned.

In part the proponents of a BPA ban are not approaching the subject by looking at the costs it might impose on society as measured against the benefits it brings to society. How many lives are saved because it protects people from food-borne illnesses, for example, is not measured against how many people it might make sick – if they ate 1,300 pounds food that had come in contact with BPA each and every day over the course of a lifetime, which is what they would have to do to exceed the levels the government currently considers safe.

The prohibitionist lobby is seeking to have it removed from the marketplace. Lawsuits have been filed. The media has been mobilized. Government agencies have been brought into the picture. And no one has yet proven it is unsafe.

Even a turn down is insufficient in deterring them. When California’s Development and Reproductive Toxicant Identification Committee, also known as DARTIC, issued a finding that it was safe, the prohibitionists – who have made a considerable investment in being proven right – simply asked another state agency, in this case the Office of Environmental Health Hazard Assessment, to take a crack at it.

At the federal level, pressure is being brought on the Food and Drug Administration to make state concerns unnecessary by banning the use of BPA once and for all, again despite considerable evidence that it remains safe as it is currently used. The whole business is a vicious cycle, one that may actually make the marketplace less safe under the guise of making it more so. At the same time is threatens jobs and ties up productive resources that could be used to improve products already for sale and to invent new ones by forcing producers to fight legal and regulatory battles merely to survive.

There was a time when consumerism used science to the genuine benefit of consumers. Now it is more often used as a tool of the regulatory state to deprive people of the benefits of modern society, giving a whole new meaning to the phrase Caveat Emptor – “Let the buyer beware.”

Peter Roff is a senior fellow at the Institute for Liberty, an organization that aggressively defends the rights of individuals to pursue the American dream.