Consumer Protection

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CONSUMER PROTECTION

CONSUMER PROTECTION. Legislative protection of the consumer dates back to the codes of antiquity. On the North American continent, provisions protecting consumers were incorporated into the earliest colonial codes. The 1648 Laws and Liberties of Massachusetts, for example, regulated the price of bread and butter, set standards for barrels and staves, and provided for inspections of commercial enterprises to ensure compliance with these regulations. A century and a half later, the architects of the new nation gave the federal government the power to promote consumer protection by granting Congress the Constitutional authority to "regulate Comerce … among the several States," and to "coin Money, regulate the Value thereof, … and fix the Standard of Weights and Measures."

Just as the economy underwent a transformation in the nineteenth century, so too did the amount and nature of consumer protection. In colonial agrarian communities, the buyer was effectively shielded by his knowledge of products and often by strong community sanctions against fraudulent practices. Rapid population growth, the rise of urban centers, and industrialization with its specialization and division of labor undermined these traditional protections. As a consequence, during the early nineteenth century, state and local authorities passed a deluge of economic restrictions. They enacted laws controlling the manufacture and sale of a wide range of products including chocolate, clapboards, firewood, fish, flax-seed, gunpowder, hops, nails, oils, sandals, shingles, shoes, and wood. They expanded the number of trades for which one needed a license. And they passed laws dealing with public markets, sale of unwholesome provisions, monopolies, frauds, usury, and weights and measures.

One feature of this early regulatory regime was that authority was local and diffuse. Legislatures did not create agencies to protect consumers, but rather gave this responsibility to an array of local and public officials—including mayors, justices of the peace, inspectors, weighers, cullers, surveyors, measurers, and gaugers. In the late nineteenth century, however, social and economic changes led to a centralization of regulatory authority and new mechanisms for protecting consumers. By the early twentieth century, a movement to create state commissions to regulate electric and gas utilities was sweeping across the country. During this same period, federal intervention in the economy became directed at stabilizing industries wracked by competition, while at the same time protecting consumers. Following journalistic exposés of the sale of unsanitary meats and the peddling of worthless patent medicines, Congress passed the Meat Inspection Act and the Pure Food and Drug Act in 1906. That same year, it expanded the powers of the Interstate Commerce Commission to include railroad rate-setting. And in 1914, Congress established the Federal Trade Commission to monitor false and misleading advertising.

Much of this late-nineteenth-and early-twentieth-century consumer legislation was ineffective because of narrow court interpretations and inadequate enforcement. Furthermore, the business community often helped draft the legislation and favored regulatory strategies that ameliorated only the worst effects of competition and that did not offer the most comprehensive or effective protection to consumers. Out of this milieu emerged a consumer movement directed at the proliferation of rival, often exaggerated product claims and dubious business practices. The advertising industry responded by creating the National Better Business Bureau in 1925 in an effort at self-policing. The Bureau was to monitor the integrity of national advertising, but it had to rely on voluntary codes of conduct since it had no enforcement powers. Private consumer education groups and club-women pushed for more protective legislation and published "guinea pig" books, which warned against product quackery. This agitation lead to the creation of Consumers Research in 1928, a private nonprofit organization designed to substitute the publication of laboratory test results for partisan advertising claims. Consumers Research was soon to be overshadowed by a rival nonprofit testing organization, Consumers Union, formed in 1936. The latter had by the beginning of the twenty-first century, a subscription roster of over four million for its magazine Consumer Reports.

These early consumer testing efforts greatly accelerated the growth of consumer legislation, including amendments that strengthened the Food and Drug Act and the Federal Trade Commission law and laws that mandated and supported consumer protection efforts in the Department of Agriculture, the Department of Transportation, and a host of other federal, state, and local govern-mental agencies. In 1961, President John F. Kennedy formed the Consumer Advisory Council. Lyndon B. Johnson established the position of special assistant on consumer affairs and the President's Committee on Consumer Interests.

These new executive branch offices reflected the emergence of the modern consumer movement. And the man most responsible for the modern consumer movement was Ralph Nader. Nader can claim credit for some of the nation's most important federal consumer protection laws, including the National Traffic and Motor Vehicle Safety Act (1966), the Freedom of Information Act (1966), and the Consumer Product Safety Act (1972). Perhaps Nader's greatest success was improved auto safety. His 1965 book, Unsafe at Any Speed, exposed the safety mishaps and design flaws of U.S. automobiles and spurred safety and design changes in the auto industry leading to such innovations as seat belts, air bags, and antilock brakes. Traffic deaths in the United States fell from roughly 55,000 in the early 1970s to 47,000 in 1990 due to Nader's efforts as well as such other factors as the raising of the drinking age to twenty-one in most states.

