Explainer Episode 27 – Occupational Regulations in the Beauty Industry

In this episode, Anastasia P. Boden interviews Daniel Greenberg about his new article, “Regulating Glamour: A Quantitative Analysis of the Health and Safety Training of Appearance Professionals.”

Transcript

Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

[Music and Narration]

 

Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.

 

Jack Derwin:  Hello and welcome to the Regulatory Transparency Project’s Explainer podcast part of RTP’s Fourth Branch podcast series. My name is Jack Derwin and I’m Assistant Director of RTP. Today, I’m excited to be joined by Daniel Greenberg and Anastasia Boden to discuss occupational regulation in the beauty industry.

 

Dan Greenberg is president of the Advance Arkansas Institute, a think tank committed to advancing public policy based on free markets, individual liberty, unlimited government. Previously, Dan served in the Arkansas House of Representatives from 2006 to 2011.

 

Anastasia Boden, our host today, is an attorney at the Pacific Legal Foundation’s Economic Liberty Project where much of her work involves challenging laws and regulation that threaten competition and free speech.

 

Thank you both for joining us today.

 

Anastasia Boden:  Thanks, Jack.  It’s wonderful to be here to talk about two of my very favorite things:  Glamour and the beautiful, precious constitutional right of individuals to earn a living in the profession of their choice. And, of course, one of the biggest threats to people’s ability to earn a living right now is occupational licensure. Licenses are hard to get, they’re expensive, they require a ton of training. 

 

And, so, I thought we’d start out, Dan, by asking you very generally why are professions licensed?

 

Daniel Greenberg:  Well, I guess there are really two reasons that come to mind. And I’m reminded of something that our host just brought up a few seconds ago. About 15 years ago, back when I was a state legislator, I got a phone call from someone who had a very important issue to discuss with me. He went into great detail about the menace of unregulated and unlicensed burglar alarm installers.

 

And he was extremely well informed on this topic and he went into great detail explaining to me the immense dangers of what might happen if you had these fly-by-night burglar alarm installers.  The dangers to consumers, the dangers to public safety and so on and so forth. And I said “Well, you seem very interested in this and you seem to know a lot about it. Have you had experience with unlicensed burglar alarm installers?” He said “No, no. I’m a certified burglar alarm installer. I’m just very concerned about the dangers to the public welfare of these other people.”  

 

And I said “I see” because what that illustrated to me was there’s two reasons that people want to see licensing. One of the reasons is often explained in terms of public safety, public interest, consumer welfare. And sometimes we suspect that there’s a second class of reasons. And that second class of reasons is, sort of, summed up by economic self-interest and lobbying special interest groups of policy makers so as to reduce or, in some respects, eliminate competition.

 

And, so, what I think we see is sometimes we see that there are public reasons for occupational licensing and there are private and self-interested and relatively maligned reasons for occupational licensing. 

 

Anastasia Boden:  It seems to me that that first justification that you talk about which is legitimate, public health and safety, is undermined by the explosion in occupational licensure recently. Where licensure has been extended not just to doctors and lawyers and things that we traditionally think of but as you brought up burglar alarm installers, or in Louisiana there’s forestry. Or there was a proposed law to regulate dog walkers in New York City. And here in California we have upholsterers and so on and so forth.

 

And I think some people have some skepticism when it comes to beauty professions, as well. What’s the rationale when it comes to licensing beauty professions like barbers, manicurists, and cosmetologists?

 

Daniel Greenberg:  Well, there’s a whole galaxy of reasons that people give for these things. But let me just focus on a few of them. I think the first is consumer protection, protection of safety and health. And there are other reasons having to do with making sure that the professional, like, the cosmetologist or the barber is sufficiently skilled in terms of creating and transmitting beauty onto his or her client. There are reasons having to do with certification that the idea is that we want to protect these sharks from hiring people with insufficient credentials.

