TheAgitator.com
Eat Here
Wednesday, April 28th, 2004While I’m clicking my toungue at friends, let me be the “purist” who calls Julian on his approval of state health departments inspecting restaurants. Julian’s explains that when you eat at a dining establishment, you have an implied contract of sorts, and part of that contract carries the expectation that your food won’t be tainted with rat droppings.
Well, maybe not. But how just how much cleanliness is expected in the contract? All regulatory agencies allow for some impurities — one finger allowed, for example, in every so many cans of soup. If a restuarant gets you sick, you can take private action against it. If it repeatedly makes people sick, its actions approach fraud, perhaps on a criminal scale.
Frankly, I’m willing to tolerate the occasional rat or mouse citing if it means I have more restaurants to choose from. Hell, I’ve caught two mice in my own apartment in the last three months, and I still eat food I prepare in my kitchen.
One of the most common responses I get from smoking ban proponents is that the state has the right to ensure that diners are provided with a healthy eating environment, and safe food. They then inevitably bring up the fact that these mysterious “property rights” I speak of don’t allow a restaurant to serve you tainted meat, spoiled milk, or rat meat they label as chicken, so why doesn’t the state have the right to be sure you’re not breathing arguably cancer-causing smoke while gnoshing on buffalo wings?
It’s not a bad argument. Once we say it’s okay for the state to come into a privately-owned restaurant and inspect the food, and check the cupboards for mice, we’ve surrendered a bit of the sanctity of property rights — of the absolute right of a business owner to conduct business with his customers in a manner he sees fit — and we open the door to forced compliance with fire and safety codes, building code compliance, ADA compliance, and yes, secondhand smoke restrictions.
Often, these regulations are fairly arbitrary. Almost always, they’re terribly expensive to comply with, sometimes prohibitively so (see the NY Times piece from awhile back on New York City’s burgeoning underground restuarant scene). They’re also subject to the same abuses of power that accompany any bureaucracy, such as example-setting, arbitrary enforcement, and regulatory capture. Check this book or this report to read case studies of bureaucrats manipulating seemingly innocuous health and safety regulations to shut down businesses they have it out for.
If we didn’t have city and state bulding, fire, food safety, and various other inspection agencies, it’s a near-certainty that private inspection services would spring up to fill the void. Diners could then look for the seal of approval from their preferred private inspection agency in the same way we now use Zagat.
In fact, I’d submit that such a system would make restaurants cleaner and safer than the current system. If I’m running a private inspection agency, and the restaurant I give a gold star to serves up a batch of bad meat two weeks later, my reputation as a trustworthy seal of approval takes a hit. I’m going to make certain then, that any spot displaying my seal damn-well earns it. Since government inspectors tend to be the only game in town, there’s little of the same competitive incentive to be sure the restaurants they approve really pass muster.
I’d imagine you’d get a range of these kinds of private inspection agencies under such a system, and each agency might have a range of grades. More adventurous or cost-conscious diners might try spots with lower health ratings, or approved by less prestigous agencies — either out of desire to spend less money on a meal, or in an attempt to discover new restaurants not yet established enough to comply with costlier “gold-star” inspections.
Correct on all counts. I used to work at summer camps, and the gold standard there was accreditation by the American Camping Association. There was no need for a government agency to come around inspecting facilities, because a private, motivated organization sprang up to take care of that.
Precisely the same would happen in the restaurant industry if the government got out of it. Health inspectors have very little effect on a restaurant’s cleanliness anyway; the prime motivator for a restaurant to keep itself clean is that it wants to satisfy its customers, who have eyes, ears, and noses, and can read newspapers.
So, to reiterate your point, you’re saying basically that competition between restaurants in the absence of govt’al regulations would prove to make for even cleaner restaurants than the current system of ‘doing just enough to get by’ and that the consumer him or herself would be the ones to dictate the market? What an original idea! Oh wait… nevermind. Good write-up Radley.
MattG and I agree again! YEA!
On everything but the war, Ms. Dani…
One other thing. Radley writes:
“One of the most common responses I get from smoking ban proponents is that the state has the right to ensure that diners are provided with a healthy eating environment, and safe food.”
Whenever I’m having a debate with one of my lefty pals — who are usually more shocked by libertarianism than anything else, because nothing in their education has taught them to question the efficacy of government –one of these constructions always comes up: “The state has the right to…” or “The government has a duty to…”
My response to these is often: Is the government *able* to do what you’re asking of it? If it’s not, then it can’t have a responsibility to do it; you can’t have a duty to do the impossible.
Government simply doesn’t have the resources to patrol every restaurant in the country in any meaningful way. Inspections are announced in the restaurant business anyway, so employees spruce the place up for the big day, get the yearly certificate renewed, and thank the gubmint for stopping by. But does this improve the cleanliness of the restaurant? No. Again, the main reason the restaurants you eat in are clean is that the proprietor wants you to enjoy your experience, and if a restaurant is dirty, people won’t come back. Government — as too often — does little but meddle and claim credit.
