Green & Healthy Industry Standards Increasingly Used to Secure a Competitive Advantage, Give Rise to Lawsuits

http://pubs.acs.org/cen/coverstory/86/8619cover2.html

Sorting Through The Confusion In Personal Care Certification


By Marc S. Reisch


Chemical & Engineering News


May 12, 2008


Volume 86, Number 19, at p. 16


Personal care product certification standards have become a high-stakes, hotly contested issue.
Late last month, Dr. Bronner's Magic Soaps sued personal care product makers Jason Natural Cosmetics and Estée Lauder, along with Stella McCartney's Care and two standards certification organizations, Oasis and Ecocert, to "stop them from making misleading organic labeling claims."

Dr. Bronner's, an Escondido, Calif.-based maker of cleansing and moisturizing products that claims its main ingredients are made with certified organic materials, filed the suit in California Superior Court together with the Organic Consumers Association.


"We have been deeply disappointed and frustrated by companies in the 'natural' personal care space who have been screwing over organic consumers, engaging in misleading organic branding and label call-outs on products that were not natural in the first place, let alone organic," company President David Bronner said in filing the suit.


Bronner claimed, for instance, that the major cleansing ingredient in Jason's natural and organic liquid soaps, body washes, and shampoos is "sodium myreth sulfate, which involved ethoxylating a conventional nonorganic fatty chain with the carcinogenic petrochemical ethylene oxide, which produces carcinogenic 1,4-dioxane as a contaminant."


The suit also charges that certifying organization Ecocert "engages in creative misinterpretation of its own rules in order to accommodate clients engaging in organic mislabeling." It charges that the recently formed group Organic & Sustainable Industry Standard (Oasis), largely backed by U.S. industry stalwart Estée Lauder, has set weak standards. Oasis, it charges, permits use of the label "organic" even if personal care products contain hydrogenated and sulfated ingredients "such as sodium lauryl sulfate made from conventional agricultural material grown with synthetic fertilizers, herbicides, and pesticides and preserved with synthetic petrochemical preservatives."

As the Dr. Bronner's suit suggests, there is a great deal of confusion in the industry over organic standards. In many cases, cosmetic makers are still grappling with definitions of what is natural, organic, or sustainable. Many of the standards organizations are in talks to harmonize the standards among them, but some in the industry are skeptical about their ability to agree.

Dr. Bronner's was itself part of a working group at the Washington, D.C.-based Natural Products Association that was formed about a year ago to come up with a definition for the term "natural" as it applies to personal care products. NPA issued its definition and natural seal earlier this month. "Arriving at a clear definition for use of the word natural is something both our industry and consumers want," says Daniel Fabricant, NPA's vice president of scientific and regulatory affairs. Other terms such as organic and sustainable are really subsets of natural, Fabricant says.

NPA's natural certification seal will appear on personal care ingredients that meet its definition of natural. Formulations must be at least 95% natural and involve no processes that adversely alter purity. In addition, the products must contain ingredients that come from a renewable or plentiful source. The standard permits nonnatural ingredients only when "there are absolutely no suspected potential human risks."

Other U.S. groups are also working on standards for personal care products. NSF International, which defines itself as a "public health and safety company," published a 46-page draft document earlier this year to define a standard for organic personal care products. According to the group, the standard under development will not address toxicology or social responsibility but only organic label claims.


Oasis has developed its own standards to certify formulations containing synthesized ingredients using certified organic plant materials. According to Oasis, "There has been no united voice among health and beauty companies that has supported credible development of organic and sustainable production, or the ability to communicate what this means to retailers and consumers." In addition to Estée Lauder, founders of the group include ingredient maker Cognis and personal care product companies such as Aveda and L'Oréal.


In February, the Canadian environmental, health, and food safety standards certification firm Certech Registration began offering natural and organic certification to cosmetics makers. According to its President Brian Lane, until Certech began to offer its own standards certification, North American firms had to resort to regulation intended for agricultural products, such as the U.S. Department of Agriculture's National Organic Program.


