‘Market Forces’ Can’t & Won’t Protect Public Interest

Among common arguments against almost any form of business regulation is that government shouldn't intrude in areas where “market forces” will more efficiently accomplish the same regulation.

Among the cases that most obviously contradicts this laissez-faire belief in the self-regulating market is the shameful record of Big Tobacco. For generations, covering hundreds of thousands of smoking-related deaths and billions of dollars in smoking-caused medical expenses, tobacco companies systematically opposed any effort to publicize the dangers of cigarettes. This opposition came despite reams of research by the companies themselves — all of it suppressed — proving that smoking causes cancer, heart disease, emphysema, and dozens of other insults to the human body.

However, lately, the anti-regulation crowd tends to point proudly to the cellphone industry's campaign, led by {complink 502|AT&T Inc.} CEO Randall Stephenson, to get people to break their insane habit of texting while driving. Here certainly, is the model of an industry that has spotted a problem and is acting decisively against it.

In fact, the case of texting — or any phone-based “distracted driving” — is a good example of why government works better and faster than the market to protect consumers from unseen peril in the new products that they love to death. Over the last three years, the Wireless Association (CTIA), has demonstrated good citizenship by fulminating against texting-while-driving. Mobile operators are lending support to most laws that would impose criminal penalties on automotive texters.

However, a little historical research reveals a record that's not quite so sterling and straightforward. Before mobile operators began speaking out against driver's-seat texting, they professed a more nuanced view. While agreeing that people who text while driving are imbeciles, they drew the line, sharply, at any federal action to shut down the imbeciles. Mirroring the states'-rights ideology of the American right, the CTIA opposed a uniform federal law. Instead, it favored individual state bans.

Remarkably, even texting-while-driving has powerful political defenders. Foremost among these is Texas governor Rick Perry. He has maintained that the right to ignore the road while tapping out a love-note to your sweetie, even if it causes you to veer onto the shoulder and kill a man changing a flat tire, is a matter of personal freedom enshrined in the Constitution. Perry vetoed Texas' anti-texting law, calling it a “government effort to micromanage the behavior of adults.”

The mobile industry chooses to humor extremists like Perry, which leaves 11 states where homicidal idiots can still text and drive. More importantly, it leaves a hodgepodge of laws that confuse the issue rather than making clear — like a cigarette pack bearing the message: “SMOKING KILLS” — that texting at the wheel also kills.

Does it? Most research indicates that distracted driving causes at least a half-million injuries and some 5,000 traffic deaths every year. Most researchers regard texting at the wheel as far more reckless than driving with a blood-alcohol level above 0.10 percent. Texting creates a crash risk 23 times worse than driving while not distracted.

Before CTIA members like AT&T and Sprint took their currently responsible position favoring (state) anti-texting laws, they preferred to hawk “driver education” as a nice, non-controversial, under-the-radar solution. Don't let the government come between you and your mobile-phone operator. Leave it to us, the corporations, to tell drivers, hey, don't text at the wheel. And everybody'll stop being naughty, just like that.

Except, the idiots haven't stopped. At least 40 percent of all drivers continue to use their phones while driving, especially in those 11 states where distracted driving remains as sacrosanct as the Alamo and the Second Amendment. This typical failure at self-regulation was foreseen, in the 1960s, by Martin Cooper, who developed one of the first “car phones.” As soon as he had invented the damn thing, Cooper had the wisdom to realize what a menace he had wrought. “There should be a lock on the dial,” he said, “so that you couldn't dial while driving.”

Cooper's industry has made praiseworthy progress on distracted driving. But it's still reluctant to put a lock on the dial. And it's still quibbling over how big, and how strong, and how widespread, the lock should be. So, even though the solution is as simple as a seatbelt, distracted driving remains a daunting, deadly problem. The reason for this stalemate — and the reason why capitalism and self-regulation are chronically incompatible — is that the public interest has never been, nor will it ever be, a “market force.”

18 comments on “‘Market Forces’ Can’t & Won’t Protect Public Interest

  1. wskehr
    September 25, 2012

    If self regulation or state laws actually worked, the proof would be that the problems would not exist.  If it's rivers catching fire 50 years ago or people killing others because they are texting today, there has been more than enough time for industry self-regulation to fix the problem before the federal regulators took up the task.

