BALANCING CONSUMER PRIORITIES IN THE DEVELOPMENT OF AUSTRALIAN STANDARDS

The role of consumer representatives on Standards committees is to identify and promote the consumer position in the development of Standards.

 

This task is difficult when, as frequently occurs, consumer representatives have to take a minority position on their committees, because other sectoral interests that are represented, such as manufacturers and distributors, government regulators and the academic community, do not necessarily appreciate or understand consumers' interests in the Standards being developed. Other sectoral interests often number three or four representatives each, with like interests, such as manufacturers and distributors, aligning. On the other hand, it is usual for only one consumer representative to be appointed. Accordingly, a sole consumer representative generally carries the responsibility for mounting an argument for consumer protection, and, being a lone physical presence at the committee table, this can sometimes be intimidating.

 

Consumer representatives are not helped by the argument, sometimes made by other committee members, that there is no need for a specific consumer position because all committee members are consumers and can therefore be naturally relied on to promote consumers' wellbeing. Of course, committee members who oppose having the consumer position articulated may do so simply because they oppose regulation for consumer protection! The argument is specious because committee members are accountable to their nominating organisations, and therefore members not specifically appointed as consumer representatives are accountable to the interests of their nominating organisations as opposed to consumer interests. Furthermore, adequate consumer representation requires more than one's individual experiences as a consumer. It also requires:

 

•  understanding of consumer affairs;

•  links to relevant consumer organisations;

•  a capacity and willingness to consult with relevant consumer organisations; and

•  knowledge of, or the ability to acquire knowledge of, the industry and issues involved in the appointment.(1)

 

In every Standards project, it is necessary for consumer representatives to identify all the factors that need to be assessed in determining the consumer interest, weigh them up, and then present them as a cogent argument. Considering that there are usually different types of consumers, as well as different consumer priorities to consider and that the argument must often be made in the face of strong opposition from other powerful sectoral interests, a coherent position is crucial.

 

General consumer priorities

 

The first step for consumer representatives in coming to a considered position on a Standards project is to identify relevant consumer rights and priorities.

 

The consumer "Bill of Rights", first proclaimed by President John F Kennedy in 1962 and subsequently adopted by the consumer movement worldwide including the CFA, sets out a comprehensive list of rights to take into account. These rights are:

 

The right to safety

To be protected against the marketing of goods or technologies which are hazardous to health or life.

 

The right to be informed

To be protected against fraudulent, deceitful or misleading information, advertising, labelling or other practices, and to be given the facts needed to make an informed choice.

 

The right to choose

To be assured, wherever possible, of access to a variety of products and services at competitive prices, and in those industries in which competition is not workable and government regulation is substituted, an assurance of satisfactory quality and service at fair prices.

 

The right to be heard

To be assured that consumer interests will receive full and sympathetic consideration in the formulation of government policy.

 

The right to redress

To be assured easy access to legal remedies including compensation for misrepresentation, hazardous or sub-standard goods and unsatisfactory services.

 

The right to consumer education

To acquire the knowledge and skills to make informed choices.

 

The right to a healthy environment

To be free from environmental hazards such as chemicals and radiation.

 

The right to satisfaction of basic needs

To be guaranteed adequate food, clothing, shelter, health care, education and sanitation.

 

Clearly, not all of these rights will be relevant in any one Standards project.

 

The rights articulated in the "Bill of Rights" are generally reflected in the list of priorities for nomination of consumer representatives to Standards committees, recently endorsed by the CFA. This list, which should be familiar to most CFA representatives, is:

 

•  Health, safety and welfare of vulnerable consumers, and overwhelming public interest

•  Health, safety and welfare of consumers generally

•  Accessibility and fair trading of essential services

•  Information - consumers' right to know

•  Environmental impact of services and products

•  Fair trading of non-essential services and products

As well as being used to determine which Standards committees will receive priority in the nomination of consumer representatives, this list also offers guidance on how to prioritise consumer rights in any given Standards project. For example, the "health, safety and welfare" of consumers will clearly be of paramount importance, and the interests of vulnerable consumers, such as children, the elderly, people with disabilities and other disadvantaged consumers, will also be a primary concern. Accordingly, the "health, safety and welfare" of vulnerable consumers should not be sacrificed to lesser priorities such as the general accessibility of products and services.

