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 in that it requires most packaged foods and
consumable goods to 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. By describing
metric-only labelling as an "additional option", NIST implies that the FPLA
dual declaration will still exist. In reality, however, although obligation A
above 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 effect of 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.
To put it
another way, prior to 1994, the only units required under the FPLA were
inch-pound; it was irrelevant whether metric was displayed. Under the current
NIST proposal, the exact reverse will be the case: inch-pound will become
extraneous, only metric will be required.
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, that is,
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" that federal agencies 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.
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 a meaningful
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 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 relevant 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 gives the impression that the
USA's voluntary approach to use of metric remains unchanged. Yet, the "small
print" of the amended FPLA would make it compulsory in practice. By avoiding
the Metric Conversion Act, the implications of NIST's proposal may not be
apparent to either legislators or the public. It is almost as though NIST is
trying to conceal the consequences of its proposal.
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", the NIST proposal effectively
constitutes a repeal of 50% of the FPLA - in pursuit of a goal that is not
consistent with US government policy.