  2. wagnert in atlanta
    September 25, 2012

    Your notion of market failure is a strange one.    To quote you, “Among the cases that most obviously contradicts this laissez-faire belief in the self-regulating market is the shameful record of Big Tobacco. For generations, covering hundreds of thousands of smoking-related deaths and billions of dollars in smoking-caused medical expenses, tobacco companies systematically opposed any effort to publicize the dangers of cigarettes.”  They may have opposed it — but they couldn't stop it.  Ever since the Fifties, there has been a constant drumfire of studies, press releases, lectures and articles detailing in gruesome detail the dangers of cigarettes.  Even those who couldn't read could see the television public service announcements.  At the same time, the tobacco companies were forbidden to advertise, first on television and then in print.  The evils of tobacco were universally known — and, to the chagrin of the nanny state, people continued to smoke.  Finally, the assault of the attorneys general of liberal states resulted in a court ruling that not only forbid the tobacco companies to advertise in any way, but they had to finance state anti-smoking campaigns out of their profits.  Do you remember what happened then?  The anti-smoking campaigns came to an end, because if the number of smokers dropped, the tobacco companies could no longer pay the states the fines .Talk about a failure of regulation!  And people still smoke, now with the tacit endorsement of the states.

    Your demonization of the cellphone industry is even less justifiable.  I don't ever recall any cellphone company ad advocating phoning or texting while driving.  It is such a self-evidently stupid thing to do that it hardly needed saying.  You don't decry the fact that Chevy doesn't run public service announcements saying, “Don't get into your Chevy and drive into a tree at 75 miles an hour.” 

    You advocate a federal law.  Guess what.  The Feds can't pass motor vehicle laws.  That's the province of the states.  The most the Feds can do is make some form of Federal aid conditional on the states passing some desired law.  Why on earth should cellphone companies embrace that?  Again, you aren't decrying Chevy for not sponsoring speeding or drunk-driving laws.

    You say, “The mobile industry chooses to humor extremists like Perry, which leaves 11 states where homicidal idiots can still text and drive.”

    I have very bad news for you.  Homicidal idiots can still text and drive in all 50 states.  They can still veer off the road and kill a man changing a flat tire.  And in all fifty states they will be charged with vehicular homicide.  That's already the law.  In thirty-nine states they can also be charged with texting while driving.  I'll bet the sentence for the two offenses together is the same as the one for homicide alone.  It's also very likely that the only time the texting-while-driving charge will be brought will be after an accident — that the number of times someone will be charged only with texting is vanishingly small.  State and local cops have better fish to fry than running down people who are violating these nuisance laws.  Texting and wandering all over the road, yes.  Texting alone, no.

    Your interpretation of the “public interest” is also strange, because it ignores what the public is interested in.  Smokers fully informed of the dangers of smoking continued to smoke.  Only when the nanny-staters managed to kite the price of cigarettes through the roof did the number of smokers start to go down.  If your idiot solution — “a lock on the dial” — goes through, texting or talking while driving will go down.  But (depending on the nature of the “lock”) so will texting or talking while a passenger in a car.  Or a taxi, or a bus, or a train.  I know this won't bother you, because there is such an important point at stake.  But it's sure as hell going to annoy a lot of commuters. 

  3. stochastic excursion
    September 26, 2012

    wagnert makes the important point that government has sources of income and expenditures that can skew its perception of the public interest.  The fact is that no human institution can make the call as to what's good for all citizens, with 100% accuracy. So why dwell on the weakness of the market in this regard, when the purpose of the vast majority of businesses is too narrow to be categorically pro- or anti- public interest anyway?

    The only reason I can think of is the categorical distrust, in some political circles, of legislative programs which seek to address problems in society.  wagnert seems to acknowledge that it's desirable to have legislation which increases penalties, in cases of vehicular homicide where frivolous devices are used.  Maybe this is an example of government intervention, falling short of nanny-state excesses, that actually benefit society.

