California just passed a statewide prohibition on single-use plastic bags at grocery and convenience stores. While this is the first such statewide measure, it comes on the heels of similar bans in many cities and counties throughout the country, and it will likely not be long before such bans are pushed in Idaho.
These kinds of measures deprive businesses and their customers of the ability to make decisions for themselves as to what kinds of products and services they want to offer and receive. They are also part of a larger movement, through which local regulations make doing business more expensive and sometimes regulate certain businesses out of existence—not because their products are not desired, but rather because they do not have the ear of the regulators to the same degree as their competitors or detractors.
While sold as measures to protect health, safety or some other public good, these measures are often simply an attempt to cater to special interests and engage in economic protectionism.
There is an opportunity, however, for Idaho to employ legislation to restrict regulation rather than promote it. As we saw with Idaho’s state pre-emption of firearms regulation (I.C. 18-3302J), the state can set a ceiling for regulation above which cities, counties and local governments cannot go. In the case of firearms, we are seeing citizens contemplate legal action against those who overstep their authority and regulate above and beyond the boundaries set by the pre-emption statute.
There are a number of companies promoting disruptive innovations that shake up the status quo and challenge powerful existing business interests. Some of these companies include Uber and Lyft (which provide peer-to-peer transportation services) and AirBnB (which provides peer-to-peer short-term housing rental services). While these technology-driven models have been widely celebrated by their service providers and customers alike, their competitors have rushed to have such businesses regulated out of existence.
The resulting flurry of legislative and regulatory schemes has met with mixed results. Some have never been implemented due to a public outcry from customers already using the services, while others have been implemented for the protection of the entrenched interests. Even some of the successful regulatory efforts, however, are now facing legal challenges.
Anti-regulation pre-emption provides an opportunity for the Idaho Legislature to strike a balance. It can permit the establishment of certain minimal health and safety requirements (such as insurance requirements for peer-to-peer drivers), while preventing more severe anti-competitive restrictions from being implemented. Doing so would eliminate the cronyism without discouraging innovation.
After all, we don’t want to be California.