 

It also needs to be taken into account that there is often considerable overlap between priorities. For example, environmental impacts may include chemical effects, which could pose health and safety concerns. Indeed, many environmental impacts affect health over the longer term.

 

Identifying the important issues

The main consumer issues in a Standards project can generally be identified by asking who will be affected by the Standard, and how will they be affected.

 

In some cases, the Standard will have a general effect.

 

Examples:

•  Health Informatics Standards which deal with the privacy and accessibility of health care records affect all health care consumers.

•  The Environmental Labelling Standard affects everyone because it deals with consumers' basic right to know about the products they buy.

 

In other cases, the Standard will raise relevant consumer concerns, such as safety, for only a proportion of the population or pose particular challenges for a certain category of consumers, whether or not the Standard is aimed at that group.

 

Examples:

•  Children are often specifically targeted, for example, by Standards on Safety of Toys, Playgrounds and Children's Furniture.

•  The Standard for Valves for Use in Hot Water Systems, while not specifically aimed at children, is directly relevant to children's safety because it deals with valves that control water temperature from domestic taps.

•  The Standard on Access for the Disabled obviously affects people with disabilities, but people with different disabilities need to be considered, for example, wheelchair bound people, and people with visual impairment.

•  The Standard on Public Access to Automatic Teller Machines is not aimed specifically at people with disabilities, but should take into account those people's particular requirements for access.

•  The Standard on Motor Vehicle Frontal Protection Systems (bull bars) takes into account the safety of pedestrians as well as vehicle passengers.

•  The Standard on Sunglasses takes into account that a significant proportion of the population are colour blind, and therefore have particular needs for visibility in sunglasses, especially when driving.

•  The Standard on Solaria includes a provision that the minimum age for use is 18 years or 16 years with parent/guardian consent.

 

Sometimes, the Standard will raise different issues for various categories of consumers, for example, able-bodied consumers and those with disabilities, and it may therefore be appropriate to appoint more than one consumer representative to the committee in question in order to represent the different consumer interests affected. Accordingly, a general consumer representative who identifies a particular category of consumers who will be affected by the Standard and who have special needs that the consumer representative does not feel qualified to represent, is entitled to ask the committee to appoint an additional consumer representative who is so qualified.

 

Identifying the overall aim of the Standard

 

It is also important to consider what the Standard should achieve overall. A "good" Standard will not only provide adequate consumer protection but will also be widely if not universally used, even if it is voluntary.

It should:

•  offer basic, bottom line consumer protection;

•  be non-ambiguous and concise, especially as Standards need to be interpreted legally, in contracts, and sometimes in legislation;

•  be practicable and not too costly to implement - in other words, useable;

•  promote innovation, and not be prescriptive. It is important to ensure that future products that might be an improvement are not prohibited under the Standard. Standards regulate the technical aspects of products and services, and are not an appropriate medium for promoting or banning particular brands or products.

 

These are general criteria, and relating them specifically to the project at hand is the task of the whole committee, not just the consumer representative. The special contribution of the consumer representative is to articulate what constitutes essential measures for consumer protection. At a meeting of consumer representatives in 2000, these measures were identified as those things that the consumer representatives will "die in a ditch for"; that is, bottom line protections that, if not included in the Standard, will render it unsupportable by the consumer representative.

 

Example:

The Standard on Child Restraints for Use in Motor Vehicles should:

•  ensure that child restraints allowed under the Standard offer protection to children from physical injury under predictable use in all predictable collision situations, not just in usual situations;

•  be clear as to which type of restraints are allowed, as well as those which are disallowed;

•  provide for child restraints that are actually able to be fitted to cars supplied in Australia, at a cost that will not discourage consumers from purchasing them; and

•  not describe only systems currently available, but take into account that there will be future innovations which enhance safety and should therefore be allowed under the Standard.

 

When consumer priorities conflict

 

Sometimes, consumer priorities appear to be in conflict. For example:

•  environmental or safety measures included in a Standard may incur a financial cost which is passed on to consumers;

•  health and safety measures may restrict the design or use of products available to consumers.

 

It is often the case that, on closer consideration, different priorities are actually complimentary rather than conflicting.

