California’s Nanny-Staters and the Retailing Cohort

By July 18, 2008Briefly Legal

Dan Walters of the Sacramento Bee has a smart report on legislators who are busy looking through your cupboards for products that offend them. The two, in particular, are Assemblyman Mark Leno and Sen. Carole Migden, sponsoring bills against fire retardant chemicals and bisphenol-A (BPA), respectively.

The bills, Leno’s AB 706 and Migden’s SB 1713, are emblematic of the Legislature’s penchant for regulatory decrees on consumer products – based on what? Conclusive scientific evidence of looming harm, pressure from folks who dislike something for some reason, or merely a headline-grabbing crusade?

Some call them “nanny bills.” Whatever the name, they are proliferating, as Monday’s passage of a measure to ban “trans fats” from restaurant foods (but not, oddly enough, from foods prepared at home) attests. An Assembly committee analysis of Leno’s measure put the syndrome this way:

“Increasingly, the Legislature is faced with measures dealing with the management of individual chemicals and/or products of concern to public health and safety and the environment . . . This seems to be leading policy-makers away from a systematic analysis of threats to public health and safety and the environment.

That’s an unusually good legislative analysis. Wonder what the analyst had to say about the trans-fats ban.

Coincidently, one of the proposed litigation groups that met at the just-completed American Association for Justice conference — the national trial lawyers group — targets bisphenol-A. Coincidently.

BPA appears prominently in another, semi-related story by Mark Gunther at Fortune, a piece we recommend, “Wal-Mart: the new FDA.” With activists, the threats of lawsuits and politicians spooking the giant retailers, decisions about product safety are now being made outside the regulatory world, with little regard to, well, product safety.

The giant retailer, along with CVS (CVS, Fortune 500) and Toys ‘R Us, announced recently that it plans to stop selling baby bottles containing the chemical bisphenol-A.

The question is, why? Bisphenol-A has been widely used since the 1950s. The Food and Drug Administration, as well as Japanese and European regulators, have no problems with it. Canada is about to ban it from baby bottles, but officials term the move purely precautionary.

To be sure, other scientists worry because animal studies have linked small doses of BPA to cancer and other health problems. But scientific debate isn’t driving the baby bottle war; a hard-hitting push by activist groups, politicians and trial lawyers is.

So, there are alternative products, right?

If opponents drive BPA out of the food supply, consumers will pay. Some BPA-free plastic bottles sell for $10 each, more than twice the price of bottles with BPA. Baby bottles made of glass can break, potentially causing injury. Replacing BPA in the lining of cans would mean retooling all that packaging, and it’s not clear that there are safe alternatives.

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