09/13/2013 05:42 EDT | Updated 11/13/2013 05:12 EST

New Coffee Policy Would Burn Small Business

A Winnipeg woman who burned herself while drinking Tim Hortons wants the Canadian government to set and enforce "safe beverage temperature rules."

If you listen carefully enough, you can hear Ralph Nader and Michael Moore hi-fiving from the other side of the border. But while this might seem like a way of slapping down "irresponsible" big businesses, it would actually give them a huge competitive advantage over smaller players. Assuming there even is a problem -- one scalded customer out of millions seems anomalous -- that type of problem can become an immense benefit for large corporations gaming the regulatory system.

Serving beverages at a reasonable temperature isn't hard. Baristas and waitresses dispense coffee and tea cups by the millions on a daily basis. Even inept bachelors are generally able to prepare their morning fix without ending up in the ER. But serving at a precise temperature is very hard. It requires an instrument. It's unlikely that federal regulators would be happy with old-school analog temperature gauges. They'd likely require the most accurate and elaborate digital instruments possible, since regulators have little regard for costs.

If beverage temperatures were regulated by the government, every coffee shop in the country could require precision temperature gauges that can measure the temperature of every single cup. Aside from the added costs, it would slow down production in coffee shops that actually make coffee from scratch, rather than dishing out standardized cups of pre-brewed machine coffee.

The real victims (aside from consumers paying higher prices) would be the artisan coffee shops that bother to serve flavourful slow-drip coffee. It's already an elaborate process, so burdening them with measuring the temperature of every single cup -- and paying for the precision instruments -- would make them even slower and more expensive relative to the purveyors of bland coffee. If anything, this would benefit chains like Tim Hortons. Large chains might not like it at first, as it would increase costs, but they could use these regulations to give themselves a leg up over their smaller competitors.

If such legislation were seriously entertained by the federal government, large chains would probably lobby against them. After all, they wouldn't want to face increased costs. But if the regulations were likely to pass, their lobbyists would work overtime to nudge legislators towards rules that would work in their favour.

At that point, they'd probably encourage more, not less stringent regulations. The more precise the required temperatures -- no matter how insignificant a few tenths of a degree might be -- the more expensive the instruments will be. Large corporations can afford to buy precision instruments and elaborate coffee machines in bulk, keeping down their prices.

Once chains have to start complying with onerous regulations, they might as well make their competitors feel even more pain. Perhaps lobbyists would take the opportunity to lobby for minimum as well as maximum temperatures, just to ensure that only heavily automated coffee processes would meet the guidelines.

Not only would requiring precision instruments to measure temperatures be more costly for the independent shop opening in the not-quite gentrified neighbourhood, but it would be anathema to their approach.

They attract customers by providing hand-crafted coffee that only those who truly love the flavour of coffee can appreciate. Once we start regulating the precise temperature of coffee, it's entirely plausible that we'll start regulating processes. Perhaps hand poured coffee's temperature wouldn't be consistent enough to meet absurdly specific temperature guidelines. Bye bye Chemex, and hello Kuerig. And prepare for routine coffee machine inspections, followed by more stringent regulations on the manufacturing end (which could favour certain manufacturers with good lobbyists, driving up prices).

This potential tacit alliance between consumer advocates and large coffee chains would be an example of the type of regulatory capture described in Bruce Yandle's classic essay Bootleggers and Baptists. According to Yandle:

"The theory's name draws on colorful tales of states' efforts to regulate alcoholic beverages by banning Sunday sales at legal outlets. Baptists fervently endorsed such actions on moral grounds. Bootleggers tolerated the actions gleefully because their effect was to limit competition."

It's not hard to see how this applies to regulating coffee temperatures. Moral crusaders lobbying for regulated beverage temperatures combined with large companies who stand to lose competition could have the same legislative effectiveness. It could be that large chains would refrain from such tactics, but the possibility is worrisome, particularly given that regulating the temperature of hot beverages wouldn't solve any widespread problems.

While it's unfortunate that the person in question has burned herself, we should not panic every time someone gets hurt. Accidents happen. That's life. Chains already do take precautions to avoid scalding customers, since attracting customers and avoiding lawsuits are pretty high priorities.

Punishing large corporations may feel great to some activists, but it won't work out as intended. Let's stick to common sense instead. Coffee isn't rocket science. Neither is tea.