Free To Choose: a personal Statement

Who Protects the Consumer?
209
Existing firms and existing drugs are protected from competition.
New entry is discouraged. Research that is done will be concen-
trated on the least controversial, which means least innovative,
of the new possibilities.
When one of us suggested in
a
Newsweek column (January 8,
1973) that for these reasons the FDA should be abolished, the
column evoked letters from persons in pharmaceutical work offer-
ing tales of woe to confirm the allegation that the FDA was frus-
trating drug development. But most also said something like,
"In contrast to your opinion, I do not believe that the FDA
should be abolished but I do believe that its power should be"
changed in such and such a way.
A subsequent column, entitled "Barking Cats" (February 19,
1973), replied:
What would you think of someone who said, "I would like to have a
cat provided it barked"? Yet your statement that you favor an FDA
provided it behaves as you believe desirable is precisely equivalent.
The biological laws that specify the characteristics of cats are no more
rigid than the political laws that specify the behavior of governmental
agencies once they are established. The way the FDA now behaves,
and the adverse consequences, are not an accident, not a result of
some easily corrected human mistake, but a consequence of its con-
stitution in precisely the same way that a meow is related to the
constitution of a cat. As a natural scientist, you recognize that you
cannot assign characteristics at will to chemical and biological enti-
ties, cannot demand that cats bark or water burn. Why do you sup-
pose the situation is different in the social sciences?
The error of supposing that the behavior of social organisms
can be shaped at will is widespread. It is the fundamental error
of most so-called reformers. It explains why they so often feel
that the fault lies in the man, not the "system"; that the way to
solve problems is to "turn the rascals out" and put well-meaning
people in charge. It explains why their reforms, when ostensibly
achieved, so often go astray.
The harm done by the FDA does not result from defects in
the people in charge—unless it be a defect to be human. Many
have been able and devoted civil servants. However, social, politi-
cal, and economic pressures determine the behavior of the people
supposedly in charge of a government agency to a far greater

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FREE TO CHOOSE: A Personal Statement
extent than they determine its behavior. No doubt there are ex-
ceptions, but they are rare—almost as rare as barking cats.
That does not mean that effective reform is impossible. But it
requires taking account of the political laws governing the be-
havior of government agencies, not simply berating officials for
inefficiency and waste or questioning their motives and urging
them to do better. The FDA did far less harm than it does now
before the Kefauver amendments altered the pressures and in-
centives of the civil servants.
CONSUMER PRODUCTS SAFETY COMMISSION
The Consumer Products Safety Commission exemplifies the
change in regulatory activity in the past decade or so. It cuts
across industries. Its main concern is not with price or cost but
with safety. It has wide discretionary authority and operates under
only the most general of mandates.
Activated on May 14, 1973, "[t]he Commission is specifically
mandated to protect the public against unreasonable risks of in-
jury from consumer products, to assist consumers in evaluating
the safety of these products, to develop standards for consumer
products, to minimize conflicts of these standards at the Federal,
state and local level, and to promote research and investigation
into the causes and prevention of product-related deaths, illnesses,
and injuries.
" 13
Its authority covers "any article or component part produced
or distributed (i) for sale to a consumer . . . or (ii) for the
personal use, consumption or enjoyment of a consumer" except
for "tobacco and tobacco products; motor vehicles and motor
vehicle equipment; drugs; food; aircraft and aircraft components;
certain boats; and certain other items"—almost all covered by
such other regulatory agencies as the Bureau of Alcohol, Tobacco
and Firearms, the National Highway Traffic Safety Administra-
tion, the FDA, the Federal Aviation Administration, and the
Coast Guard.
14
Although the CPSC is in its early stages, it is likely to become
a major agency that will have far-reaching effects on the prod-
ucts and services we shall be able to buy. It has conducted tests

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