 

Example:

The Standard on the Thermal Insulation of Roofs/Buildings and Walls in Dwellings includes a financial analysis of the cost effectiveness of insulation. The evaluation takes into account not only the cost of insulation, but also the cost of energy saved by installing insulation. When the Standard was revised in 1999, the consumer representative on the committee revising it asked the committee to consider the likely long term cost savings to consumers if energy-efficient insulation is promoted and mass produced in future.

 

It is often important to balance consumer priorities rather than simply trade them off to achieve an overall result that will advance the interests of consumers. The inherent aim of the consensus process is to develop a Standard that meets all important criteria, and is acceptable to all parties, rather than simply to decide between options via a ballot.

 

Example:

The suite of Standards on Safety Requirements for Playground Equipment tries to balance safety measures with educational and play value which are also important considerations for children, so that neither are unduly compromised. The aim is to find a balanced position on the hazard cost/value benefit continuum, where children's needs to take risks and expand their limits for their physical, social and emotional development are enhanced, without unacceptable risk of injury or distress. (2)

 

The discussion and debate stages of the development process may be used to develop creative solutions that do not involve unnecessary compromise of any committee member's priorities, as long as committee members have a commitment to and an understanding of this aim. Frequently, opposing views on a committee are due more to lack of understanding about the positions taken, or differing opinions about the way clauses in a Standard should be worded, than inherent differences in approach. These differences may be resolved by attempting to understand the real basis of conflicting views, and rewording problematic clauses to meet all committee members' needs.

 

The voting stage, while necessary to assess final support for the Standard and commit committee members to their support for it, comes only after there has been a chance to achieve consensus.

 

When is it necessary to compromise?

 

Working with a committee that is committed to achieving consensus rather than compromise, on a project where options and views are not polarised, is an ideal situation. In reality, however, it is common for a final ballot to result in negative votes on a draft Standard, and for those negative votes to be sustained even after every attempt has been made to resolve them. In these cases, it is the rule that the Standard may still be published if 67% of those eligible to vote have voted affirmatively, and 80% of votes received are affirmative.(3)

 

Accordingly, a consumer representative is often in the position of having to consider whether it is worthwhile to compromise the ideal consumer position in order to vote in favour of a draft Standard. In deciding whether or how far to compromise, it is important to consider why the need for the Standard arose in the first place; in other words, the circumstances that led to the project being initiated. It should be remembered that a new Standards project is never initiated arbitrarily, except in the case of a simple revision that has arisen because the Standard's time limit is up rather than because there is any concern about the Standard's effectiveness. Standards are generally initiated as a result of:

 

•  a specific request to Standards Australia, due to a perceived community or industry need, and/or

•  international regulation, usually arising from Standards Australia's policy to adopt International Standards as Australian Standards.

 

It is increasingly common for Standards projects to be initiated to consider an International Standard for adoption, but all Standards exist in the context of a particular regulatory environment. These circumstances will often determine whether a compromise position is acceptable. If, for example, there is a pressing community need for safety measures in an under-regulated environment, the consumer representative should be prepared to compromise on other provisions in the Standard if this will ensure that the Standard is passed with the basic safety provisions included. On the other hand, it may be that the whole Standard, or most of its provisions, should conform to consumer expectations for the Standard to be acceptable to consumers.

 

Examples:

•  The Standard on Electrical Fence Installations was reviewed in 2001 as a normal requirement after ten years. However, the safety levels provided by the Standard were under particular scrutiny because there had been a number of serious injuries, including deaths, in Australia in association with electric fences. The consumer representative's role was to ensure that the safety provisions in the Standard would cover the risk of injury. Although there was a lack of consensus on the committee on some technical issues, such as the means of communicating about fences with property owners, it would have been inappropriate for the consumer representative to vote against the Standard once the basic safety provisions were resolved.

•  The Standard on Sunglasses received an affirmative vote from the consumer representative on the committee although it was felt that the Standard contained technical errors, as otherwise there would be no technical Standard on the supply of sunglasses in Australia.

•  The Standard on Waste Management - Glossary of Terms was initiated to provide consistency for industry and the community on the use and understanding of terms related to waste management. Consumer representatives successfully argued that a comprehensive, rather than a compromised, list of definitions of waste management terms should be included in the Standard in order to fulfil its purpose.

•  A revision of the Standard on Sunscreen Products - Evaluation and Classification was published without including a Broad Spectrum requirement, as consensus could not be reached on this provision, and the consumer representative considered it more prudent to allow publication of an improved Standard than to hold up publication and keep the outdated Standard in use.