Europeans are further ahead in the effort to define and certify cosmetic products. France-based Ecocert was founded in 1991 largely to certify organic food products. In the U.K., the Soil Association certifies personal care products that meet its standards for organic content. Another European group, the European Natural & Organic Cosmetics Interest Grouping (ENOCIG), recently formed a partnership with the German Cosmetic, Toiletry, Perfumery & Detergent Association (known by its German initials IKW) to establish the NaTrue label for natural cosmetics. And the Federation of German Industries & Trading Firms (known by its initials BDiH) also has a set of standards governing natural personal care ingredients.


Certification standards are still up for debate and are likely to continue causing confusion. But unless ingredient makers and formulators sort out their differences, the subject of what is natural, organic, and sustainable may have to be sorted out in court.

Using Eco-Labels to Promote Producer & Consumer Behavior Modification May Very Well Give Rise to Disguised Trade Barriers, Admits UN

http://www.unep.ch/etb/publications/Ecolabelpap141005f.pdf


The Trade and Environmental Effects of Ecolabels: Assessment and Response


United Nations Environment Program (2004)


Executive Summary


There is no easily accessible, independent body of data on the environmental effectiveness of ecolabelling. Despite the relatively high profile of the five labels that are the focus of this study, adequate data does not even exist on them. Anecdotal evidence and proxy indicators (many of which are imperfect) are not a sufficient basis for evaluating the environmental usefulness or desirability of ecolabelling programmes. In addition, it is currently difficult to isolate the effects of labelling from other variables that could lead to more sustainable production and consumption. There remains an urgent need to collect additional, reliable scientific data on the
environmental effects of existing ecolabelling programmes.


Neither is reliable, quantified evidence available concerning changes in trade flows – positive or negative – related to ecolabelling.


Minimizing undesirable trade effects

Two problems deserve to be given particular attention:

• the lack of checks or balances in regard to the proliferation of ecolabels, including the lack of any way to harmonize existing and new ones; and


• the cost of conformity assessment (often the most significant barrier for developing country producers), which is related to the proliferation of ecolabels.


The discussions on ecolabelling within the World Trade Organization (WTO) seem unlikely to progress in the short to medium term. Discussions on ‘labelling for environmental purposes’ under the Doha agenda are taking place in the Committee on Trade and Environment (CTE). This committee has no authority to create new rules on labelling or to amend existing ones. The Committee on Technical Barriers to Trade (CTBT) has the authority to create new rules in this area, but it remains unconvinced that rules for ecolabelling should differ from those for other types of labelling programmes. In any case, the CTBT is unlikely to turn its attention to
ecolabelling before 2006 at the earliest.


Even if WTO members were to discuss the need for new ecolabelling rules in the CTBT, anything this committee decided would impose rules only on governments. The WTO Agreements do not directly impose obligations on the types of private bodies that develop most ecolabelling programmes, nor do they impose obligations on companies establishing purchasing requirements or buying preferences. The WTO does not provide a forum that includes these bodies and other non-governmental stakeholders in the trade of ecolabelled goods. For all these reasons, the WTO does not appear to be adequately equipped to address the issue of this type of environmental requirement, which is increasingly being imposed through supply chains.


...(pp. 24-26)

Potential impacts of ecolabelling As mentioned earlier, no reliable information is available on the extent to which any of the five ecolabels has affected trade flows from developing countries because of their possible role as technical barriers to trade. To date, almost no concrete concerns have been expressed within the WTO or any other forum regarding a specific Type I ecolabelling programme.


Concerns have tended to be general in nature and to be directed at environmental labelling in general. A review of the potential negative impacts of ecolabelling can do little more than summarize the widely expressed but largely unsubstantiated concerns expressed by WTO members.

[ Polak, John, 2003: ‘Trade as an Environmental Policy Tool? GEN, Ecolabelling and Trade,’ paper presented at the World Trade Organization Public Symposium: Challenges Ahead on the Road to Cancun, ‘Ecolabelling: Trade Opportunities & Challenges’, 16-18 June 2003. One exception has been the March 1998 submission by the Colombian Government to the WTO CTE CTBT setting out its concerns about the various European ecolabelling schemes for flowers. See WT/CTE/W/76 and G/TBT/W/60, World Trade Organization, Geneva, 9 March 1998.]


