David R. Henderson  

Proposition 65 and the Red Licorice Police

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My wife is a big fan of red shoestring licorice. She tried to order some on-line from an out-of-state vendor. Here's the e-mail she got back:

Please accept our sincerest apologies. Due to changes in the California Proposition 65 at this time we are not able to ship products containing Licorice to California. We are sorry for any inconvenience or disappointment this may cause. The item has been removed from your order and no charge will be made. I have sent a request to our staff to confirm if the red and strawberry licorices will remain among the items that are restricted or if the status of these may change. Customer Service will notify you within two business days with an update.
Please contact your state legislator if you have additional questions or concerns about California Proposition 65.

My wife replied:
Dear xxxx,
Thank you for your message. Ah, the joys of living in California. Pretty soon, they'll be sending agents to our homes to search our shelves for such dangerous contraband as red licorice. Of course, I know it's not your company's fault and that you have no choice but to follow this insane law. Oh well. Thanks again.

And then there was actually a human on the other hand, someone with a sense of humor. The human replied:
Thank you for your reply.
We do need to follow the laws, but I love your sense of humor.
Sincerely,
xxxx

I posted about Proposition 65, here. Just one more assault on our freedom, this one from California voters.


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CATEGORIES: Regulation



COMMENTS (20 to date)
Richard A. writes:

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JLV writes:

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Ken B writes:

For more than 20 years now I have been such horror stories out of California. This is a smaller version of the kind of woes they bought with electricity and gas.
I still find it strange though; when I was a child California was the Golden State, and in university Silicon Valley was still the greatest innovation center in the world.

Even worse of course is that they might not send black licorice.

NZ writes:

There are some highly-skilled drivers who could safely handle their vehicles at extremely high speeds, but speed limits are designed with average- and low-skilled drivers in mind. "Average" drivers predominate, after all. (The highly intelligent wives of econ professors are probably not "average" consumers of sugary snacks.)

My problem with laws like Prop 65 is that there isn't much convincing evidence that banning foods like red licorice will actually do a net good. Just like with tobacco and drugs, alarmist propaganda sets the agenda instead of an honest assessment of reality.

If the facts were more convincing, however, then I wouldn't have a problem with prohibitive laws, even though they curtail some of our freedom. Freedom is nice, but without some stability and order it can't be enjoyed in the first place.

kebko writes:

I think this link will work. Even the Magic Kingdom will kill you:

https://sphotos-a.xx.fbcdn.net/hphotos-prn1/c0.0.403.403/p403x403/527376_10152395136240704_419012310_n.jpg

Eric writes:

Does anyone know why this doesn't run afoul of the fact that only Congress can regulate interstate commerce? This question is real, not rhetorical.

johnleemk writes:

Quite clearly, this is all the immigrants' fault.

Kevin Driscoll writes:

I don't understand. Has licorice been shown to cause cancer?

Krishnan writes:

Proposition Next: There is perfect correlation (1.0) between the drinking of water, breathing of oxygen and cancer, death. Everyone who has ever lived has died after drinking water and breathing in oxygen. Anyone who has had cancer has drunk water and breathed in oxygen. Unlike humans, plants can take in CO2 and breathe out O2. California will mandate therefore that humans not allowed to drink water or breathe in oxygen - allowing for the existence of those living organisms, plants that do not contribute to CO2 through consumption of O2. Humans: Better not to exist than to exist and die - because we care.

(Someone in the City Council in San Francisco is considering having this in the next election cycle)

PrometheeFeu writes:

Wow, you live in California David? You're taking substantial legal risks with this blog! Here, let me fix that for you:

WARNING: This blog contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.

egd writes:

Eric writes:

Does anyone know why this doesn't run afoul of the fact that only Congress can regulate interstate commerce? This question is real, not rhetorical.

The answer you're looking for is the "Dormant Commerce Clause."

Congress can regulate interstate commerce, but states can regulate commerce within their own borders. What happens when a state's attempt to regulate commerce within its borders burdens interstate commerce? The dormant commerce clause.

Basically, states can regulate commerce within their own borders so long as it does not seriously burden commerce between the states. Since this law only burdens California and California consumers, there's no serious burden on interstate commerce.

