John Singleton with Bob HowardRip Van Australia (Stanmore: Cassell Australia, 1977), pp. 52-56, under the heading “Consumer Protection”.

An elephant is a mouse built to government specifications.
ROBERT A. HEINLEIN

To protect men from their own folly is to people the world with fools.
HERBERT SPENCER

The area of consumer protection legislation is where knee-jerk reflexes predominate. Every time there is an accident, the cry will go up, “there ought to be a law”, “it shouldn’t be allowed”, or, “the government should stop it”.

So we have compulsory seat belt and crash helmet laws; strict laws on other safety devices for cars; laws regulating swimming pool safety (and in N.S.W. the prospect of licences for pools); strict food quality and inspection laws; stringent tests for new drugs; censorship of movies and literature; drug bans; building standards; advertising restrictions; licencing of just about every skilled occupation going; really heavy, incomprehensible, guilty-until-proven-innocent company legislation; etc., etc., etc., etc., and etc.

We have an army of bureaucrats to wield all these mickey mouse clubs, our courts cluttered up with “victimless crime” offences as a result, plus the ever-increasing taxation burden to pay for it all. Therefore, it is time perhaps to have a closer look at the rationale for all this funny legislation.

The basic idea behind it is that we are fools, and that we need protection — or, not us really, but “others”.

It’s always “others”, but unfortunately we are the “others” to someone else. People, it seems, have to be protected from themselves, and from those unscrupulous characters out there waiting to rip them off.

The problem with this fine theory is that the more you protect people from their errors, the more errors they are going to make, and the more they will expect you to protect them. Consumer protection legislation, then, encourages dependence, a lack of personal responsibility and judgement, and the growth of the Big Brother State.

We might also ask ourselves what the legal principle behind such legislation is. It is that people are to be assumed guilty until proven innocent — the legal premise of dictators, fascists and thugs. Licencing legislation, for example, forces people to prove that their product, equipment, or service, is not guilty of being substandard, before the licence is granted. Standards force builders, manufacturers, processors, and others, to prove that their products are not guilty of being substandard before they are approved. This is a complete perversion of the law. It violates our right to freedom — in particular, our rights to freedom of choice and free trade.

What, then, are the results of this legislation? One of the most accepted areas of such legislation is in the field of medicine. Very strict rules are prescribed for the testing of new drugs, especially since the thalidomide disaster. Professor Sam Peltzman of the University of Chicago completed, in 1974, a massive and so far unrefuted study of the results of consumer protection legislation administered by the Food and Drug Administration in the U.S.A. He found that the “toughening” of the laws following the thalidomide tragedy over fifteen years ago has had the following results:

  1. The number of new drugs brought to the market each year has been cut by half with no corresponding reduction in inefficacious drugs.
  2. The cost of drug development has doubled.
  3. Drug prices have increased because of reduced competition between drugs, so that the sick pay $50 million extra each year.
  4. Substantial net social costs have been incurred from deaths and illnesses that could have been prevented, if the development of new drugs had not been hampered by the new amendments to the laws.

Peltzman concluded that “consumer losses from purchases of ineffective drugs or hastily marketed unsafe drugs appear to have been trivial compared to the gains (formerly available) from innovation” (quoted in Roger Lea MacBride, A New Dawn for America, Green Hill Publishers, Ottawa, Illionois, pp. 47-48).

Another result of consumer protection legislation is that minimum standards frequently become de facto maximum standards as well. Building contractors, for example, can build their structures “to standard” and use that as a selling point, and thus escape to an extent, from true market demands.

The Paul Newman, Steve McQueen movie, Towering Inferno, provided a frightening example of one possibility in this regard. The movie featured a new building, taller and larger than anything that had ever been built before. The architect realised that “standard” electrical wiring would not be good enough for such a building, and so prescribed wire to his own specifications. The builder, however, to cut corners and make some money on the side, reverted back to the legal standards and installed the wiring in accordance with them. As a result, the wiring overloaded when the lights were turned on, and, in burning out, started the fire that was the subject of the most successful movie of 1975.

This illustrates another extremely common result of consumer protection legislation: corruption. It is widely known that bribing public officials is the easiest and often to only way to get building applications approved.

The only real plus for this legislation is that it allows politicians to strut and posture to prove their “concern” and “deep humanitarianism”. As with most government activity, however, it is an attempt to sweep problems under the carpet and take the quick, easy, short-cut solution — coercion. It never has worked, and isn’t about to start to now. It merely creates a “whole category of victimless crimes” (see, for example, Gun Control).

What alternatives do we have? How can we protect consumers against the rip-off merchants and dangerous products? First of all, there will always be a place for the old faithful, caveat emptor — let the consumer beware. The virtue of this is that it does teach people hard lessons and encourages independence and personal responsibility. But it is not good enough. Sometimes the lesson can be permanent and fatal. The next possibility is free market consumer protection agencies — the free market equivalent of the current (and inadequate) Choice magazine, for example. These could report on goods and services and provide special inspection and testing services for consumers, like the N.R.M.A. car inspection service. On a free market, a reputation for fair and honest reports would be such an agency’s greatest asset.

The most important source of money and incentive for the provision of private consumer protection organisations, however, is likely to be insurance companies. Their incentive lies in the fact that they have to pay the bills for accidents and deaths. In order to be competitive, to offer the largest range of cover at the lowest possible premiums, they would needs ways and means of reducing risks. So car insurance firms would insist on certain standards of car safety before they insured particular cars. Because no car manufacturer would want it known that its cars were uninsurable, they would obviously co-operate closely with the insurance companies. In this way, the market would set standards that were much more relevant, flexible and strictly enforced than the present government ones.

Insurance companies, for example, could not afford corruption, because all it would lead to would be high payouts for accidents, whereas a politician stands to lose nothing. Not even sleep.

The same arguments apply to all drugs, appliances, construction companies, doctors, dentists, food processors, and so on. The government should still have the responsibility for policing such things as theft, coercion and, in particular, fraud. But the government can only morally act after the fraud has occurred. If we want to protect ourselves against fraud, then we should take our own precautions. We cannot seek to protect ourselves by violating the rights of others — for example, by enforcing business legislation. This only compounds the error of government interference.

We don’t have a “right” to “adequate” standard products, or to “clean” food. We only have a right to expect what we contract to receive. If we do not take the trouble to explicitly contract for what we want, then the onus is on us to ensure that what we get is what we want. It is only when the product is deliberately misrepresented by the seller that a fraud is committed.

If a product is inadvertently defective, most reputable companies, in fairness and to protect their reputations, will willingly exchange it or make good damages — within reason. This is so even today. On an open, competitive market, good reputations would be even more valuable assets. They would also be harder to get, but easier to lose. This would be an additional factor ensuring consumer protection.

As a last resort, there is the power of the Press. This would be particularly so if we could get politics out of our lives and hence out of the papers.

Dissatisfied customers are well within their rights to organise economic boycotts and advertising campaigns against products, services, companies or individuals, provided they can substantiate their claims. But they should not fall into the trap of going on to demand government legislation to “protect” them.

This is not an exhaustive list of the possibilities that exist for providing a voluntary system of consumer protection. We do believe, however, that: (1) such a system must be found because the current system violates the rights of both consumers and suppliers of goods and services, and should be repealed; (2) the current system is largely counter-productive and/or ineffective anyway; and (3) a private system would provide a more effective, relevant and flexible system than the one we have now.