...To understand the range of concerns expressed by WTO members, it is important to note that within the WTO context an ecolabel is treated as a specific type of standard, accompanied by a mark of conformity. Therefore, virtually all the concerns WTO members have expressed about standards and conformity assessment procedures, and virtually all the problems they have with implementing the Agreement on Technical Barriers to Trade (TBT), exist in the context of ecolabelling.

[Both the Agreement on Technical Barriers to Trade (TBT Agreement) and the Agreement on Sanitary and Phytosanitary Provisions (SPS Agreement) contain provisions relevant to ecolabelling. For the sake of clarity and simplicity, this paper focuses on the TBT Agreement.]


...The TBT Agreement outlines certain procedural obligations that are intended to ensure that standards, technical regulations and conformity assessment procedures are not prepared, adopted or applied by one member in such a way that they impose unnecessary or unjustified barriers to trade on other members. In particular, Annex 3 of the TBT Agreement outlines a Code of Good Practice (Standards Code): a number of requirements relevant to the development of voluntary standards. The first of these procedural requirements is the use of international standards.


Article F of the Standards Code calls on standards bodies to base their work on relevant existing or imminent international standards. This presents problems in the case of ecolabels. One problem is that, apart from the generic ISO 14020 series of ecolabelling template standards and the generic ISO 14040 life-cycle assessment standards, both of which are tools for developing ecolabels rather than actual ecolabels, there are very few international ecolabels. Ecolabels are generally developed based on national environmental priorities and preferences. They have evolved outside the context of traditional national standards bodies, and therefore outside the context of international standardization infrastructure. Moreover, there is no working definition of ‘international standard’ in the TBT Agreement.


Because there is no legal basis for ensuring that new standards do not overlap or conflict with existing ones, there is no check on the proliferation of ecolabels. Since developing countries are standards takers, some in the trading community argue that a proliferation of ecolabels can greatly increase the cost to these countries of accessing different markets. This is one of the main complaints expressed by developing country exporters. In the case of each of the five ecolabels discussed in this report, there is a variable degree of competition between different standards and frequently there is no scientific information available to justify the differences.


Some experts believe that some bodies that develop ecolabels have been set up for the express purpose of offering an alternative to existing ecolabels, either as a way to add confusion to the marketplace or to provide alternatives with less strict criteria.

[‘Building Bridges: Ethical Standards, Sustainable Development and Trade’, meeting report, Geneva, Switzerland, 12-13 June 2003, meeting sponsored by the Rockefeller Brothers Foundation and GTZ; on file with the author.]


Articles J, K, L and M of the Standards Code address issues related to transparency and coordination. They call on standards bodies to publish a work plan every six months, to associate with national members of ISONet, to allow comment periods of at least 60 days, to publish a notice of the comment period, and to provide drafts of standards for comment to any interested party within the territory of a WTO member. Because most ecolabels are developed by non-governmental bodies outside the traditional standards networks and infrastructure, it is likely that many ecolabel practitioners are unaware of (or lack the means to implement) these
procedural provisions. In some cases, traditional national standards bodies (e.g. ISO member bodies) are unwilling to interact with non-traditional standards bodies developing ecolabels, and vice versa. As a result, it is often very difficult for producers in one country to obtain timely information on the existence or specific requirements of an ecolabel in another country.

[ISONet (the ISO Information Network) is an agreement between standardizing bodies to combine their efforts in order to make information on standards, technical regulations and related matters readily available whenever it is required. See http://www.wssn.net/WSSN/RefDocs/isonetdir/introduction.html .]


Article 5.1.2 of the TBT Agreement requires WTO members to encourage non-governmental standards bodies operating within their territory to ensure that conformity assessment procedures are no stricter than necessary.


The cost of third-party certification has been identified generally as a particular concern of SMEs and low-cost producers in developing countries. From a trade barrier perspective, the important issue with regard to certification costs is whether these costs are relatively higher in developing countries than in developed ones. Statistically significant data on the costs of certification does not exist, but it is widely accepted that certification costs are a function of:

• the availability of domestic certification (and hence accreditation) services;

• the size of the facility; and

• the gap between existing practices and the requirements of the ecolabel.


