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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