3 - A Theory of Regulatory Barriers

Summary

Chapter 3 lays out the book’s central theory as well as the theory’s observable implications. It argues that powerful producers seek to use their privileged knowledge of the risks and benefits of their products (and regulators’ dependence on that knowledge) to systematically push their own out-of-patent products and those of generic sellers off the market via regulation, in favor of more expensive, patented alternatives. Producers accomplish this first by strategically revealing negative information about out-of-patent products as a means of convincing regulators that these products require stricter regulations. Second, producers support regulatory institutions that require existing products to be reevaluated under a precautionary standard, meaning that failure to prove an existing product is safe leads to the assumption it is dangerous. These precautionary institutions help innovative producers eliminate out-of-patent products more systematically, allowing them to acquire stricter standards not via the provision of damaging information, which carries some reputational risks, but through the withholding of favorable information. This chapter also lays out expectations for where we might expect these precautionary institutions to be adopted, given the distribution of preferences across countries, and it shows why such precautionary institutions should tend to be supported by developed countries and opposed by developing ones. Finally, the chapter argues that because international standard-setters ought to be susceptible to the same sorts of information problems as domestic regulators, and given the distribution of national power within these organizations, we can expect international standard-setters to replicate the precautionary institutional preferences of their wealthier members. We can additionally expect this to create the same tendency on the part of international standard-setters to arbitrarily impose stricter standards on more affordable products, despite the fact that this creates trade barriers that disadvantage poorer members and that directly conflict with these standard-setters’ stated mission.