Banning a Product or Process

Perhaps the most fundamental difference in public and private conceptions of safety regulation is that only the government gives serious consideration to prohibition as a regulatory strategy. The private sector

tends to assume that the object of regulation is socially desirable and is (or can become) sufficiently safe to be "acceptable." UL begins with the assumption that a product is not inherently or unreasonably safe. If it is too unsafe, UL will not list it. But the issue rarely comes up. The electronic bucking bronco is the only example that several UL officials could name of a product that UL would not accept for testing. In contrast, public agencies generally assume practically the opposite: that the object of regulation is suspect and may not be sufficiently safe to be socially acceptable. The CPSC space heater rule began as a proposed ban on all space heaters. More recently, the agency proposed a ban on certain all-terrain vehicles.

Participants in private standards-setting, cognizant of the antitrust law, argue that private standards are never intentionally prohibitory. They rarely are—at least explicitly. But all standards of any substance prohibit something. This clouds the distinction between public and private conceptions of safety regulation. Both sectors utilize prohibition in some form. The difference in perspectives is more a matter of degree than a difference in kind. Nevertheless, the distinction is important because the public sector is more likely to favor this strategy.

Private standards-setters prohibit all sorts of specifics through requirements that alter products or processes incrementally. They often prohibit specific product features such as power lawn mowers without an automatic shutoff and foot guard. But they are reluctant to prohibit at a more general level. On rare occasions, however, they prohibit an entire line or type of product. The ANSI/AGA standard for gas space heaters falls somewhere in between: regulating enough specific product features to prohibit a whole type of heater, the small porcelain bathroom model. The prohibition is not direct, however; the porcelain model simply could not meet all of the provisions added to the standard. Although that model has fallen by the wayside, other types of space heaters have taken its place. A representative of the gas appliance manufacturers describes it as a "drop-out ban." Prohibition at a more general level is out of the question.