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And How Many Lawsuits Will It Launch?

Monday, January 4, 2010  |  posted by Hugh Hewitt

The Washington Post runs a big story this morning intended to alarm the reader about exposure to chemicals the nature of which is doubly secret –both in the amount of exposure and the make-up of the chemicals.

The story contains this very peculiar paragraph:

At a time of increasing public demand for more information about chemical exposure, pressure is building on lawmakers to make it more difficult for manufacturers to cloak their products in secrecy. Congress is set to rewrite chemical regulations this year for the first time in a generation.

First, the evidence for “increasing public demand” and “building pressure” is not cited. Perhaps it exists, and if so it is probably the result of special interest groups funded by plaintiffs’ lawyers. But shouldn’t the source for these assertions be cited?

Second, what does “Congress is set to rewrite” mean? That a single congressman or a subcommittee is taking the subject up?

And finally, what are the downsides of increased regulation of the sort the article advocates for? California has a lot of experience with rigorous disclosure law —its Proposition 65 has forced almost every building in the state to carry notices of the dangers within. Prop 65 has inspired an entire industry of inspectors, enforcers, and lawyers on both sides. One of my partners defends against suits alleging inadequate disclosure, and she is busy indeed.

The benefit of all this disclosure has never been obvious to me. I have never seen, for example, an individual read a Prop 65 notice and turn on his or her heel and leave the premises it marked.

Tort law ultimately protects the individual from harmful exposure, not disclosure regulations. America’s chemical companies know that if they produce an agent that harms, they will pay a steep, steep price, and so they don’t knowingly do so. Amping up their disclosure requirements will not only trigger another Prop 65 regime of waste and litigation, it will increase costs and decrease profitability as competitors at home and especially abroad rush forward to research and duplicate whatever effective new chemical advances are made, the specifics of which are obliged to be repealed under any new regime.

The article is a classic bit of one-sided agenda journalism that could have been written by an advocacy group hoping to push Congress along towards jobs-and-profits destroying law making. The article cites without naming the Consumer Products Safety Improvement Act (“CPSIA”), which has been an absolute disaster and which has cost thousands of jobs and hundreds of millions of dollars with very little if any benefit to the consumer.

Doesn’t the paper owe its readers a minimum of balance in its reporting, and especially crucial background such as the abject failure of CPSIA to do other than harm? No wonder newspapers have entered their death spiral.

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