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Policy Tragedy and the Emergence of Regulation: The Food, Drug, and Cosmetic Act of 1938

It is now a commonplace assertion among scholars of regulation to say that new regulatory statutes follow “crises,” “tragedies,” or “scandals.” The content and form of these critical events varies considerably. They include acts of journalism or research such as the publication of the Nader Report (which purportedly led to new federal automobile safety regulations) or Upton Sinclair's The Jungle (which eased the path for the Pure Food and Drugs Act of 1906). They include instantaneous disasters such as the Union Carbide gas leak in Bhopal, India, as well as slowly materializing epidemics like the thousands of horrific birth defects that resulted from widespread use of the sedative thalidomide in Europe and Australia in the late 1950s. As Lawrence Rothenberg describes this argument, it amounts to a meta-narrative of the origins of regulation, an alternative to capture theory. In the tragedy narrative of regulation, “public opinion becomes energized by some dramatic event or condition illustrating the pitfalls of a market's unobstructed operation; the outcry spurs elected officials to promulgate governmental regulation.” This story, as he notes, is at least as old as the work of Marver Bernstein and Anthony Downs.