 

Standards Australia's policy to adopt International Standards whenever possible, as a consequence of the Australian government's policy not to raise barriers to international trade, deserves special mention. Standards committees, including consumer representatives, are under pressure to adopt International Standards where they exist. However, consumer representatives should resist this pressure when it means that the International Standard in question would allow the influx of inferior products that may present significant hazards for consumers under Australian conditions.

 

Example:

•  The consumer representative on the Safety of Toys committee did not agree to the adoption of international provisions that would have allowed pool toys manufactured from a non-UV stabilised material, suitable for use in indoor pools in the Northern Hemisphere but considered unsafe for outdoor use in the harsh Australian climate, as these products could rapidly deteriorate and deflate under these conditions, resulting in a safety hazard when used for buoyancy.

 

Standards projects always arise in a social and political, as well as a regulatory, context. This has to be taken into account even when the Standard in question constitutes a relatively low or technical level of regulation in an area where there is already a high level of regulation in the form of Acts of Parliament or binding contracts. For this reason, in any Standards project that affects the wider community, it is crucial to have an adequate level of consultation with the community or, at least, a range of stakeholders that reflects the differing opinions about the issue in question within the community. It often falls to the consumer representative on a committee, rather than industry or government representatives, to raise and even insist on the need for consultation. In fact, consultation may be a bottom-line measure, without which, arguably the Standard will be doomed not to meet community needs and expectations.

 

Example:

•  The Australian Forestry Standard was published in 2003 after the two representatives of non-governmental (community) organisations on the committee resigned, claiming that the committee did not conduct adequate community consultation and did not take into account the community representatives' views. As a consequence, the Standard was only given interim status, and the committee is now required to conduct proper community consultation before the Standard will be given full status.

 

Options and opportunities when the consumer position is not accepted

 

When the final draft of the Standard contains acceptable bottom-line consumer protection measures but the ideal consumer position has been compromised in order for the final ballot to be passed, the consumer representative has the following options:

 

•  Any recommended alterations to the Standard may be recorded by the consumer representative, for both the CFA's and the committee's archives, to be included or, at least, negotiated when the Standard is revised;

•  Important issues not otherwise dealt with may be mentioned in the Preface of the Standard, to be taken into account, when the Standard is revised.

 

When consensus has not been able to be reached on adequate consumer protection measures, and the final draft of the Standard does not contain them, the consumer representative should, of course, vote against the draft. However, this should be an option of final resort after attempts have been made to convince the committee of the validity of the consumer position. As well as mounting a persuasive argument, it is often necessary for the consumer representative to provide concrete evidence in support of claims, such as statistics or examples. Standards Australia may be requested to provide these, but consumer representatives' experience is that this does not always happen, and it is important to request support from relevant consumer organisations, including the CFA, and the Standards Co-ordinator, when assistance is required. It is also customary for committee members to lobby each other in relation to their positions, and this option is also open to the consumer representative.

 

Once a ballot has occurred, and a negative vote is sustained after further attempts at negotiation with the committee, it will be recorded in the ballot report for the Standards Sector Board (SSB) to review. If the SSB agrees to publication of the Standard despite the negative vote, the nominating organisation that sustained the negative vote may request that it be recorded in the Preface that it did not agree to publication of the Standard.

 

Whether or not consensus is reached, the committee's discussion process may be used as an opportunity by the consumer representative to educate other committee members and sectoral interests about the consumer position, even if the whole position is not ultimately accepted by the committee.

 

References:

•  Commonwealth Consumer Affairs Advisory Council, 2002, Draft paper: Principles for the Appointment of Consumer Representatives: A Process for Governments and Industry

•  Standardization Australia, Standardization Guide No. 1, Preparing Standards

 

Acknowledgements:

Thanks particularly to Robyn Easton, Deni Greene, Fiona Guthrie and Polly Plowman for providing useful information and insights.

 

(1) Adapted from Commonwealth Consumer Affairs Advisory Council, 2002, Draft paper, Principles for the Appointment of Consumer Representatives: A Process for Governments and Industry

(2) Information provided by Polly Plowman, CFA representative on Standards Australia's Playground Equipment committee

(3) Standardisation Guide No. 1, Preparing Standards