Author Archives: Admin Admin

An interesting development in state regulation of wine shipment

Can one state enforce another state’s laws that prohibit direct-to-consumer wine shipment from out-of-state retailers while allowing it by in-state retailers?  That’s the question posed in a recent New York case.

The New York State Liquor Authority has a rule that prohibits licensees from engaging in “improper conduct.”  The liquor regulator argues that direct shipments by retailers that violate other states’ laws constitute improper conduct.  It has fined, revoked licenses, and filed charges against New York retailers that it believes have shipped wine illegally to customers in other states. One retailer, Empire Wine, refused to settle and has sued the liquor authority in state court, claiming that the “improper conduct” rule is unconstitutionally vague and that the liquor authority cannot enforce other states’ laws that discriminate against interstate commerce.

Many states continue to prohibit direct shipment from out-of-state retailers. For example, 40 states do not allow New York retailers to ship directly to consumers.  This harms consumers, because it is usually out-of state-retailers, rather than wineries, that offer significant savings compared to in-state retailers. In a 2013 article published in the Journal of Empirical Legal Studies, Alan Wiseman and I identified two different anti-consumer effects of laws that allow out-of-state wineries to ship direct to consumer but prohibit out-of-state retailers from doing so. First, these laws deprive consumers of price savings from buying many bottles online: “Online retailers consistently offered price savings on much higher percentages of the bottles in each year—between 57 and 81 percent of the bottles when shipped via ground and between 32 and 48 percent when shipped via air. Excluding retailers from direct shipment thus substantially reduces—but does not completely eliminate—the price savings available from purchasing wine online.” Second, these laws reduce competitive pressure on bricks-and-mortar wine stores, since they exclude lower-priced out-of-state retailers from the local market. Thus, the laws likely harm consumers who buy from their local wine shops, not just consumers who want to buy online. (The published version of the paper is behind a paywall, but you can read the working paper version at SSRN.)

(Photo credit: http://srxawordonhealth.com/2011/07/11/exercise-in-a-bottle/)

 

How Complete Are Federal Agencies’ Regulatory Analyses?

A report released yesterday by the Government Accountability Office will likely get spun to imply that federal agencies are doing a pretty good job of assessing the benefits and costs of their proposed regulations. The subtitle of the report reads in part, “Agencies Included Key Elements of Cost-Benefit Analysis…” Unfortunately, agency analyses of regulations are less complete than this subtitle suggests.

The GAO report defined four major elements of regulatory analysis: discussion of the need for the regulatory action, analysis of alternatives, and assessment of the benefits and costs of the regulation. These crucial features have been required in executive orders on regulatory analysis and OMB guidance for decades. For the largest regulations with economic effects exceeding $100 million annually (“economically significant” regulations), GAO found that agencies always included a statement of the regulation’s purpose, discussed alternatives 81 percent of the time, always discussed benefits and costs, provided a monetized estimate of costs 97 percent of the time, and provided a monetized estimate of benefits 76 percent of the time.

A deeper dive into the report, however, reveals that GAO did not evaluate the quality of any of these aspects of agencies’ analysis. Page 4 of the report notes, “[O]ur analysis was not designed to evaluate the quality of the cost-benefit analysis in the rules. The presence of all key elements does not provide information regarding the quality of the analysis, nor does the absence of a key element necessarily imply a deficiency in a cost-benefit analysis.”

For example, GAO checked to see if the agency include a statement of the purpose of the regulation, but it apparently accepted a statement that the regulation is required by law as a sufficient statement of purpose (p. 22). Citing a statute is not the same thing as articulating a goal or identifying the root cause of the problem an agency seeks to solve.

Similarly, an agency can provide a monetary estimate of some benefits or costs without necessarily addressing all major benefits or costs the regulation is likely to create. GAO notes that it did not ascertain whether agencies addressed all relevant benefits or costs (p. 23).

For an assessment of the quality of agencies’ regulatory analysis, check out the Mercatus Center’s Regulatory Report Card. The Report Card evaluation method explicitly assesses the quality of the agency’s analysis, rather than just checking to see if the agency discussed the topics. For example, to assess how well the agency analyzed the problem it is trying to solve, the evaluators ask five questions:

1. Does the analysis identify a market failure or other systemic problem?

2. Does the analysis outline a coherent and testable theory that explains why the problem is systemic rather than anecdotal?

3. Does the analysis present credible empirical support for the theory?

4. Does the analysis adequately address the baseline — that is, what the state of the world is likely to be in the absence of federal intervention not just now but in the future?

