In 2015, U.S. Senator Thom Tillis of North Carolina argued that we don’t need government rules for public health in the food service industry, because the free market would protect public health and safety. As an example, he said that the government should not require Starbucks to make their employees wash their hands after they use the restroom and before they handle our food and drinks.
Tillis stated “I don’t have any problem with Starbucks if they choose to opt out of this policy as long as they post a sign that says we don’t require our employees to wash their hands after leaving the restroom. The market will take care of that.” A short video of his statement  on February 3, 2015 is still available online from the Washington Post.
Tillis’ approach was based on the belief that sellers of food and beverages would still maintain high standards of health and safety, even without government rules. Supposedly, their customers would still demand high standards, and the sellers would not want to lose their customers. It was an interesting theory. However, the COVID-19 pandemic has now proven beyond any shadow of doubt that Tillis was wrong.
Since at least March of 2020, experts in public health have strongly recommended that people practice “social distancing” from other people who are not part of their household. However, many customers of bars and restaurants ignored those recommendations. They did not demand that bars or restaurants maintain high standards of health and safety, and they did not give their business to the safest establishments. Instead, many customers flocked in droves to the packed places that allowed them to ignore safety standards, such as social distancing and limits on capacity.
This created a “race to the bottom.” Those proprietors who wanted to meet safety standards lost customers, and they lost even more money than they had already lost from the pandemic.
The recommendations of experts were just that. They were non-binding guidelines, rather than legally enforceable mandates from a government authority. Later, many state and local governments issued legal mandates for bars and restaurants which could have been enforced, but their effect was limited because they often were not enforced.
As COVID-19 cases and deaths continued to increase, it eventually became clear that recommendations and unenforced rules were not sufficient to protect the public health, and neither was the invisible hand of the free market. Some officials had initially resisted imposing penalties against the owners of bars and restaurants, but later recognized that they had no alternative.
Recent legal penalties in Texas have included suspension of alcohol permits for exceeding capacity limits and not enforcing social distancing. Florida has imposed fines and shut down restaurants or bars for failure to maintain social distancing, violating rules about masks for servers, or unlawfully selling alcoholic beverages for consumption on the premises.
In Ohio, the office of Republican Governor Mike DeWine issued a statement on May 16, 2020 about businesses that were reportedly ignoring safety guidelines. According to DeWine’s office, “Those who operate their businesses while disregarding safety guidelines … are being irresponsible and need to understand that these guidelines will be enforced.” So much for leaving protection of public health and safety to the free market.
Free markets can do many important things. They can promote the efficient production and distribution of goods, encourage innovation, and create opportunities. One thing that markets cannot do, however, is protect the health and safety of the public. The COVID-19 pandemic, which has already killed more than 138,000 Americans and still counting, has clearly shown that Thom Tillis was wrong about the need for enforceable legal rules in public health.
Dean M. Harris, an attorney, retired from the faculty at UNC-Chapel Hill’s Gillings School of Global Public Health, where he taught courses on health law for more than 25 years.