It is true that the government had implemented regulations that classified various low-risk childhood pickup games in the same category as archery or rock climbing. But the category was not a restriction on individual choice, but rather a way of determining if an entity sponsoring youth recreation needs to meet the permitting and other requirements that are imposed on outdoor youth camps that provide certain hazardous activities. The apparent concern was that some organizations that offered youth recreation (which are referred to as indoor camps in most stories, though it sounds like the rules applied to less formal operations, like community rec centers) were skirting the rules, and so there was need for a clear definition of when certain rules apply. Put that way, it does not seem so egregious.
After all, it is reasonable to not allow a drop-in rec center to set up an archery course or teach BMX stunt riding to young children on the basis of, say, one of the 18-year-old summer employees at the facility being an aficionado of the activity and thinking he can teach it. Yes, sure, parents need to take responsibility and all that, but I think even the libertarians among us can agree that simply forbidding kids from stumbling into certain situations are reasonable. Parents are responsible for long-term issues like bad eating habits, but they cannot know what is happening every minute.
So some rule makes sense, and the problem came in the details of New York’s regulation. It seems quite likely that some low-level apparatchik was assigned the task of making a list of the dangerous activities that triggered the regulation, and just went in a dumb direction with it. Then the regulatory agency was pressed to get a rule implemented in time. It does not really have the capacity for critical pausing and reality-checks about what its employees are doing, since it has barely enough capacity to meet its various mandates in any way. So the silly rules were implemented, only to trigger a backlash when a member of the legislature received complaints and took on the cause, resulting in the regulators belatedly realizing that someone in their house had done something really dumb, and backing off on it. That is my theory of what happened anyway, a pretty common story. The news reporters did not seem to have ferreted out the actual story – an activity that many of them are quite good at, by the way (as opposed to them not being good at reporting on scientific research, the usual theme of this series) – but it will probably come out sometime and get reported on page 20 of a few local newspapers.
A closer look at some of the more in depth stories reveals more. The impetus for the law seemed not to be any legitimate source of worry – nor even a single tragic event, the usual motivator for overly-cautious rules. Rather, it was the cause of so much regulation: One set of businesses is trying to use government to give them an advantage over another set of businesses. That is, the traditional summer camp operations that offer genuinely dangerous activities were clearly subject to existing licensing and other requirements, so they lobbied that the new requirements be imposed on their competitors that run indoor day camps (which generally did not offer the same dangerous activities, but might have included some slightly hazardous outdoor play) to force them to deal with the same burdens. Given this observation, it is possible that whoever designed the details of the regulation was not actually so stupid as to think that freeze tag and rock climbing belonged on the same list, but rather was the pocket of Big Camp (yes, really – the new regulation was apparently pushed by the New York Camp Directors Association).
As for the activities themselves, it was an amusing list. (Part of the amusement came from realizing that not everyone knows what all these games are, even in America. Was mine really the last generation to play freeze tag on the playground? How can people not know that game?!) Some activities make sense to regulate like rock-climbing and archery. But it is silly to lump in tag and whiffle ball (which is like baseball but with a hollow plastic bat an a lightweight plastic ball), which are probably less dangerous than kids just engaging in free-play. (Are kids allowed to do free play anymore?) Falling in between, though not treated any differently from freeze tag are some activities like dodge ball and red rover (the kids form a human chain, locking hands or arms, and another kid smashes into them trying to break the chain – or bones) that perhaps could use a little discouraging, if not more. These activities are nastily violent and have as their core feature potentially damaging trauma. American football falls into that category too. It would be hard to argue against a regulation that actually prohibited organizing these activities for kids who are too young to make decisions about their own health. Kickball, on the other hand, is quite tame as sports go. And I will not go into activities that are more subtly dangerous like tug-of-war and see-saws – you get my point.
Thinking about the details a little more reveals another problem, one that picks up on the classic reasons to be suspicious of regulators as a matter of habit. The regulation in question focused on requiring the organizations to pay a fee to the government to get a permit, which is the side of regulation that almost seems like it is designed to make people distrust and hate government. Obviously this alone would make a minimal contribution to protecting the kiddies. The only other requirement was having medical staff on site, which is reasonable for a summer camp with a few hundred kids in residence, and obviously prohibitive for a small-town recreation center with a $200/day budget and a few dozen kids dropping in.
Perhaps most interesting was that the one rule that prompted the funny news reports was not really the problem; it is the entire set of regulations that is misguided. They were not too strict nor too permissive; the were completely in the wrong direction. Having medical staff on hand makes sense if you have the kids playing American football, but again, they really should not be doing that. But for a rock climbing wall or archery range, what is needed is adequate supervision by adequately trained staff. With that in place, the activity is less hazardous than basketball or just running around the neighborhood. No medical staff boondoggle is required. But the problem is that it is impossible to write a regulation that describes what constitutes adequate personnel, skill, and equipment for a supervised climbing wall. Those of us familiar with the activity know it when we see it, but if government decides to write down rules, such common sense and folk knowledge gets pushed out. Which is why the useful rules for climbing gyms were created by agreement of those who do that activity, not by outside regulators.
At the same time, a good case could be made not for just getting rid of the rules, but imposing some limits on truly dangerous activities. For those who support the idea of libertarian paternalism, no banning would be necessary: Perhaps we should just require parents to sign activity-specific permission slips, like they presumably do for rock climbing or football, before people supervising children can assign them to play red rover. Yes, drawing the line is difficult. But it already exists, so we might as well get it in roughly the right place. Keep in mind that saying a regulation “goes too far” implies that some other regulation, rather than no regulation at all, would be just right.
To bring this back to a few general lessons about the health news, and more specifically making sense of debates about health regulations: It is easy to think of government as being some thoughtful monolithic actor with enormous resources behind its every move. But most of the time the details, as initially implemented, are the random result of a few people’s disorganized decisions. Mature regulations are not quite so laughable because the rules evolve by natural selection over time to get rid of the worst of the rough edges. Many of my readers are familiar with the recent FDA decision to declare certain smokeless tobacco products to not be smokeless tobacco products, and thus not subject to FDA tobacco regulations. There was a huge outpouring of consternation about the absurdity of this, as well as attempts to figure out its deep meaning, based on the assumption that the decision was carefully thought out, intentional in all its implications, and permanent, though it was probably none of those.
Additionally, it is useful to realize that many proposed actions that seem absolutely silly in isolation were the product of some reasonable goal combined with someone just not having the chops to implement it well. But that offers no excuse for them not backing off of dumb ideas once someone takes a closer look and calls them on it. Finally, to get really cynical, most (not all) health regulations are designed to benefit an organized special interest group, not the general public. In light of that, we should actually be pleasantly amazed that our regulatory systems turn out as good as they are, and that we have only as many unhealthful health regulations as we do.