Hewitt: Federal control costs jobs 

How many jobs have been lost to, or not created because of, the enormous costs to manufacturers of 2008’s Consumer Products Safety Improvement Act?

How many more jobs are being sacrificed to employers’ uncertainty about the impact of Obamacare?

Tens of thousands of construction industry jobs have been lost to the combined effects of the Clean Water Act and the Endangered Species Act.

And now the U.S. Environmental Protection Agency is wielding a seven-decade-old statute in radical new ways that will cost many more jobs unless the agency is checked — and soon.

You have probably never heard of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), but earlier this month the EPA levied fines totaling $500,000 on four manufacturers, including The North Face outdoor-gear maker, for claiming their products provided “antimicrobial protection.”

“We’re seeing more and more consumer products making a wide variety of antimicrobial claims,” said Katherine Taylor, associate director of the Communities and Ecosystems Division in the EPA’s Southwest region. “Whether they involve shoes, headphones or household fixtures, EPA takes these unsubstantiated public health claims very seriously.”

It’s uncertain whether or not the products sanctioned by the feds actually did provide any antimicrobial protection.

“While The North Face, Califone and Saniguard products all incorporated EPA-registered silver-based antimicrobial compounds to protect them against deterioration,” the EPA’s press release said, “they were never tested or registered to protect consumers against bacteria, fungus, mold and/or mildew.”

And there you have the nanny state in all its fury. No testing! No registration! No proof of a marketing claim of “antimicrobial protection.”

Whatever the merits of the manufacturers’ claims, it’s difficult to see a significant threat to public health or safety in the advertising that brought down the wrath of the EPA on these companies.

It’s easy, on the other hand, to see the cost of the fines, and the almost certain additional significant costs for attorneys and other staff who had to deal with the problem. It’s easy to imagine the cost of new marketing materials and of increased regulatory compliance.

And it doesn’t take long to conclude that such impacts to a company’s bottom line mean jobs lost because of those increased costs.

The EPA’s website asserts that the “EPA is concerned about these claims because, in addition to being unlawful, they are also potentially harmful to the public [e.g., if people believe that a product has a self-sanitizing quality, they may become lax in their hygiene practices]. Practicing standard hygiene practices has been proven to prevent the transmission of harmful microorganisms and, therefore, reduce the possibility of public health risk.”

Does the EPA have to substantiate such ridiculous, self-serving claims in the way that manufacturers have to substantiate claims of “antimicrobial protection”? If so, it’s a safe bet that the proof is much stronger on the side of the manufacturers’ advertising than on the EPA’s ginned-up rationale for regulatory overkill.

Whatever the merits might be of the EPA’s demands that advertising of “antimicrobial” claims cease, there can be no merit to a half-million dollar fine being imposed. If Congress is serious about helping the economy create jobs, it can start by summoning EPA brass to a hearing and asking for a detailed rationale for its draconian fines and for its reading of the statute.

The National Association of Manufacturers, already fighting the good fight on CPSIA, should add FIFRA to its list of regulatory overkills imperiling the recovery. NAM’s “Shop Floor” blog keeps tabs on such matters, and hopefully it will soon be watching the FIFRA watchdogs.

Examiner columnist Hugh Hewitt is a law professor at Chapman University Law School and a nationally syndicated radio talk show host who blogs daily at www.hughhewitt.com.


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