 

And, so, I think some of these reasons are stronger than others. And, in particular, I think it helps to take these reasons or justifications one by one. Can we talk just a little bit about public safety and protection of the consumer and health and so forth with respect to cosmetologists and barbers?

 

Anastasia Boden:  Well, let’s hear it because, you know, I started out my day by practicing unlicensed cosmetology and blow drying my own hair. So tell me about why that’s dangerous to the public.

 

Daniel Greenberg:  So, I mean, I think it’s fair to say that it’s definitely in the public interest to make sure that cosmetologists and barbers know how to sharpen and sterilize and wield their tools. But if you look at barber and cosmetology training, I think you’re going to see in the statutes — and this is set out with respect to what barber schools and cosmetology schools have to teach. I think you’re going to see in these statutes and regulations that a great deal of the training that these professionals have to receive, by law, is completely unrelated to health and safety reasons.

 

On the contrary, a lot of it seems devoted to matters like learning the history of various hair styles. And I think it’s fine for professionals to learn more about makeup and color theory and the beautification of finger nails. But the health and safety portions of this type of training is often pretty minor. And, so, when we talk about public safety and public interest, I think it’s helpful to separate the training that’s genuinely focused on the health and safety of the client from the training that’s focused more on the beautification of the client.

 

And, so, there are certain types of education. There are certain areas of the curriculum that are more focused on health and safety than others. 

 

Anastasia Boden:  Yeah. And you’ve really dug into this in your recent paper and, I believe, you studies 38 jurisdictions with regards to barbers, cosmetologists, and manicurists. And what exactly did you find, specifically, when it came to the training that’s required for prospective beauty professionals?

 

Daniel Greenberg:  What I found was there are 38 jurisdictions where I thought that you could really measure the health and safety requirements in the cosmetology and barber curriculum. And with respect to those 38 jurisdictions, I found that somewhere between 25 and 26 percent of the training that these prospective professionals have to take is devoted to health and safety.

 

On average, barbers have to undergo about 1,350 hours of training. On average, cosmetologists have to undergo just under 1,500 hours of training. Those are national figures. And in each case, the percentage of health and safety training is between 25 and 26 percent. And there’s a lot of training that I think really has nothing to do with health and safety that’s required in some states.

 

In South Carolina, cosmetologists have to take 50 hours of training in public relations and salesmanship and psychology. In my home state of Arkansas, cosmetologists have to endure 50 hours of training in courtesy and neatness and professional attitude. Oklahoma has 175 hour requirement for barber training in salesmanship, job search, shop management, history of barbering, and professional image. And, so, the relationship of this type of training to health and safety or consumer welfare is pretty mysterious.

 

Anastasia Boden:  Yeah. So I guess what you’re saying is to the extent that there are real — there is a real health and safety threat to unlicensed cosmetology.  You know, I was joking about blow drying my hair earlier. But, certainly, when you’re dying people’s hair with chemicals and what not, there can be a concern.

 

Licensure isn’t actually related to that interest. And I think it is pretty shocking when you talk about all the surprising things that prospective beauty professionals have to learn. But might that provide any other benefits? Does the state contend that this results in better hairdos or better courtesy? And is that legitimate?

 

Daniel Greenberg:  Well, so here we get into the fraught question of — this is, sort of, a large philosophical question of whether there are absolute standards of beauty that cosmetologists need to learn and to be trained in and to be proficient in. Or whether, alternatively, that there’s no accounting for tastes, as the old saying goes. And that we don’t really need to worry about a professional or government mark of quality with respect to training in these crafts. Because, as the old joke goes, what’s the difference between a good haircut and a bad haircut? The answer is two weeks.

 

It’s often the case that if you get, to be blunt, what you think of as an ugly haircut or an ugly procedure there are really no health benefits or deficits that are involved, at all. And, presumably, if you run into a bad practitioner — a low quality practitioner — there are better ways to solve this problem than to have everyone be licensed in these non-health and safety areas.

