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The New Mercantilism, 2: Gagging physicians

Well, this is bad. An article on Truthout details how a new Pennsylvania law makes it difficult for us to even know what chemicals frackers are using, much less what they’re doing to us, because they’re trade secrets. Check out how difficult it is to get, and especially to share, information that may be needed for medical reasons. From the bill itself:

A vendor, service company or operator shall identify the specific identity and amount of any chemicals claimed to be a trade secret or confidential proprietary information to any health professional who requests the information in writing if the health professional executes a confidentiality agreement and provides a written statement of need for the information indicating all of the following:

(i) The information is needed for the purpose of diagnosis or treatment of an individual.

(ii) The individual being diagnosed or treated may have been exposed to a hazardous chemical.

(iii) Knowledge of information will assist in the diagnosis or treatment of an individual.

If a health professional determines that a medical emergency exists and the specific identity and amount of any chemicals claimed to be a trade secret or confidential proprietary information are necessary for emergency treatment, the vendor, service provider or operator shall immediately disclose the information to the health professional upon a verbal acknowledgment by the health professional that the information may not be used for purposes other than the health needs asserted and that the health professional shall maintain the information as confidential. The vendor, service provider or operator may request, and the health professional shall provide upon request, a written statement of need and a confidentiality agreement from the health professional as soon as circumstances permit, in conformance with regulations promulgated under this chapter.

There’s really no way to interpret this except:

  • If you’re a health care professional, you can get a list of the chemicals a patient has been exposed to, if the patient is already sick, if you’re alert enough to suspect that he or she has been exposed, and if you’re willing to jump through hoops.
  • You can use that information to diagnose and treat your patient, but not to, for instance, warn other physicians, or the public, to be on the lookout for signs of exposure to this chemical, because hey, that’s a trade secret.

The focus on the “proper diagnosis and treatment of an individual” is worrisome too–the thing is, any cancer, any bizarre health problem, can happen once in a while. If the rate of a rare cancer doubles, individual physicians, treating individual patients, might not notice anything is wrong if it’s the difference between seeing one patient with it and seeing two. It seems to me like a public health professional, seeing a cluster of cancers, wouldn’t be able to get information about what those people were exposed to without getting one of their individual doctors to request it.

Worse, the public health professional wouldn’t be able to look proactively–for instance, to see what happens in communities that have been exposed to chemical X–because she wouldn’t be able to tell which communities had been exposed to which agents until people start getting sick.

I’m sure that this was put through by people who preach free markets, but it resembles a true free market–which requires people to be informed about the consequences of the choices that they make–not at all. In a true free market, people might say, hey, we want cheaper gas and we’re willing to take this known risk to our health in order to get it. Which is not to say that’s the ideal, but that’s how a free market is supposed to work.

And when the coercive power of the state is used to maintain our ability to make informed decisions (like with mandatory food labeling), the result is a market that works better.

But using state power to prevent us from even knowing the risks we’re taking, so we have no practical choice but to buy what people want to sell us, resembles nothing so much as mercantilism. Not a free market, and certainly not democracy. I just can’t stop quoting Adam Smith:

It is unnecessary, I imagine, to observe, how contrary such regulations are to the boasted liberty of the subject, of which we affect to be so very jealous; but which, in this case, is so plainly sacrificed to the futile interests of our merchants and manufacturers.

And for that matter:

It is the industry which is carried on for the benefit of the rich and powerful, that is principally encouraged by our mercantile system. That which is carried out for the benefit of the poor and the indigent, is too often, either neglected or oppressed.


1 comment to The New Mercantilism, 2: Gagging physicians

  • All trade secrets laws are ways for companies to be less competitive, by definition. In a textbook free market, when people started figuring out what their chemicals were, other companies could copy it. Of course, in this case, we don’t have actual competition and a fracking formula isn’t the thing that’s going to make one company succeed over another, so they really are trying to take third parties, consumers, etc. from knowing the truth, but the point is that even if they were right about their premise they’d still be demanding the protection of the nanny state.

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