5. Does the analysis adequately assess uncertainty about the existence or size of the problem?

These questions are intended to ascertain whether the agency identified a real, significant problem and identified its likely cause. On a scoring scale ranging from 0 points (no relevant content) to 5 points (substantial analysis), economically significant regulations proposed between 2008 and 2012 scored an average of just 2.2 points for their analysis of the systemic problem. This score indicates that many regulations are accompanied by very little evidence-based analysis of the underlying problem the regulation is supposed to solve. Scores for assessment of alternatives, benefits, and costs are only slightly better, which suggests that these aspects of the analysis are often seriously incomplete.

These results are consistent with the findings of other scholars who have evaluated the quality of agency Regulatory Impact Analyses during the past several decades. (Check pp. 7-10 of this paper for citations.)

The Report Card results are also consistent with the findings in the GAO report. GAO assessed whether agencies are turning in their assigned homework; the Report Card assesses how well they did the work.

The GAO report contains a lot of useful information, and the authors are forthright about its limitations. GAO combed through 203 final regulations to figure out what parts of the analysis the agencies did and did not do — an impressive accomplishment by any measure!

I’m more concerned that some participants in the political debate over regulatory reform will claim that the report shows regulatory agencies are doing a great job of analysis, and no reforms to improve the quality of analysis are needed. The Regulatory Report Card results clearly demonstrate otherwise.

Birth control, keg stands, and moral hazard

A Colorado organization managed to produce ads promoting health insurance under the Affordable Care Act that are so goofy that some supporters thought they were a parody produced by over-caffeinated tea partiers. But the ads are more than just an unwitting parody. Some of them also unwittingly illustrate an economic principle that is crucial for understanding the cost of health insurance: moral hazard.

Two of the best examples are reproduced below.

lets get physical

keg stand

Source: www.doyougotinsurance.com

Contrary to what you might think after reading the ads, “moral hazard” does not mean health insurance is hazardous to your morals. (For some commentary on what these ads say about morality, look here.)

Moral hazard refers to an insured party’s incentive to take greater risk because the insurer will pay the costs if there is a loss. The two ads above pretty clearly say, “Go ahead and engage in risky behavior, because if there’s a cost, your health insurance will take care of it.”

In the health care context, moral hazard can also involve excessive use of health care services because the insurer is paying the bill. “Excessive,” in this context, means that the patient uses a service even though its cost exceeds the value to the patient.  For example, my Mercatus colleague Maurice McTigue tells me that before New Zealand reformed its health service, a lot of elderly people used to schedule monthly visits to the doctor’s office because it was free and provided a good opportunity to socialize with friends and neighbors. Visits dropped significantly after New Zealand’s health service instituted a $5 copay for doctor visits — which suggests that some of these visits were pretty unnecessary even from the patient’s perspective!

Moral hazard can have a big influence on the affordability of health insurance. Moral hazard losses in private insurance plans can equal about 10 percent of spending. Moral hazard losses in Medicare and Medicaid are much higher, equal to 28-41 percent of spending. (References for these figures are on page 8 of this paper.)

Duke University health care economist Christopher Conover and I examined the eight major regulations rushed into place in 2010 to implement the first wave of Affordable Care Act mandates. The government’s analysis accompanying these regulations failed to take moral hazard into account. In other words, federal regulators extended insurance coverage to new classes of people (such as “children” aged 21-26) and required insurance plans to offer new benefits (such as a long list of preventive services), without bothering to figure out how much of the resulting new health care expenditures would be wasted due to moral hazard.

Is it any wonder that health insurance under the Affordable Care Act has turned out to be less affordable for many people? Makes me want to do a keg stand to forget about it. After all, if I fall down and get hurt, I’m covered!

How many people still have their old health plans?

A few days ago, I pointed out that many people with employer-provided health insurance plans may not be able to keep the same plan, because even some small changes to employer-sponsored plans could make them forfeit their “grandfathered” status. Duke University health care economist Christopher Conover and I noted in 2012 that the “grandfathering” regulation could have been written much more flexibly to prevent some of this.

On October 30, Chris published an article in Forbes that put some numbers on this abstraction. Based on survey data showing what percentage of plans complied with various provisions of the Affordable Care Act (ACA), he estimated that 129 million (68%) will not be able to keep their old health insurance plans, even if they liked them.  That does not mean these people will go uninsured. Rather, they will have to buy more expensive plans that include coverages mandated in the ACA.

This result is consistent with figures the Department of Health and Human Services supplied in its 2010 analysis of the grandfathering regulation that established the very restrictive terms an insurance plan had to meet if employers or policyholders wanted to keep it.

The true promise of the ACA is now clear: “If you like your current health plan, tough luck; you will buy a plan with coverage the federal government has decided you must have.”