If this law were applied to require a warning label to all products arriving at the Port of L.A., there could be a problem.

On the main topic, I'm sure that there's black market licorice you could import into the state. It saddens me to learn that there's such thing as black market licorice. Or maybe it's grey market.

gamma writes:

I am a red licorice fan myself, and am in the fortunate position of being able to buy red licorice in my state. Unfortunately, I have a hard time finding my favorite brand, so I am always scouting for a good substitute. What brand does your wife recommend?

PrometheeFeu writes:

@edg

I think you are incorrect. This also burdens the producers in other states which may wish to sell to California.

My understanding of the dormant commerce clause is that it acts more like a "most favored country" test in the WTO context. So California is free to impose this requirement as long as that requirement is applied equally to California and non-Californian producers.

As long as the state's actions are aimed at legitimate local concerns and that the effects on interstate commerce is merely incidental, then the state can act. So for instance, while California could not mandate the labeling of products coming through the LA port specifically, it probably could mandate the labeling of all goods produced, transported or sold in California which would reach goods transiting through the port of LA. They may be able to use as a legitimate purpose the fact that it's much easier to enforce labeling if all goods must be labeled at all times rather than at specific points. (In a different context, this is the Raich argument. Though now that I write this, maybe I'm wrong because CA doesn't get to use the N&P clause)

IANAL

Brad D writes:

Why do people who cherish liberty and freedom continue to live in a state whose elected officials oppose such liberty at every turn?

Move to Texas already.

egd writes:

PrometheeFeu writes:

I think you are incorrect. This also burdens the producers in other states which may wish to sell to California.

Prop. 65 only burdens producers in other states that want to engage in commerce in California. The California law does not impact interstate commerce that only passes through California.

There are two parts to the Dormant Commerce Clause, the first is whether the law discriminates against out-of-state commerce and the second is whether the law is source neutral, but impermissibly burdens interstate commerce and the burdens outweigh the local benefits.

A good case on this is Bibb v. Navajo Freight Lines, Inc. Illinois tried to require all trucks have a certain type of mud flap, while other states required or permitted other types. The court reasoned that Illinois' regulation so burdened interstate commerce that it was unconstitutional.

David's Wife writes:

@Kevin: A substance called Estragole, a natural organic compound, is found in anise and is suspected to be a carcinogen. The typical studies, though, subject rodents to about 1000 times the amount that a typical human would ingest, and there is no conclusive evidence that it is, indeed, harmful to humans. What's more, red licorice generally does not even contain licorice extract, so go figure.

@Gamma, I like the red shoestring licorice from Vermont Country Store. They also have good red Scotty Dogs!

shecky writes:

Is this for real? I can assure you that red licorice is still sold in California. And 99% sure red shoelace licorice is still sold in California. Black licorice, on the other hand, I cannot vouch for, as I've never sought out that vile stuff.

PrometheeFeu writes:

@shecky:

California doesn't ban red licorice. But it does require the labeling of certain products as "known to the state of California to cause birth defects, cancer" (or something like that) Most likely the manufacturer in question just didn't want to go through the process of complying with California labeling requirements. (Or assume the liability that may attach due to improper labeling)

@egd:

Prop. 65 only burdens producers in other states that want to engage in commerce in California. The California law does not impact interstate commerce that only passes through California.

I didn't mean to challenge the idea that this would be the analysis which a court would engage in. But given that this is an economic blog as opposed to a legal blog, I think it is fair to point out that out-of-state producers are burdened by Prop 65, even if that burden would not be considered improper by a federal court.

Thanks for the cite. You are right.

Russell writes:

David: Do you think there's a point of craziness that would drive you to move from CA?

I live in slightly less crazy MD, though our legislators seem intent on catching CA. I'm quite close to my limit and will likely leave MD soon.

egd writes:

PrometheeFeu writes:

I didn't mean to challenge the idea that this would be the analysis which a court would engage in. But given that this is an economic blog as opposed to a legal blog, I think it is fair to point out that out-of-state producers are burdened by Prop 65, even if that burden would not be considered improper by a federal court.

I agree with you on the economic effects of Prop 65. I was only addressing Eric's question about how this regulation can stand legally given Congress' authority to regulate interstate commerce.

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