Among the justifications given for state intervention in the economy is ensuring the safety of consumer goods – everything from cars to food to drugs. The US Department of Agriculture (USDA) is an organization whose tasks include, among other things,…

The Agitator, Radley Balko, says that he’s had problems with mice but that hasn’t stopped him from eating. Frankly, I’m willing to tolerate the occasional rat or mouse citing if it means I have more restaurants to choose from. Hell,

James Joyner sides with Julian Sanchez against Radley Balko on the merits of government inspections of restaurants. I’m pretty sure some libertarian—I want to say it was Charles Murray, in What It Means to Be a Libertarian—made an arg…

Julian Sanchez found himself “mildly grossed out” to learn that several D.C. area restaurants he’d frequented had been shut down for various health violations, many…

Yes.

- Josh

One only need look at my example, Consumer Reports. In an attempt to remain as unbiased as possible, they accept no compensation for their services other than subscriptions and donations. They do not accept payments from companies, or sample products. They buy things as you and I would buy them, to closely judge the entire consumer experience. They do not run ads in their magazine (except their own). They do not allow the makers of the products they rate to use their ratings in advertisements, etc.

And it is because of this that I trust them more than I trust, say, Consumer’s Digest, who is not so independent.

In such a libertarian world where eating at an establishment was a contract between the eater and the proprietor I would assume that the patron would insist that proof of appropriate insurance be displayed (or at least available) and that there would be some additional â??seal of approvalâ? from a private firm that would benefit both the insurer as well as the patron.

And here is where we might be able to avoid the one real complaint I have with Radleyâ??s post: collusion between the â??rating agencyâ? (private inspector) and the establishment. The assumption that the loss of reputation is enough to deter a rating agency from colluding with an establishment to hide violations is a bit naïve. Consider Enron and Andersen. Yes that ended that firmâ??s business, but it was a calculated risk. Elsewhere it happens all the time and it a hazard when the business being inspected pays for the inspection itself.

Better would be a private system where the insurance company that covered the restaurant paid for the services of the rating agency.

Via Julian Sanchez comes the DC Department of Health’s list of restaurant closures. Apparently, several establishments at which I’ve been known to dine have occassional rat troubles. Julian goes and says something un-libertarian about this, then Radley…

http://www.juliansanchez.com/2004_04_01_notesarch.html#108318622870999610

So, basically, Julian, you’re saying that the logical equation goes like this: “anything that might result in a lawsuit is something that should be proactively prevented by the government”.

Again, this goes back to proactive prevention vs. prevention via reactive punishment as deterrent. The latter, I feel, is the best way for us to preserve our liberties, while still allowing for the State to be the arbitrator in cases of rights infringement.

But to say that the potential for lawsuits gives the government the right to go all Minority Report on us, is irresponsible…and it gets us started down a mighty slippery slope.

Furthermore, the idea of private sexual acts is a completely different issue. That is a matter of government-enforced morality infringing on the rights of two consenting adults. Nobody’s rights are being defrauded when two people have consensual anal sex. But if I am HARMED by a restaurant owner’s negligence, then my rights ARE being infringed upon, and it is reasonable for the government to step in an protect my rights. It is not reasonable, however, for the government to prevent my rights from being infringed upon in the first place, in any other way than reactive punishment as deterrent.

You said, “But to the extent that fraud prevention is a legit government function, and people reasonably take restaurants to be feeding them non-rat-infested food, this is at least rationally related to something it’s OK for government to have a hand in.”

First of all, when you say that “fraud prevention” is a “legit” gov’t function, you open a whole new can of worms, one that I have discussed at length with my colleagues when Montgomery County, MD first enacted its smoking ban. This can of worms has to do with “prevention” vs “reaction”. Is it a truly a legitimate function of the government to enact laws that pro-actively “prevent” fraud? Or is it more likely that the function of government is to punish perpetrators of fraud, and thus, act as a deterrent? I would argue the latter. Your vision of pro-active prevention is what has led us to all of our social-engineering-via-the-police-state endeavours, many of which are miserable failures. It is simply my contention (and the contention of most libertarians, I would suppose), that the government needn’t proactively take away our liberties in order to prevent a crime before the fact. Instead, it is the job of the government to step in and protect its citizens at the point at which one encroaches upon another’s rights.

We have all seen Minority Report, or at least read a good deal of Phil Dick (he musta been a libertarian…). Do we really want the government in the business of proactive rights encroachment “prevention”? Aside from ‘punishment as deterrent’, I don’t believe we do. As “Minority Report” pointed out, we run into big problems when that happens (even if the short story/movie DID take it to extremes, which Dick is famous for).

So, this brings us back to the fundamental principles of the enforcement of our rights. Where does it say that we have a “right” to eat perfectly safe food? I can’t find that anywhere. A supposed “implied contract” is not enough, nor is the old “reasonable expectation” idea.

By claiming that the government has the right to protect against “fraud”, you also bring to light the idea that the government should be absolutely defining what the expectations of food safety are. Who does this? Why? I would rather rely on the courts (and the threat of litigation and fraud conviction) to decide what rights I have, and how those rights should be protected.

Let me propose this simple example: automobiles. Let’s compare the death rate from automobile accidents to the death rate from secondhand smoke. Something tells me the former is just a tad higher than the latter. But we don’t get behind the wheel with the “reasonable expectation” that an automobile be 100% safe, do we? I mean, there’s no government regulation that says that, to sell a car, it needs to be able to protect one’s life in all instances. yes, we have government-run crash testing institutes, and they are “graded”. But unless something is inherently and deathly wrong (like the wheels fall off once you hit 65mph), then the actual “safety” of the car is left up to private testing institutes, like Consumer Reports. Personally, I subscribe, because I believe it to be one of the best, most unbiased, free-market tools we have. And late last year, I was in the market for a car. Did I rely on the government to make sure it was 100% safe? No. I consulted Consumer Reports. The safest small SUV, according to them (and subsequent gov’t crash tests) was the Subaru Forester. Not to mention its high CR scores in every other category. So, I bought it. Do I have the “reasonable expectation” that I’ll not be injured or killed in an accident in the car? No, but I do feel safer than I would in, say, a Ford Festiva or Suzuki Sidekick.

Similarly, if CR rated McD’s as “poor” in health & cleanliness tests, I would probably not go there. But if they rated them “excellent” or even “good”, I would. I have a reasonable expectation not to be poisoned by their food, but…of course, few restaurants (who want to stay in business) are going to let that happen, gov’t regs or not. Furthermore, in addition to the reputation my poisoning would give the restaurant, I could also have legal recourse.

It just seems funny to me that people are so concerned with getting rid of secondhand smoke, which is not exactly in the top ten list of killers, but few people are arguing that we should have a government agency that makes sure every car that is produced will protect its driver from most or all harm. I mean, first smoking bans…that seems like a subsequent logical step in government’s march to “prevent fraud”.

If a restaurant made a habit of serving “rat-infested-food,” there are many non-governmental ways that business would shortly cease to operate. A private accreditation organization could disaccredit it; a free press could expose it; word of mouth would doom it.

And if it did not — if customers knew its cleanliness standards were subpar, but chose to eat there anyway — then what right do you or I or government have to stand in between two willing, fully-informed parties who wish to make a business transaction?

(2) The obvious distinction from smoking regs is informed consent–that’s why I assimilated this to fraud prevention. Nobody is tricked into drinking in a smoky bar: it’s obvious that the bar is smoky. It’s not obvious that the cooking staff at the restaurant is adhereing to some reasonable standard of sanitation.