  4. SP
    September 26, 2012

    I guess when it comes to public reforms, its the individual's thinking and choices that makes a difference. No law, unless there is a major penalty associated with it can make a difference. If a person on his own understands the bad things cigarettes can do to his/hers body and is willing to let that addication go away can make things work out. Friends and family can definitely make a big difference. But law, no way. Here we see in movies whenever a filmstar smokes on screen, there is text dsiplayed at the bottom that Cigratte smoking is injurious to health. But hardly anyone reads that statement only for a moment they might feel that the movie viewing is disturbed. And tobacco industry is very very huge, they would twist the laws so well that nothing can come on their way.

  5. prabhakar_deosthali
    September 26, 2012

    The problem with the governments all over tghe world is that they just pass laws which are sometimes difficult to enforce.

    The other problem is that no government wants to remove the root cause of the problem. For example if a government is really keen on banning cigarettes and protect their people from the ill effects of smoking why in first place they allow the cigarette manufacturing? They should jsut ban those factories>. But sice they gets  a sizable amount of tax revenues from them they are just happy putting the warning signs of the cigarette packets.

    Same is true for texting while driving. If a government is really keen on removing the dangers of this bad habit, it should enforce the auto manufacturers to put an automatic jamming of all cell phone communications when the vehicle is in motion. instead of just passing laws which are difficult enforce on the roads.

  6. David Benjamin
    September 26, 2012

    Your hysteria over my mild comments on self-regulation suggest that you have a deep, almost religious faith in corporate benevolence. God help you. I was no, by the way, demonizing the cell-phone industry. I'm quite pleased that they have taken a strong stand against texting at the wheel. It sets them apart from the criminal behavior of Big Tobacco. My point is only that allowing industries to self-regulate when their products prove dangerous is the slowest way to solve the problem. I agree that laws are no guarantee of changing human behavior. Idiots will still be idiots. But seat belt laws and smoking bans — for example — have saved lives, reduced medical expenses and improved the quality of life, at little cost to the “freedom” cherished by libertarian hysterics. Police will cach few scofflaws. But if there is a law, law-abiding people like you and I will make a good-faith effort to obey it, sugnificantly reducing the overall danger. As for my solution, putting a lock on the dial, this wasn't my idea. It came from Martin Cooper, a pioneer of mobile telephony. Also, I think he meant it as a metaphor, which is a figure of speech that literal-thinking people have difficulty grasping.

  7. Himanshugupta
    September 26, 2012

    the regulation passed by government normally try to appease everyone: public, corporates, political class. In doing so, most of the time either the regulations are either delayed or are weak to get the desirable effects. I think that the dilemma any government faces is keep a balance among growth, public interest and censorship. This is both boon and curse of democracy. 

  8. Barbara Jorgensen
    September 26, 2012

    Interesting discussion and one that's probably debtaed every day. Whether it is the state or the Federal government, there is a point at which individuals cede the right to think for themselves. The big-soda ban in NYC is one such example. Cigarettes kill you, texting can kill oyu, obesity can kill you. At what point does an individual take responsibility for his/her own choices? I chose not to smoke. I can't text while driving–I can barely text while sitting. I hate soft drinks. My concern is whether it is at the state or federal level, people are going to be content let the state make decisions for them.

    On the other hand, there is a difference between being a danger to one's self, and a danger to others. Texting and smoking definitely fall in the latter category. I guess I'll defend your god-given right to drink a Big Gulp.

  9. wagnert in atlanta
    September 26, 2012

    I do not have a religious faith in corporate benevolence.  I have a deeply ingrained suspicion of both the effectiveness and desirability of governmental regulation.  Far too much of it is aimed at helping people who don't want — and don't need — to be helped.  Bloomberg's anti-Big Gulp, anti-saturated fat, make-restaurants-put-calories-on-the-menu diktats are an excellent example.  They don't help fat people, but they inconvenience everyone. 

    Why should it be the responsibility of a manufacturer to say, “Don't use our product in an idiotic fashion”?  And why doesn't it stretch to all manufacturers?  Should tobacco companies say, “Don't use our product at all”?  Cellphone manufacturers are good guys when they say, “Don't text while driving.”  Shouldn't publishers say, “Don't read while driving?”  Where are the ads from knife makers saying, “Don't cut yourself on our product'?  Should tool makers be required to advertise, “Don't hit yourself with our hammers, don't cut your finger off with our saws?” 

