Why Florida Is Passing Another Law Regulating Brazilian Butt Lifts

Plus, Texas boom, Harvard update, Biden’s “grand strategy”

How to tastefully illustrate an article about Brazilian butt lifts? Abstraction is your friend.

The flow of talent and capital from high-tax, high-regulation states like New York and California to lower-tax, lower-regulation states like Florida and Texas is a recurring theme around here.

It’s worth a reality check, though, that even the lower regulation states aren’t exactly laissez-faire libertarian paradises. A case in point: “Before concluding the 2024 legislative session, both chambers of Florida’s Legislature passed matching bills aimed at granting the Department of Health enhanced enforcement powers over physician offices conducting specific liposuction or gluteal fat grafting procedures, commonly referred to as Brazilian butt lifts. All that’s needed now is approval from Florida Gov. Ron DeSantis,” the Newhouse family’s Gulflive.com website reports.

That’d be at least the third new law regulating cosmetic surgery in the state in the past 5 years, and comes on top of at least two separate actions by the Florida Board of Medicine, a government agency.

The article by Gulflive’s Jennifer Torres gives a nice job of providing background. “In 2022, the Florida Board of Medicine issued an emergency rule limiting Brazilian butt lift surgeries to three per day per surgeon to avoid fatigue,” she writes. “And this isn’t the first time the Florida Legislature has taken steps to protect patients who undergo the procedure. The state’s first plastic surgery bill, HB 1471, went into effect July 1, 2023, mandating that physicians conducting gluteal fat grafting must utilize ultrasound guidance to ensure fat is only being injected into the subcutaneous space and not any deeper.”

What’s more, in 2019 USA Today reported “Florida Gov. Ron DeSantis late Tuesday signed into law the first major reform in more than a decade to the state's cosmetic surgery industry, giving regulators stronger tools than in many other states. The new law, which takes effect in January, gives the state the power to suspend a clinic's operations or revoke its registration if it determines the facility poses an imminent threat to the public.”

That 2019 USA Today article also reported, “The Florida Board of Medicine earlier this month approved an emergency measure prohibiting the injection of fat into the gluteal muscle, a particularly dangerous technique used in a popular surgery known as the Brazilian butt lift.”

Some of these measures may well be driven by a sincere desire to prevent deaths and injuries resulting from botched operations. Yet there’s already a robust plaintiff-side medical malpractice bar in Florida. You can hardly drive from Palm Beach to Miami without passing a half dozen billboards advertising legal services. Genuinely malfeasant or grossly negligent doctors already might face not only civil malpractice suits but license suspensions or even criminal manslaughter charges.

So what, then, is really going on with the Florida legislature’s annual tinkering with the “act relating to office surgeries”? If you read the bill, you’ll see that the bill is regulating inputs, not outcomes. That’s generally a flawed approach. Outcomes would be things like post-surgery death or infection, or even survey-based satisfaction. Inputs are, well, from the 2024 legislation awaiting DeSantis’s signature: “An office in which a physician performs gluteal fat grafting procedures must at all times maintain a ratio of one physician to one patient during all phases of the procedure, beginning with the administration of anesthesia to the patient and concluding with the extubation of the patient. After a physician has commenced, and while he or she is engaged in, a gluteal fat grafting procedure, the physician may not commence or engage in another gluteal fat grafting procedure or any other procedure with another patient at the same time.” It’s basically a law limiting physician productivity.

Peter Schweizer got at this in his 2014 book “Extortion: How Politicians Extract Your Momey, Buy Votes, and Line Their Own Pockets.” He wrote, “If you are concerned that government action or inaction will severely damage you, you are much more likely to stroke the Permanent Political Class with a check….A milker bill gives politicians the opportunity to ‘milk,’ or squeeze, an industry for money. Whether the bill passes or not, the politicians still cash in.”

By that analysis, the last thing a Florida politician would want to do is fix the deadly Brazilian butt-lift problem once and for all, taking the issue off the legislative table. The industry would stop making campaign contributions or hiring the legislators’ friends, relatives, or former staffers as lobbyists.

The lobbyists have the same incentives to keep the issue alive. Some Florida lobbyist’s kids are probably having their college tuition bills paid by the fees generated by Brazilian butt lift legislation. I looked it up and there are 25—25!—lobbyists registered to lobby in 2024 on this Florida Brazilian butt lift law. They have some incentives to make sure that the legislature at least considers further incremental action on the issue in the year ahead, regardless of whether it will have much effect at all on patient safety.

DeSantis may have taken a less restrictive approach to pandemic restrictions than some other governors, but the “free state of Florida,” as he puts it, doesn’t look that free when it comes to cosmetic surgery.

Perhaps the governor will veto the legislation, giving the politicians an opportunity to take another pass at it next year. Law or no law, the mere specter of the law imposes a cost, requiring doctors to devote time and money to monitoring legislative action or to hiring someone to do it for them. Those costs wind up getting passed along to patients and making health care more expensive. One might even say these regulatory expenses wind up “lifting” the costs of every product in which health care is included as a cost, and injecting “fat” into a system that could be more lean.