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The Legal Dispute - is NIST contravening US law?


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1) The NIST proposal

US government policy is that metric conversion is voluntary. This policy is represented by the Metric Conversion Act 1975.

However, the National Institute for Standards and Technology (NIST), an agency within the US Department of Commerce, proposes to make metric compulsory. Indications of this intention appeared in November 2002 when NIST held a forum to:

"…identify areas of work needed to ensure the effective voluntary transition to the use of metric units in all commercial transactions".

NIST intends to make metric compulsory via the Fair Packaging and Labeling Act 1966. The Fair Packaging and Labeling Act (FPLA) is one of the cornerstones of consumer protection in the United States, and requires that most packaged foods and consumable goods display a "dual declaration" of quantity, that is, a declaration in both US customary and metric units.

2) NIST's means of implementation

NIST proposes to remove from the FPLA the requirement that packaging displays US customary units. Metric will still be required, US units will not. There will no longer be equality in law between metric and inch-pound. The wording that NIST wishes to insert into the FPLA is as follows:

"The net quantity of contents (in terms of weight or mass, measure, or numerical count) shall be separately and accurately stated in a uniform location upon the principal display panel of that label:

(A) using the most appropriate unit of the metric system of measurement and the inch-pound measurement equivalent ... or

(B) using only the most appropriate units of the metric system of measurement."

Based on these apparent options, NIST describes the proposal as "permissible" or "voluntary metric-only labelling" , since they appear to provide businesses with a choice between existing "dual-unit labelling" and a new "metric-only option".

3) Analysis

NIST's presentation of its proposal is inaccurate and misleading. It implies that the FPLA dual declaration will still exist (obligation A, above), since the "metric-only" obligation (B) is an "additional option". Law, however, is not about what people may do, but what they must do. Although option A requires that quantity shall be declared in inch-pound AND metric, the inch-pound obligation is negated by B that says ONLY metric need be used. Therefore, B cancels out A. The NIST proposal can therefore be reduced to:

"The net quantity of contents…shall be accurately stated…using the most appropriate units of the metric system of measurement".

In other words, the "dual labelling" represented by A is illusionary; it has no legal meaning, since any inch-pound equivalent is rendered surplus to the law's requirement by B. So long as conversions are accurate and do not mislead, the inch-pound component lies outside the law's concern.

4) Is NIST's sponsoring of this amendment lawful?

NIST is a US government agency and must implement the will of Congress. This is represented by the Metric Conversion Act 1975, amended by the Omnibus Trade and Competitiveness Act 1988:

Section 205b - Declaration of Policy
"It is therefore the declared policy of the United States

(1) to designate the metric system of measurement as the preferred system of weights and measures for United States trade and commerce;

(2) to require that each Federal agency…use the metric system of measurement in its procurements, grants and other business-related activities except to the extent that such use is impractical…"

NB The current reference for the Metric Conversion Act is "Title 15, Commerce and Trade, Chapter 6, Weights and Measures and Standard Time, Subchapter II, Metric Conversion".

The first of the above two subsections, Section 205b (1), relates to trade and commerce, and states that metric shall be the "preferred system". This has been interpreted universally in the USA to mean that conversion to metric is voluntary, since the government "prefers" that trade and commerce uses metric but does not require it. The import of the word "preferred" is further demonstrated when juxtaposed against the word "required" in Section 205b (2) relating to the use of metric in the federal agencies. Here, Congress does not merely "prefer" federal agencies to use metric, but "requires" it, subject to exemptions. It follows that, had Congress intended metric conversion to be compulsory in trade and commerce, it would have used the word required and not preferred. The use of the word "preferred" in Section 205b (1) therefore represents a prevention by Congress on the power of government to compel metric conversion in the private sector.

5) The NIST proposal breaches the Metric Conversion Act

NIST does not dispute the above interpretation of the Metric Conversion Act. With regards to its current proposal, NIST has gone to great lengths to persuade observers that its proposal constitutes "voluntary" metric conversion. In its Forum report, NIST uses the words voluntary, optional and permissible no fewer than 48 times. In its dealings with industry, NIST describes its proposal as a "voluntary option" to use "metric only labelling" alongside the dual declaration.

