New regulations on laundry detergent pods would be cumulative, inefficient, and an example of why our federal regulations cost as much as Canada’s entire GDP

By Eric Awerbuch

The federal government is once again using tragedy to procure more regulatory power over private business.  Beginning in 2012, laundry detergent businesses began selling detergent pods—small, single-use packets of concentrated detergent encased in a water soluble membrane.[1]  Instead of having to pour and measure (an occasionally messy endeavor), Americans can insert one detergent pod per one load of laundry in the washing machine, regardless of whether he or she is washing whites or darks in hot or cold water.  The pods, which purport to clean, remove stains, and brighten, come at a reasonable price of about 35 cents per load.[2]

Unfortunately, approximately 17,230 children under the age of 6 have been poisoned by the pods since 2012.[3]  Of those 17,230 cases, 769 children were hospitalized.[4]  Worst of all, one 7-month old boy died in a Florida hospital because of poisoning after eating a pod.[5]  The source of danger apparently stems from the appearance of the detergent pods, which may resemble candy to certain children.

The fact that children have consumed detergent pods is a serious issue that should be addressed.  In response, one politician, U.S. Senator Charles E. Schumer (D-N.Y.), recently called on “manufacturers and federal consumer protection experts to make the product less attractive to children, and for them to use child safe caps on the dispensers …”[6]  The Senator specifically called on the Consumer Product Safety Commission “to issue stronger regulations on packaging and labeling these products …”[7]  One such regulation is to mandate that detergent manufacturers use “child safe caps” such as those “commonly used on prescription drug bottles.”[8]  Senator Schumer’s recent remarks are not his first attempt to encourage the government to increase regulations on the pods; he previously called on “the Consumer product Safety Commission to increase safety requirements for dishwashing and laundry detergent pods” and  advised that the “Consumer Product Safety Commission must fully explore both mandatory and voluntary safety requirements for companies to follow in order to prevent children from being able to access and consume detergent products.”[9]

Senator Schumer’s statements seem logical enough, and appear to be the prevailing logic applied by the vast majority of American politicians—if a product is harming consumers, especially children, then it is inevitably the government’s duty to protect those consumers.  But persuasive as that rhetoric may be, the emotional strings of our daily news cycle cannot dictate the scope of government.  The federal government already has ample power to protect children from the poisonous effects of the detergent.  Laundry detergent is currently regulated by three separate federal statutes and a bevy of federal regulations under the Federal Hazardous Substance Act,[10] the Consumer Product Safety Act,[11] and the Poison Prevention Packaging Act.[12]

Instead of regulating detergent under the existing legal framework, Senator Schumer, as politicians often do, has asked for new regulations.  At what point can the government accept that it has enough existing authority?  How can three separate federal statutes and their regulations not provide enough power to allow the government to ensure that children are not poisoned by laundry detergent?  In each instance, we see that government has the means available to regulate or remove from market dangerous products.  For example, the Federal Hazardous Substance Act already requires that hazardous substances include certain cautionary remarks on their labels, such as the statement “Keep our of the Reach of Children.”[13]  In addition, the Consumer Product Safety Commission has already implemented extensive regulations governing the packaging of products which may harm children.[14]  Those regulations specifically require that packaging be tested to ensure that 80 or 85 percent of the time, depending on the testing done by the manufacturer, children cannot open the package.[15]  The government could work within the current regulations to ensure that children are sufficiently protected from the harms of laundry detergent pods.

The logic that more regulation brings more safety is flawed, and it comes with great cost.  Federal regulations cost time and money to implement, abide by, and enforce.  That fact, combined with politicians’ inclinations to regulate anything and everything has resulted in an excessive amount of financial waste.  Indeed, according to the government’s own figures, the estimated burden of federal regulations in 2012 exceeded $1.8 trillion,[16] or about the same amount as Canada’s or India’s entire Gross Domestic Product.[17]  That $1.8 trillion is alarming, and begs the question, when, if ever, will the government stop expanding?

The dilemma we face regarding laundry detergent pods is nothing new.  On the one hand, children are being poisoned because of the pods.  On the other hand, the pods are a product of American consumers’ desires to be able to more conveniently run their washing machines.  So, the product has a benefit we want to keep, and a cost we want to avoid.  If we allow ourselves to escape the pervading view that government regulation alone must keep us safe, we will see that there are more efficient ways to prevent children from being poisoned by the pods.  For example, if a child is poisoned by a product, then that child’s parents’ have the ability to pursue a products liability action against the manufacturer to recover any damages suffered by the child and/or the family.  If indeed the manufacturer is at fault, it will be punished and forced to pay.  The manufacturer will then face a decision: to continue to risk additional lawsuits, or to change the way it packages and labels the laundry detergent pods.  If there are sufficient successful lawsuits and damages, then it will be in the manufacturers’ best interests to make the product’s packaging more child resistant in order to prevent future lawsuits.  The manufacturing company will then research and discover the most cost-efficient method to child-proof and/or sufficiently label the pods.

Given that our economy is already being excessively burdened by federal regulations, we must stop following our gut instinct to have the federal government regulate each and every potential risk of life.  Scare tactics, such as pronouncing that laundry detergent is a risk to our children, is often the easiest way for governments to expand their powers.  However, that line of logic has resulted in an astronomical waste of economic resources.  Therefore, our society’s first reaction to problems involving consumer goods’ risk versus reward must stop being to turn to the government to enact new regulations, especially where, as here, existing regulations are sufficient to prevent the harm.