Protective Legislation v. Our Competitive System: The Dilemma and the Role of the Trade Association

• Published date: 01 June 1973
• Date: 01 June 1973
• Author: Mark R. Joelson
• DOI: 10.1177/0003603X7301800207
• Subject Matter: Article

PROTE'CTIVE

LEGISLATION

v.OUR

CO'MPETITIVE

SYSTEM:

THE DILEMMA AND THE

ROLE

OF

THE

TRADE

ASSOCIATION

by

MARK

R. J

OELSON·

There is no question today

that

the Congress

and

industry

itself

are

lavishing much interest on all of us in

our

capacity

as the little

man:

the shopping housewife, the motorist, the

working man, the

air

breather.

Itis

now an article of

faith-

quite

rightly-that

the individual

has

many rights

that

must

be protected from encroachment by

our

industrialized society,

and

so the programs have been coming off the legislative

and

regulatory assembly lines in

great

nnmbers.

In

the environ-

mental

area

alone, we have, along with the National Environ-

mental Policy Act,1 the Clean

Air

Act," the

Federal

Water

Pollution Control Act," the Noise Control Act,4 the

Federal

Environmental Pesticide Control Act,s

and

the Wilderness

Act.6We also have, among other enactments, the Occupa-

tional

Safety

and

Health

Act," the Flammable Fabrics Act,8

the National Traffic and Motor Vehicle Safety Act," the

Consumer Product

Safety

Act,IO

and the

Fair

Packaging

and

Labeling

Act,11

as well as extensive regulation in the food

and

drug

area.

•Arent, Fox, Kintner, Plotkin &Kahn, Washington, D. O.

142 U.S.C. §4321et seq.

242 U.S.C. §1857 et seq.

S33 U.S.C. §1l51 et seq.

442 U.S.C. §490J et seq.

S7 U.S.C. §136 et seq.

616 U.S.C. §1l31 et seq.

T29 U.S.C. §651 et seq.

815 U.S.C. §1l91 et seq.

915 U.S.C. §1381 et seq.

10

5 U.S.C. §2051 et seq.

11

15 U.S.C. §1451 et seq.

255

256

THE

ANTITRUST

BULLETIN

It

is now widely acknowledged

that

this protective regu-

lation will not come cheaply.

Industry

will have to contend

with higher costs and with controls affecting

its

basic eon-

eerns such as production, working conditions, impact on the

environment, warranties, and advertising. We as individuals

will also pay aprice for our added measure of protection. We

will undoubtedly be called on to

bear

much of the increased

expense of the productive process, and we will also have to

learn to live daily with such things as

car

pools

(or

even gas-

oline rationing) and products whose performance character-

istics

are

reduced by safety, emission, or noise control fea-

tures. These

are

prices, "trade-offs," of which we

are

becom-

ing

uncomfortably aware.

There is, however, another price

that

we may have to

pay

as a nation of which we

are

not sufficiently aware and on

which attention must be focused: a subtle

but

important

threat

to our fundamental competitive system is posed by the

anticompetitive (albeit unintended) by-products of this per-

vasive regulation. Will the cost of

our

protective legislation

include a greatly increased concentration in American indus-

try, through the enhancement of oligopoly and the extinction

of small business in many more walks of

life'

That

would be

asteep price indeed to pay and, while solutions

are

not

readily apparent, we can no longer ignore the question.

It

is

aquestion of profound importance to

trade

associations and

trade

associations are, in turn, of

great

importance in the

finding of workable approaches to the problem.

In

this sphere, there

are

challenges and pitfalls

for

trade

associations all the way down the line. The

first

challenge

for

an association in representing' its

constituency-the

firms

in

its

industry, both large and

small-may

be to work

at

the

legislative stage to assure

that

the framework of the legisla-

tion is sound from the competitive point of view.

In

most

contexts, however, the critical point will

arrive

at

the regu-

latory, i.e. implementation, stage.

It

is

at

this level

that

the

"crunch" is likely to come.