As noted above, however, the effect of the NIST proposal is not to offer a choice between the two systems, but to eliminate the equality in law that currently exists. For metric to be voluntary, any proposal offered by NIST must include an alternative for those who volunteer not to use metric. NIST's proposal does not provide such an alternative. Although it allows metric to be used without inch-pound, it does not allow inch-pound without metric. The legal effect of compelling metric while removing the corresponding obligation to use lb/oz/pints is to eliminate the latter as trading units from the FPLA-regulated economy, since the law will only require the former. Consequently, NIST's sponsoring of the proposal directly contravenes the limits placed upon it by Section 205b (1) of the Metric Conversion Act.

6) NIST sleight of hand

Such contravention of US policy may not be obvious to all observers, since the psychological impact of the expression "permissible metric-only labelling" is to place the words "permissible" and "metric" in conjunction, thereby creating the impression that the use of metric is voluntary.

The key to understanding the phrase "permissible metric-only labeling" lies in the word "only". Without this word, the phrase becomes "permissible metric labelling"; such a proposal would obviously be consistent with US policy. The insertion of the word "only" has the reverse effect, that is, to negate the word "permissible". Decoded, therefore, the phrase "permissible metric-only labeling" means compulsory metric labeling, since the word "permissible" actually refers to inch-pound. Once this is understood, all of NIST's protestations to the contrary are exposed as false. For instance, according to Dr Richard Kayser, Director of NIST Technology Services,

"The use of only metric units will be voluntary and manufacturers must work with their customers to determine when the change will be appropriate".

What Dr Kayser is referring to is not whether US producers convert to metric, but whether they opt to provide an inch-pound equivalent alongside the compulsory metric label. In no way can such a use of inch-pound labelling be construed as voluntary metric conversion.

7) NIST avoids the appropriate legal route

The NIST proposal represents a reversal of Congressional policy of the past 28 years. The physical and financial impact will be immense, since the FPLA regulates around 90% of US supermarket sales. For example, the retail trade will no longer be able to rely on US units for systems and processes, and consumers, currently guaranteed a choice between metric and inch-pound, will be unable to rely on them for product comparisons.

The normal route for reversing US metric policy would be via the Metric Conversion Act, since this is the responsible Act. The most transparent means would be by changing the word "preferred" in Section 205b (1) to "required". This would have the benefit of making NIST's intention clear to Congress and the country at large. However, NIST, does not propose to amend the Metric Conversion Act. Instead, it seeks change by means of the Fair Packaging and Labeling Act, using it, in effect, as a "metrication act" for packaged foods and consumable goods.

Such a route is confusing. Not changing the Metric Conversion Act would have the effect of preserving public understanding that US policy is one of voluntary conversion, while the "small print" of the FPLA would make conversion compulsory in practice. Such an approach is likely to produce uncertainty over the medium to long term as to what, precisely, is US policy, since Congress, business and the general public will assume that metric is still voluntary, while enforcement agencies and government will be applying laws that say otherwise. Sooner or later, these two perceptions of the law must come into conflict.

8) A misuse of the Fair Packaging and Labeling Act

Not only does NIST contravene the Metric Conversion Act, it also contravenes the FPLA itself. The Congressional declaration of policy concerning the FPLA is as follows:

"Informed consumers are essential to the fair and efficient functioning of a free market economy. Packages and their labels should enable consumers to obtain accurate information as to the quantity of the contents and should facilitate value comparisons. Therefore, it is hereby declared to be the policy of the Congress to assist consumers and manufacturers in reaching these goals in the marketing of consumer goods" (Section 1451).

Nowhere in the above declaration does Congress say that the FPLA is a vehicle for metrication or that it is a "metric conversion act". It is manifestly clear that Congress's intention in passing the FPLA was to protect consumers. One of the means by which the FPLA does this by ensuring that quantity is displayed in both US and metric units, meaning that consumers have information, regardless of which system they choose to use.

NIST reassures manufacturers that US units may still be displayed. But the purpose of the FPLA is to ensure the provision of such information. The FPLA cannot take effect simply by saying that producers may provide US units on a voluntary basis. The FPLA exists to protect consumers, and NIST ignores the possibility that some manufacturers may decide deliberately not to show US units in order to conceal product downsizing and price increases.

Given that inch-pound units are taught in US schools and used by almost all Americans for purposes of perceiving quantity, is not clear how the FPLA would be fulfilling its purpose by not obliging producers to require US as well as metric units. Although presented as a mere "amendment" to the FPLA, the NIST proposal effectively constitutes a repeal of 50% of the Act.

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