 

And, more precisely, I take it many of us have had the experience of trying to figure out where to get a good haircut in a city or town that you’ve just moved to. The way you handle these — the way you answer these questions is word of mouth. And often word of mouth eliminates low quality practitioners in a number of fields and directs consumers to relatively skilled practitioners.

 

Anastasia Boden:  Yeah. And, of course, that’s been spurred on by the creation of online websites like Yelp and whatnot where it’s relatively easy to access information like that. But I also found it interesting in your article, you point out that we don’t traditionally think of bad haircuts as a harm.

 

Daniel Greenberg:  Right.

 

Anastasia Boden:  Because you can’t, for example, walk into court — I’ve seen a lot of frivolous lawsuits in my life, but I’ve certainly never seen somebody walk into court and try to sue somebody else because they were dissatisfied with the way that they look after a bad haircut so — 

 

Daniel Greenberg:  Well, I think that’s exactly right. And I want to be clear about this because I think it’s worth underscoring that not all the training has to do with esthetic qualities. Not all the training has to do with beauty. I think that the health and safety aspects of learning how to give a proficient haircut are fairly minor. I think that the health and safety aspects that people need to be trained in with respect to curling or uncurling hair with respect to chemical treatments are relatively major. If you actually study cosmetology, you will find that if you apply certain types of hair relaxation chemicals in a negligent way, then the hair will begin to smoke or even melt.

 

And, so, it’s really crucial that you’re trained in some — some health and safety aspects. It’s really crucial that you know what to do when you’re working with chemicals and hot wax. It’s crucial that you understand procedures of sterilization. But, again, what I think needs to be underscored is that this type of training, as far as I can tell, is a relatively small percentage of the beauty curriculum or the barber curriculum.

 

I guess I would also — there’s one thing that occurs to me that I suppose I ought to add which is, in addition to my discovery that 25 or 26 percent nationally of the barber and cosmetology curriculum is devoted to health and safety, the percentage for manicurists or nail technicians is much larger. It’s around 40 percent. And I think it’s fair to say that if you’re really concerned about health problems and health-related training, you really need to focus on — or think about sterilization and dangers that come from lack of sterilization and related safety issues in nail salons.

 

I think that’s why there’s a much larger percentage of health and safety training for manicurists. That is actually a real problem because you can — if you don’t run your nail salon right you can transmit infections. So, again, I just want to underscore that the chief concern here is not so much that it’s all focused on beauty. My chief concern is that a lot of it is focused on beauty and I think that there’s a weak or non-existent justification for licensing people to get trained in beauty crafts or beauty technology or whatever you would call it.

 

Anastasia Boden:  Yeah. I understand that. I think that’s really interesting because in my line of work that conclusion that there’s a mismatch between legitimate health and safety ends and the actual licensure requirements, that opens up some of these laws to constitutional lawsuits. And we’ve seen in other states hair braiders bring lawsuits saying that the cosmetology requirements don’t actually teach hair braiding.

 

And, so, even where we accept that there’s a legitimate health and safety — and it’s really important to point out that really broad mismatch where it exists. And its correlation where it exists.

 

Daniel Greenberg:  Yes. And, of course, there are really all sorts of mismatches in the particular sector of training that we’re talking about here. There was a really fascinating article in the New York Times about two years ago about the practices in, I believe, Iowa. And one of the practices in cosmetology schools is that you offer free or cut rate services that are performed by cosmetology students. And that’s part of the education and training that cosmetology students undergo.

 

And, so, the way that it works is the cosmetology students come in and they wait around for customers to come in so that they can style their hair or do their nails or whatever. And if nobody comes in — if the customers don’t come in, then it’s just — if you see nobody over the course of an eight hour day, it’s counted as eight hours of training. It’s counted as training whether customers show up or not.

 

And, so, that strikes me as having essentially zero value for education in safety or education in beautification. And the estimate that one of the students gave of the time that they spent in training which is to say waiting for people to come around who didn’t, the estimate that one of the students gave was at 50 percent. So if they, for instance, had a hundred hours of required training and they’re only working 50 percent — they’re only working 50 percent of the time, they still get their full hours credit.