Nader extended and institutionalized his effort by using the almost half-million dollars he received from General Motors to settle an invasion of privacy lawsuit in the 1960s to fund a network of dozens of consumer groups. These organizations became training grounds for political activists and lawyers. Some of Nader's Raiders eventually went into private law practice where they continued to sue businesses on behalf of injured consumers and workers, helping to generate an increase in tort lawsuits in the 1970s and 1980s. Many of these lawsuits addressed real wrongs. Thousands of women were part of the class-action suits brought against the manufacturers of tampons causing toxic shock syndrome, a form of poisoning that killed or permanently injured the women. The lawsuit won millions of dollars in damages for women around the country and forced tampon manufacturers to alter their products. Lawsuits also recovered damages for victims of the Ford Pinto, an automobile that, because of a design flaw, tended to explode and burn when struck from behind. Businesses claimed, however, that many lawsuits were filed on much less justifiable grounds, clogging the courts and leading to outlandish jury verdicts, particularly when juries awarded punitive damages designed to punish defendants for their actions rather than compensate plaintiffs.

Nader did not work alone. The Consumer Federation of America formed national, state, and local consumer organizations in the 1960s and 1970s to assist in the handling of buyers' complaints, to lobby for legislation, and to introduce consumer education into the schools. Other organizations emerged, such as the Center for Science in the Public Interest, to support research and advocacy. And consumer testing organizations similar to the Consumers Union sprang up abroad and became federated in an International Organization of Consumers Unions founded in The Hague in 1960 to afford an international technical interchange.

As the modern consumer movement matured during the late 1970s and into the 1980s and 1990s, it found itself both enjoying the successes of trying to improve product safety and consumer awareness but also battling strong political and business attempts to curb or eliminate the movement's power. The consumer movement's successes included such important safety measures as the standard use of seat belts and air bags in cars and trucks sold in the United States. Consumers could also learn about the nutritional level of the packaged foods they bought, once the federal government, under prodding of the consumer movement, forced foodmakers to include such labeling on products. The movement also showed success on the anti-smoking front, with many public and private places across the country banning smoking. In addition, it forced regulatory agencies to recognize that their mission is not centrally that of assisting business but of helping to provide honest and fair dealing in the marketplace.

To others, however, the movement's maturity strangled the nation and business with regulations, increased costs for consumers, employed too many nonproductive lawyers, and added to the individual and collective sense of aggrievement that permeated much of American society during the late twentieth century. As conservatives reasserted their power—first with Ronald Reagan's two terms as president during the 1980s, then with the Republican sweep of the 1994 congressional elections—many of the political and bureaucratic gains of the consumer movement came under attack. Taking their cue from the 1994 campaign document known as the "Con-tract with America," congressional Republicans introduced legislation the following year to curb or repeal such legislation as the Clean Water (1967) and Clean Air (1970) acts, which they deemed harmful to business. They continued efforts begun in the 1980s to restrict punitive damages. They sought to severely restrict the ability of stockholders to sue a company while also making it more difficult to sue a company for product liability. And they moved to repeal some of the nation's banking and bankruptcy laws that benefited consumers. Although some of these efforts were successful, the strength of the consumer movement and the deep public support for its fundamental aims ensured strong resistance to any serious threats to the laws and regulatory apparatus that provides protection to consumers.

BIBLIOGRAPHY

Goodwin, Lorine Swainston. The Pure Food, Drink, and Drug Crusaders, 1879–1914. Jefferson, N.C.: McFarland, 1999.

Holsworth, Robert D. Public Interest Liberalism and the Crisis of Affluence: Reflections on Nader, Environmentalism, and the Politics of a Sustainable Society. Boston: G.K. Hall, 1980.

McCraw, Thomas K. Prophets of Regulation. Cambridge, Mass.: Belknap Press of Harvard University Press, 1984.

Mayer, Robert N. The Consumer Movement: Guardians of the Marketplace. Boston: Twayne Publishers, 1989.

Nader, Ralph. Crashing the Party: Taking on the Corporate Government in an Age of Surrender. New York: Thomas Dunne Books/St. Martin's Press, 2001.

Novak, William J. The People's Welfare: Law and Regulation in Nineteenth-Century America. Chapel Hill: University of North Carolina Press, 1996.

Silber, Norman Isaac. Test and Protest: The Influence of Consumers Union. New York: Holmes & Meier, 1983.

Thomas G.Gress

Colston E.Warne/c. p.