The Path of Least Resistance

Private standards-setting is widely thought to be controlled by those who want the least done. Most private standards are "consensus" standards, a process noted for the rule that there be no "unresolved negatives" among those participating. This process seems practically designed to ensure that standards-setters follow the path of least resistance. The need for consensus, Eads and Reuter argue, leads to a "watering down" of many standards.^[3] The process is abetted, others add, by the lack of consumer representatives agitating for increased safety.

The case studies provide selective support for the conventional wisdom. Business interests often express concerns about the cost of upgrading standards. Manufacturers of woodstoves and gas space heaters complained that the costs of certain UL and AGA requirements were unjustifiably high. Grain elevator operators sing the same refrain. There may be a realm in which engineers reign, but it is most likely to encompass provisions that would not add costs perceived to be significant by producers.^[4] "People who don't have instructed votes still know who they work for," observes an NBS official familiar with many private standards-setters.

Concerns about "imbalance" among participating interests also find support in the cases. Organized consumer groups had a meek voice compared to manufacturers in all of the private cases. "Numbers count," according to an engineer at Consumers Union, "and I have been at a lot of meetings where I am the only negative vote—and that is the end of it." UL and some ANSI-sponsored committees pay lip service to "consumer participation," but consumer groups actually play only a

minimal role in the process.^[5] It is not that private standards-setters specifically exclude consumers—although attorneys have occasionally been excluded—so much as that consumers are unorganized and rarely have the resources to participate.^[6]

But the "path of least resistance" is not a predictive explanation, since it says nothing about when resistance will or will not occur. Moreover, it leaves unanswered the question why pro-safety results sometimes obtain over the objections of some business interests. The cases suggest two reasons why the lowest common denominator might not prevail: (1) there are unlikely pro-safety interests in the private sector, and (2) there are institutional impediments to the "watering down" process hypothesized by Eads and Reuter.

Unlikely Safety Interests . Although the range of interests on most committees is limited by the paucity of consumer participants, the cases highlight several largely unrecognized advocates of safety in the private sector. For example, representatives of the insurance industry have an interest in controlling losses. Insurance representatives pushed UL to upgrade its requirements for metal chimneys.^[7] Vendors of safety equipment also carry the pro-safety flag. Manufacturers of dust-control equipment speak out for improved housekeeping measures on the NFPA Agricultural Dusts committee. Labor representatives on some committees also favor various safety measures. The Air Line Pilots Association is active on NFPA's aviation committees; a representative from a Grain Workers Local sits on its Agricultural Dust Committee.

Installers and servicers also care about safety, often more than they care about cost or selection. An outspoken member of the National Chimney Sweep Guild was almost successful in getting NFPA to ban large stoves that require clearances of more than the traditional thirty-six inches.^[8] Representatives of gas utilities, whose employees must confront the victims of product injuries, frequently argue in favor of additional safety features for gas appliances. The J. C. Penney testing lab, designed to incorporate considerations about the consumer into purchasing decisions, also suggests occasional improvements in UL standards. Finally, "the fire service" itself, as it is known around NFPA, is well represented on NFPA committees. Firefighters spread what the NFPA president recently called "the gospel of fire protection."^[9] A Washington lawyer familiar with private safety standards agrees that "most NFPA committees have a bias toward the fire services." Needless to say, cost-benefit analysis is not one of the commandments.

The most intriguing examples of unlikely safety interests are committee members who appear to act against the interest they represent. Staff members at AGA Labs, for example, favored a ban on space heaters, while the AGA at large—overseer of the labs—opposed it.^[10] The representative of a major airline takes positions on NFPA aviation committees that are sometimes opposed by his superiors. The simple explanation is that an "interest" is rarely homogeneous. Just as consumers are not interested only in safety, manufacturers are not interested only in costs. Take a commercial airline, for example. Part of the organization is interested in keeping operating costs down, while other parts are interested in reducing insurance and liability costs. The latter are likely to favor increased expenditures for safety. The Maintenance Department probably wants a larger budget, and the Marketing Department might be interested in adding those safety items that matter most to passengers (for example, smoke detectors but not fire-blocking seat covers). In the case of NFPA 408, the airline representative cited above works in the Engineering and Safety Department. His professional interest is in safety, with little regard for cost. And since it is more likely that a safety engineer than an account executive will sit on the relevant standards-setting committee, organizational interests are likely to be subtly slanted in favor of safety in many cases.

Institutional Considerations . The second problem with "capture" theory is more fundamental: there are institutional reasons why standards-setting does not always reflect the conventional wisdom. Primarily, standards used by product testing labs are not written by "consensus." They are written by in-house engineers and only later sent through a "canvass" process leading to ANSI approval and the designation "national consensus standard." Fatal to the "watering down" theory, delays in the ANSI canvass process have no effect on the testing labs. UL uses (and revises) its standards long before they are distributed by ANSI for comment and review. UL officials privately confirm that failure to achieve ANSI approval would not affect this situation. In other words, UL is happy to go ahead without ANSI's imprimatur. Accordingly, no participants have an influence akin to veto power. While UL seeks comments from industry, it also adopts standards that do not enjoy the "consensus" of all manufacturers. The "least common denominator" argument also lacks an explanation for the role of the staff. A study of the Association of Home Appliance Manufacturers concluded that the staff has its own sense of mission and its own in-

terests, pursuing some goals that are not necessarily in the interest of the general membership.^[11]