 

If you’re an employee, do you still have your old health insurance plan?

The recent discovery that the federal government knew in 2010 that many people would not be able to keep their old health insurance under the Affordable Care Act has made nationwide news. But most of the discussion has focused on the market for individual and small group policies. A much bigger group of people — those of us with employer-provided insurance — are affected by the same “grandfathering” regulation that affects individual policies. And as I pointed out in an op-ed in The Hill yesterday, the Department of Health and Human Services’ 2010 analysis accompanying this regulation predicted that 39-69 percent of employer plans would no longer be grandfathered by 2013. (If you don’t believe me, you can download the grandfathering regulation and read the analysis yourself, on pages 34,550-34,553.)

Why has the effect on employer-provided policies received so little attention, even though it potentially affects a lot more people?

I suspect it’s a transparency issue.

If the employer makes changes to the plan that prevent it from being grandfathered, the new plan must include a number of new, costly coverages, such as childbirth, children’s vision care, psychological services, and substance abuse treatment. But employees do not receive letters in the mail saying that they can no longer continue their prior insurance plan because it does not comply with the ACA. Instead, the employer and the insurance company simply modify the plan, and the premiums change to reflect the cost of the new mandates.

Since employers usually pay most of the premium, employees do not see the full cost increase. Any increase in the employee’s share of the premiums is paid with pre-tax dollars, which further cushions the blow. And since we’re all conditioned to expect the cost of health insurance to go up every year, employees are not likely to ask how much of the premium increase occurred because of the new mandates versus other factors.

As a result, many employees may believe they’ve kept their old health insurance plan even if they haven’t!

 

To solve a problem, first understand its cause

A key principle of smart regulation is that regulators should first understand the nature, extent, and cause of the problem they are trying to solve before they write a regulation. (It’s even the first principle of regulation listed in Executive Order 12866, which governs regulatory analysis and review in the executive branch).

On the federal level, this principle is often honored more in the breach than in the observance. For a good example of what can happen on the state and local level when this principle is ignored, one need look no further than a recent study on the costs of excessive alcohol consumption funded by the Centers for Disease Control.

1655-barrel for drunk

Credit: Christy K. Robinson

The study estimates that binge drinking is responsible for about 76 percent of the social costs of excessive drinking, and underage drinking is responsible for another 11 percent. (“Binge drinking” was defined as 5 or more drinks on the same occasion for a man, and 4 or more on the same occasion for a woman. All underage drinking was classified as excessive since it’s illegal.)

Taking these findings at face value, the logical conclusion is that the most sensible policies to reduce the costs of excessive alcohol consumption would target binge drinkers and underage drinkers. Unfortunately, the authors recommend a grab-bag of policies that would penalize anyone who consumes alcohol — not just binge drinkers and underage drinkers.

They refer the reader to the Centers for Disease Control’s “Guide to Community Preventive Services,” which endorses policies like increased alcohol taxes, limitations on days alcohol can be sold, limiting sale hours, limiting the density of retail outlets, and government ownership of retail outlets. The only policies recommended that specifically target binge drinkers or underage drinkers are electronic screening and intervention, and enhanced enforcement of laws prohibiting sales to minors.

Two other initiatives mentioned in the Community Guide that sound like they might help — enhanced enforcement of “overservice” laws and responsible beverage service training — are not recommended because an insufficient number of studies have been done to test their effectiveness. If the CDC took the principles of sound regulatory analysis seriously, it would focus more resources on researching such targeted interventions and less on advocating broad-brush alcohol control policies that penalize citizens who have done no wrong.

Most readers can probably recall a bad experience with “group punishment” in grade school, when an entire classroom or grade got blamed for the misbehavior of a few miscreants. Many of the CDC’s preferred alcohol policies constitute group punishment on a massive scale, applied to adults. A careful focus on the root causes of the problem would help government avoid punishing everyone for the misdeeds of a few.

Should Regulation Prohibit Self-Penalizing Behavior?

Last weekend, a guy ordered the “Sourtoe Cocktail” at a hotel bar in Dawson City in the Yukon.  The drink is garnished with a real (preserved) human toe. The patron downed the drink, deliberately swallowed the toe, then paid the bar a $500 fine for swallowing the toe.

sour toe

Photo credit: Philippe Morin/CBC

This is the kind of anecdote that would prompt health and safety advocates in that less-civilized country south of the border (the United States) to call for a new regulation — probably one prohibiting the use of human body parts in cocktails. In my humble opinion, the story is a good example of why it’s a waste of government’s time to regulate against behavior that carries its own penalty.