I have a friend who was running a shelter for the homeless here in DC. Their kitchen was shut down by the board of health for not having a three compartment sink.
Now they don’t serve food to the homeless.
Good thing the DC government is looking out for food safety!
A clarification and a distinction.
(1) I don’t know if I’d say approval so much as “non-condemnation.” Very likely some kind of private-cert arrangement would work as well or better than the status quo. 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. Presumably you’d agree that someone who got sick eating at a restaurant with a dirty kitchen could sue the place for negligent food preaparation or some such thing. If not a bureaucrat, then judges and juries are at some point in the position of deciding what level of sanitation meets a due diligence standard. (Assuming a negligence rather than strict-liability standard for cases like this; I don’t know what current law is.)
(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.
Right PJ. It’s a classic case of government bureaucrats making choices for people, when the government bureaucrats don’t have to live with the outcome of their decisions, but other people do. A homeless person has a choice between eating food from the shelter or not eating it; since he has to live with the consequences, good or bad, or that decision, it should be his to make.
In a similar vein, I have two friends who just got back from Cambodia and are now outraged that our government (prodded by do-gooders) thwarts U.S. companies from bringing so-called “sweatshop labor” there. Lots of young women (and men) in Cambodia would *love* to work a 14-hour day sewing shirts together for $1 an hour instead of sucking the cocks of 60-year-old Australian men to eke out a living. That young Cambodian should make the decision which job they do for which wage, not some D.C. bureaucrat — who doesn’t have to suck the cocks his “anti-sweatshop labor” decision shoves in the faces of young Cambodians.
Julian,
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?
Julian:
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”.
Matt-
I agree. I’m just distinguishing between things its per se illigitmate for things to do, and things where the “public or private” question is largely about efficiency. Some things the state shouldn’t do at all as a matter of principle, some things (national defense, say) can really only be done by the state, and there’s a third category of things that are within the range of things a state could be responsible for (as part of a just law enforcement function), but are likely to be handled as well or better by markets. All I was saying is that IF a sick customer could sue a restaurant with a rat-infested kitchen for negligence, then it’s not “none of the state’s business” in precisely the way that, say, private sexual acts would be, even if ideally we could have the same function served by private certifiers.
All I was saying is that IF a sick customer could sue a restaurant with a rat-infested kitchen for negligence, then it’s not “none of the state’s business” in precisely the way that, say, private sexual acts would be, even if ideally we could have the same function served by private certifiers.
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.
Must agree with Evan here over Julian. The fact that a customer can sue a restaurant if he gets sick does not mean that restaurant illness prevention is “the government’s business” and that government should therefore step in and proactively prevent such illnesses. Indeed if you adopted that standard there would be virtually nothing in society that wouldn’t be the government’s business, since almost any conceiveable business transaction could lead to a lawsuit. Should the government be inspecting roller coaster rides? Tennis court surfaces? Laundromats? Why just restaurants, Julian?
The oldest known inspection program I am aware of is the kosher “seal of approval”. Ever try bribing a rabbi? It’s kinda tough. Ever try bribing a city worker? It’s pitifully easy. And while they probably make the same amount of money, many people will say that the solution is to pay the city employee more to make him less vulnerable to bribery.
Julian Sanchez replies to Radley’s post here:
http://www.juliansanchez.com/2004_04_01_notesarch.html#108318622870999610
Rodents!
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…
I’ll need to re-read the thread in detail tonight, but offhand I agree with Julian up to the point that the government authority would have the power to ENFORCE their standards. I don’t have any problem with the government doing evaluations. A type of enforcement could be had by mandating that each facilty displays it’s government standards evaluation. If progressive government meant a government focused on providing information to individuals, rather than enforcing a community standard, I’d be a somewhat more willing taxpayer.
On balance I agree with Radleyâs post. I do not think that proactive government interference is warranted: as long as the damaged party has the right to sue, then I see no reason for govât inspections in general (in a specific sense: for example in rodent elimination I can see space for govât rules to reduce the risk of restaurants feeding rats through proper waste disposal et al.)
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 âseal 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 Radleyâs post: collusion between the ârating 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 firmâs 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.
And here is where we might be able to avoid the one real complaint I have with Radleyâs post: collusion between the ârating 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 firmâs 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.
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.
Well, the collusion problem is perfectly symmetrical. A dishonest restauranteur can pay off a government inspector as easily he could a private counterpart.
The oldest known inspection program I am aware of is the kosher “seal of approval”. Ever try bribing a rabbi?
Yes.
- Josh
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Great post, Radley, but totally unnecessary. The folly of any argument that starts with, “let’s assume the government can do something capably, efficiently and objectively” speaks for itself.
A mouse has a right to live, doesn’t he? I mean, without us mice around, do you realize how much cheese would go to waste, how many cats and owls and snakes and other animals might starve to death. It is not easy being way down on the food chain, you know? Give us a break. Leave a bit of cheese out from time to time. We thank you for your support.
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