 

So they spend a lot of time just to fill up their hours. They spend a lot of time just waiting around for customers to come in. Customers don’t come in. And, so, it’s a system that measures number of hours consumed but really doesn’t measure learning anything. It doesn’t measure having any consequences in any strong way.

 

Anastasia Boden:  Now, when I go into court to challenge occupational licensing laws, the burden is on the plaintiff to negate every conceivable justification. So I think it’s important, maybe, to comment on some of the other justifications we’ll see. Because they don’t just say health and safety. Sometimes they say the other things that we’ve talked about even when they’re weak.

 

Daniel Greenberg:  Yeah.

 

Anastasia Boden:  What about also the contention that the employers, themselves, like licensure because it allows them to be able to tell who to hire. And also some of the professionals themselves justify these laws on the basis that it inflates their wages. What do you make of the legitimacy of these justifications?

 

Daniel Greenberg:  Right. So you would know better than I do about the constitutional standing of these types of justifications. But I guess I would say with respect to the justification of licensing that it raises professionals’ wages through scarcity or that it makes salon owners’ jobs easier because it serves as a kind of, quasi-certification so they know who to hire. It seems to me that this is really, kind of, not a benefit to the public. It seems to me that this is really something like a subsidy to a private interest. Either the salon owner or the professionals themselves.

 

And, so, I see a private interest justification. I see that there might be certain members of the populations who would like it, but I don’t think that it’s a public interest justification, at all. It doesn’t see to help the public, at all. It only helps a small number of people who are, of course, members of the public. 

 

But I think I would have to ask you as to whether a private justification is on the same constitutional ground as a public justification. Whether those two types of arguments are of the same strength? Or I would hope that they wouldn’t be.

 

Anastasia Boden:  Yeah, well I’m with you on that, Dan. I hope and believe that they are not on the same footing. But what’s really interesting about that is unbelievably in some circuits, that is some appellate jurisdictions, those circuit courts have held that burdening some people’s right to earn a living in order to protect others from competition is a perfectly legitimate government interest. And that that’s just politics and that’s perfectly acceptable. And I would argue, no that’s irrational. That violates due process. When you restrict people’s liberty you have to be providing a benefit generally. But that is a circuit split that is very ripe for the Supreme Court to comment on, and it’s part of what we do in my litigation.

 

So it’s a good question to ask because I think it’s very important and something the Supreme Court eventually needs to resolve.

 

Daniel Greenberg:  Yeah, you know, if I’m remembering correctly there was some rhetoric in some of these coffin manufacturer cases where the coffin manufacturers were arguing that they ought to have a privilege and in some circuits — this was explained by the courts as saying well, essentially, if you give certain special interests a privilege this kind of lobbying and political behavior is as American as apple pie. To, essentially, give people a privilege that other people don’t have.

 

Well, I guess it’s as American as apple pie in the same sense as, I don’t know, armed robbery is as American as apple pie. And it happens a lot in America. But I think it is hard to justify, essentially, unequal treatment and giving some people through government something like a property right that other people just don’t have. It seems to me that that’s very difficult to make a straight faced constitutional argument for.

 

Anastasia Boden:  Yeah. Absolutely. And that’s why research like yours is so important and I wish I was surprised when I read it, but I’m not. Because you do see things like laws that you can sell coffins if you’re licensed with all of these requirements and the requirements have nothing to do with just simply selling a coffin. Or in Louisiana where you’re not even required to be buried in a coffin, at all. Or, you know, these teeth whitening cases where only dentists can do the simple teeth whitening. This is a common thing that we see in our work. 

 

But, you know, with regards to your paper some of it is academic and that’s well and good. But, I think, for most people it would be interesting to talk about the real-world effects. What are the real-world effects of this mismatch and the onerous licensing requirements on the practitioners themselves? What’s going to be the result?