In fact, there’s a double penalty in this case. First is the yuk factor.  I wouldn’t order a drink with a toe in it, much less swallow the garish garnish.  Second is the monetary fine imposed by the bar. And the bar subsequently raised the fine to $2500, since now the establishment has to pull a backup toe out of mothballs. (Presumably that’s the one on the plate of salt in the photo.)

That double-whammy already ensures that swallowing a toe in one’s drink will be a rare occurrence. Yet there is still some risk that it will happen again; a precautionary approach would suggest that a new regulation is indeed needed unless the drink can be proven absolutely safe.

The tale of the Sourtoe Cocktail is a fanciful (but real) example of self-penalizing behavior that is (apparently) not yet prohibited by the Canadian government. The U.S. government, however, has seen fit to enact regulations prohibiting much more mundane behavior that carries its own penalty.

For example, consider energy efficiency standards for appliances used by consumers and businesses. These standards effectively ban the sale of appliances that cost more to operate because they use more electricity or gas. Energy efficiency can have environmental benefits, but in many cases, most of the benefits the government claims for energy efficiency standards come in the form of lower energy bills for the users. In other words, the decision to buy a less-efficient washing machine, furnace, or refrigerator carries its own penalty in the form of higher energy costs.

The Department of Energy’s proferred justification for these regulations is that consumers harm themselves by placing too low a value on the future energy savings. That’s a debatable point that Ted Gayer and Kip Viscusi have amply dealt with in a recent study supported by the Mercatus Cetner and published in the Journal of Regulatory Economics. My colleague Sherzod Abdukadirov listed a bunch of regulations that employ similar logic in his recent post.

Even more questionable is the regulation regarding commercial washing machines that I reviewed for the Mercatus Regulatory Report Card. The Notice of Proposed Rulemaking for this regulation seriously argued that greedy, profit-oriented businesses would leave money on the table by refusing to invest in cost-saving, energy-efficient washing machines that would generate a high rate of return due to the energy savings!

With all the ways people find to harm each other, do we really need regulators to police behavior that carries its own penalty?

Do “Indirect Effects” of Regulation Matter to Real People?

Congressional regulatory reformers recently caught criticism from advocacy groups for introducing legislation that would require federal regulatory agencies to analyze the “indirect effects” of proposed regulations. The only thing I’d criticize the reformers for is poor word choice.

The very term “indirect effects” suggests that they’re talking about something theoretical, inconsequential, and unimportant to the average citizen. But to economists, the indirect effects of a regulation are often the effects that touch the average citizen most directly.

Consider airport security, for example. The Department of Homeland Security (DHS) recently sought public comment on its decision to deploy Advanced Imaging Technology scanners instead of metal detectors at airports. The direct costs of this decision are the extra cost of the new machines, the electricity to run them, and the personnel to staff them – which airline passengers pay for via the taxes and fees on airline tickets. Those are pretty obvious costs, and DHS dutifully toted up these costs in its analysis of its proposed rule.

Less obvious but potentially more important are the other, indirect costs associated with airport security. Passengers who decline to walk through the new machines will receive additional pat-downs. This involves a cost in terms of time (which DHS acknowledges) and potentially diminished privacy and human dignity (which DHS does not discuss). The now-classic phrase “Don’t touch my junk” aptly summarizes one passenger’s reaction to an indirect effect of security regulation that touches passengers quite directly.

But that does not exhaust the list of significant, predictable, indirect effects associated with airport security regulation. The increased delays associated with enhanced, post-9/11 security measures prompted some travelers to substitute driving for flying on short trips. An article by Garrick Blalock, Vrinda Kadiyali, and Daniel H. Simon published in the November 2007 Journal of Law & Economics estimates that post-9/11 security measures cost the airline industry $1.1 billion in lost revenue in the fourth quarter of 2002. Driving is also riskier than flying. Blalock et. al. estimated that the security measures were associated with 129 additional highway deaths in the fourth quarter of 2002.

I’m all for making air travel as safe as possible, but I’d like to see it done smartly, with a minimum of hassle and a maximum of respect for the flying public who pays the bills. A full accounting of the indirect effects of airport security might just prompt policymakers to consider whether they are pursuing regulatory goals in the most sensible way possible.

Unfortunately, airport security is not an isolated example. Data from the Mercatus Center’s Regulatory Report Card reveal that for about 40 percent of the major regulations proposed by executive branch agencies between 2008 and 2012, the agencies failed to conduct any substantial analysis of costs that stem from the proposed regulation’s effects on prices or on human behavior – two classic types of indirect effects.

This won’t do. Telling federal agencies they do not need to understand the indirect effects of regulation is telling them they should proceed in willful ignorance of the effects of their decisions on real people. The reformers have a good idea here – even if it has a misleadingly boring name.