    Why, in our Great Republic, is Joe Average considered to be bright enough to choose his leaders but too stupid to understand that fire burns, water drowns and knives are sharp?  Sure, there are those who don't understand these things and get hurt, but whence cometh the notion that it's the government's mission to protect every man from himself and severely annoy the rest of us in the process.

    Let me point out that seat belt laws never saved a life.  Using seat belts saves lives.  Plenty of people are still sitting on their seat belts, and the great majority of them will never be fined, because the cost to local governments in time, effort and lost elections is too great.  It's just one more of those laws that can be invoked if you piss off a cop.  I mean, how can you prove in court that you did have your belt on?

    The worst of these well-meaning, stupid regulations produce vanishingly small benefits and monstrous annoyance.  They are hailed by those who love laws for their own sake, not for the social good they may do.  The rest of us modify Lincoln's, “As I would not be a slave, so I would not be a master,” to “I don't want to be a nanny and I don't want to be nannied.”

  10. David Benjamin
    September 26, 2012

    I think Barbara made the most salient point. Regulation isn't about your personal freedom, or even the responsibility of the corporation. It's about other people, bystanders, the public. When people use or misuse a product in a way that endangers or even annoys other people, neither the maker nor the user of the product is can be trusted to intervene on behalf of everybody else. A mediator is required to defend the publc interest. Appropriately, that mediator usually turns out to be a public institution, the government.

  11. Houngbo_Hospice
    September 26, 2012


    “Appropriately, that mediator usually turns out to be a public institution, the government.”

    Can we trust the government as a mediator? The governent is well known as a regulator enforcing compliance rules and facilitating transactions.

  12. Barbara Jorgensen
    September 27, 2012

    I think one of the reasons we see so many governments getting involved in these regulations is litigation. In some of the examples cited by our readers, regulations were a direct result of a lawsuit. I might be wrong, but weren't smoking bans an offshoot of “smoking is dangerous…”? and smoker lawsuits? I just read somewhere that a guy was awarded damages becuase he ate 10 bags of microwave popcorn everyday and developed health problems. SERIOUSLY? (That could be an oversimplification: I recently watched a documentary on the McDonald's hot coffee suit and it is very different from the way it has been reported.) At any rate, you can't legislate common sense.  Sadly, you have to protect yourself from people that don't have it!

    One of my all-time favorite warnings: “Do not put the battery in to the microwave.”

  13. Mr. Roques
    September 27, 2012

    Its funny how we norrmally have to go out of our way to get people to take care of themselves (motorcycle drivers wearing helmets, drivers using seatbelts, etc).

    I have a few apps that notice that I'm moving and ask if I'm driving or only a passenger and based on my response, block the app or not. What else can they do?

  14. Himanshugupta
    September 27, 2012

    Barbara, i agree with your statement that we cannot legislate common sense. Companies need to protect themselves by warning people not to do certain things (even though some are common sense). But with the advance technology that we use, sometimes common sense may not be that common. for example, i did not know that its dangerous to boil water or milk for coffee in microwave as the air remains trapped in the liquid and when coffee powder is poured in the liquid then the liquid starts to boil uncontrollably. I do not know if someone does not know such things can sue the company?

  15. Barbara Jorgensen
    September 27, 2012

    @himan: I didn't know that either. But I never use instant coffee.

  16. Barbara Jorgensen
    September 27, 2012

    Mr. R: Who even would have thought that something so innocuous and useful as a cell phone would end up being a cause of death? You are right in that manufacturers' ability to warn people and control their actions is limited.

  17. Himanshugupta
    September 30, 2012

    Mr. Roques, i did not quite understand the app that you're using. So, what does app do depending on your response? 

    I think people have a funny sense to protect themselves. People will protect themselves from rain even though getting wet may have not so severe consequences but they do little or nothing to protect themselves from accidents.

  18. Mr. Roques
    October 31, 2012

    It asks you if you're driving : if you say you are a passenger, it allows you to use it. If not, it blocks out. 

    Probably everyone selects “im the passenger”, even if they're driving but its probably a legal/moral issue… sort of a disclaimer.

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