 

Daniel Greenberg:  So, in my view, when we look at what happens in cosmetology education today, it creates a kind of raw injustice. It creates a set of terrible results. You have people who are taking out significant loans to spend 1,500 hours, on average, of cosmetology education to get a job that on average pays something like 27,000, $28,000 a year. That’s the average wage for cosmetologists or at least it was about one or two years ago.

 

And that extra year of forgone income combined with the kind of debt burden that people are taking resulting in compensation that’s not especially high, when you look at the national picture, it seems to me that there’s a kind of waste of resources and a set of inefficiencies part of which taxpayers bear through these loan systems and loan guarantees. It seems to me, we are really offering cosmetology students not such a great deal. And I am somewhat skeptical that the system right now really serves even their interests.

 

And what I would like to see is — or I’d like to see people learning from the experience and learning from the structure that my paper lays out. I’d like to see policy makers looking at this and saying hey, you know, even assuming that we want to protect health and safety, if we look at the health and safety classes and schemes and structures that are currently set up it seems like we could cut the required education by something like 75 percent. And we wouldn’t suffer any drop at all in health and safety education. We’d have, essentially, no health and safety consequences even if we assume that all this health and safety education actually results in improved health and safety.

 

If we could substantially reduce the number of hours that was required in order to get these licenses, it seems to me that you would have great, strong economic consequences and reduce the forgone income and help people get a job without placing all these unwarranted and unnecessary burdens on them.

 

Anastasia Boden:  Well, the good news, Dan is that occupational licensure is kind of a hot topic in the policy world. I mean, I use that term loosely “hot topic.” It’s a hot topic in our geeky policy world.

 

Daniel Greenberg:  Sad but true.  Yes.

 

Anastasia Boden:  No offense because I one of those geeks.

 

Daniel Greenberg:  Yeah.

 

Anastasia Boden:  But it’s a bipartisan topic, too. And, so, I’m wondering if that sort of widespread support has manifested itself in any changes in state law?

 

Daniel Greenberg:  Well, over the last couple of years, Texas and Vermont have reduced their training hours that are required for cosmetologists from 1,500 to 1,000. That makes those two states, Texas and Vermont, some of the least burdensome licensing-requiring states in the Nation. Vermont upped the ante by creating the Nation’s least burdensome training requirements for barbers, 750 hours.

 

Florida now requires people who are trained as barbers only to be trained in sanitation, safety and state law. Although — this I found interesting. I may be one of the very few people in the world who finds this stuff interesting. But it seems to me that if you actually look at the Florida regulations, they are not quite so strict with respect to following this law because they seem to cover things having to do with matters way outside the orbit of sanitation, safety and state law, even though the law does not permit them to do so.

 

But, as a general matter, I do think that state policy makers are beginning to cut away at some of these things, but there is much more work to be done.

 

Anastasia Boden:  Well, unless you have anything to add, I just want to thank everyone for giving me an opportunity — or an excuse to dress up and blow dry my hair for the theme of glamour and economic liberty and to do this podcast today. But, Dan, unless you have anything else to add I think we’ve covered a lot.

 

Daniel Greenberg:  I am very grateful to The Federal Society for the wonderful service it does and helping to educate people about the very important issues of licensing overreach and economic liberty.

 

Jack Derwin:  Well, thank you both so much for joining the podcast today to discuss such an important topic.

 

And thank you to our audience for tuning to this episode of RTP’s Explainer Podcast. You can subscribe to the podcast on any major podcast platform and check out our website regproject.org or social media accounts @fedsocrtp to learn more.  Thank you.

 

[Music]

 

Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.

 

[Music]

 

This has been a FedSoc audio production.

Daniel Greenberg

President

American Federalism Project


Anastasia P. Boden

Senior Attorney, Economic Liberty Project

Pacific Legal Foundation


State & Local

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at rtp@regproject.org.

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