The Vast Unknown World of Private Standards
Gas stoves, extension cords, x-ray equipment, and automobiles are among the thousands of items regulated in the United States by industrywide safety standards. Yet remarkably little is known about the institutions that generate the overwhelming majority of standards. These institutions, many will be surprised to learn, are private, not public. In the list above, only automobiles are subject to safety standards written by the public sector—and even so, private standards developed by the Society of Automotive Engineers play an integral part in the government's regulatory scheme. In significant product categories, such as gas and electric appliances, virtually all existing safety standards are developed by the private sector.
The National Bureau of Standards (NBS), recently renamed the National Institute of Standards and Technology,[8] estimated that there were thirty-two thousand private standards in 1983. The bulk of these regulate uniformity or interchangeability and are not particularly important or controversial.[9] The number infused with significant implications
for the public interest is probably in the thousands. These standards aim to promote social goods such as fire safety and product safety. Many are written by traditional trade associations—membership organizations with relatively homogeneous memberships. Others are written by little-known groups such as Underwriters Laboratories (UL) and the American Conference of Government Industrial Hygienists (ACGIH; a prominent private organization, despite its name). At least half of the top twenty standards-setters in the private sector are organized along professional lines or as "independent" entities (see table 1). More detailed background information about these private standards-setters appears in chapter 2.
Private standards raise many significant policy questions for government. First, public agencies must decide when (if ever) to defer to these standards or incorporate them into law. The Office of Management and Budget (OMB) issued a circular in 1982 to encourage federal agencies to use private standards, but the policy is vague and has not been implemented effectively.[10] Second, agencies must decide when and how to participate in private standards-setting. A controversial issue within the CPSC is whether government representatives should vote on private standards-setting committees. Third, government must consider how (if at all) it can improve private standards-setting. Finally, government must decide when (if ever) to ban private standards. The FTC and the courts have addressed this issue over the years in the context of antitrust law.[11]
The literature on private standards-setting is long on anecdotes but short on systematic analysis and evidence.[12] Public standards-setting, by contrast, has received far more scrutiny, even though the size of the undertaking pales in comparison to the private sector. The CPSC, for example, has adopted about a dozen product safety standards since 1973, several of which were struck down in court; UL, on the other hand, has over five hundred published safety standards currently in force.[13] Yet there are books, dissertations, and countless articles about the CPSC. The only published works about UL, a few scattered articles, were written mostly by UL staff members. David Hemenway's Industrywide Voluntary Product Standards provides a helpful analysis of the various types of private standards, but it says little about the "quasi-political" process through which these standards are developed.[14]