The accepted wisdom is that conditions in developing countries are such that each of these factors contributes to relatively higher certification costs vis-à-vis those in developed countries. It is also significant that the only conformity assessment procedure accepted by most ecolabelling programmes, and all of the programmes addressed in this report, is independent third-party certification. It would be worthwhile to assess whether some markets would accept second-party certification or self-declarations of conformity for some types of ecolabels under some circumstances.


Article 6.3 of the TBT Agreement requires WTO members to encourage non-governmental standards bodies operating within their territory to be willing to enter into negotiations for the conclusion of agreements on the mutual recognition of conformity assessments procedures. As mentioned above, many ecolabels, including those of the FSC, MSC and FLO, maintain a monopoly over the accreditation of conformity assessment service providers and therefore do not enter into mutual recognition agreements with other competent bodies. FSC auditors are also forbidden from certifying to any other SFM standard. Experience with mutual recognition
agreements is very thin on the ground. However, a system for mutual recognition has been established under the Japanese national organics regulation, whereby Japanese-accredited conformity assessment bodies can enter into ‘trust contract of providing inspection data’ with International Organic Accreditation Service (IOAS)-accredited certifiers in the country of production.

[See, for example, OECD, 2002: Government Regulations Affecting Trade in Products of Organic Agriculture, COM/ENV/TD (2002)86/FINAL, p. 22.]


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NOTWITHSTANDING THESE WTO LOOPHOLES, THE EUROPEAN COMMISSION CONTINUALLY ENDEAVORS TO EXPLOIT THEM IN AS MANY INDUSTRY SECTORS AS POSSIBLE:


See Eco-Fashion or Eco-Fashism: How Involved is the EU Commission in Promoting 'Market-Based' Eco-Labels as Disguised Trade Barriers?
http://itssddisguisedtradebarriers.blogspot.com/2008/03/eco-fashion-or-eco-fashism-how.html

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READERS SHOULD ALSO CONSIDER HOW THE UNITED NATIONS ENVIRONMENT PROGRAM (UNEP) CONTINUES TO PROMOTE NATIONAL / REGIONAL GOVERNMENTAL USE OF SUSTAINABLE DEVELOPMENT-CENTRIC ECO-LABELING SCHEMES AS A FORM OF PUBLIC BEHAVIOR MODIFICATION, APPARENTLY TO EXPLOIT WTO LOOPHOLES


At the World Summit on Sustainable Development in Johannesburg last year, governments urged active work to speed the shift to sustainable production and consumption. They noted
that while all countries must be involved in this effort, the developed countries should take the lead. In February [2003], at UNEP’s Governing Council meeting, ministers voted to strengthen work on sustainable consumption, promote design of sustainable products and services, reinforce voluntary work with business sectors, and increase support for awareness-raising campaigns.


UNEP is also working through the UNEP-SETAC Life Cycle Initiative – and an exciting new project to enhance the image of green lifestyles – to increase the availability and impact of information in this area. As part of the effort to promote more sustainable production and consumption, UNEP has stepped up its activities with the retail sector, whose role lies particularly in helping change consumption patterns.


To realize the importance of this sector, just think about your last retail transaction. It may have involved something as small and simple as a cotton T-shirt or a packet of ground coffee. Or perhaps it was a major purchase – a leather-and-wood armchair or a refrigerator-freezer. We do not ordinarily stop to consider the multitude of environmental and social effects that a single,
seemingly simple transaction can have.


For instance:

resource use – from metal extraction to consumption of water and wood (the latter possibly involving unsustainable forestry);


energy use – by your car if you drove to the store where the purchase was made; by the store itself, any vehicles involved in delivering products to the store, and employees’ personal
vehicles;


by wholesalers;


and by the furniture assembler, leather producer, animal breeder, wood cutter, fabric mill, coffee packager, and so on.


And don’t forget the CO2 emissions connected with all that energy consumption;


waste generation – any packaging you throw away when you get home is just the tail end of a long stream that begins in the mine, the coffee grove, the farmyard or the forest;


negative land use effects – e.g. damage to the landscape from suburban megastores and surface sealing by their huge parking lots;


possibly, dubious labour standards at the store or farther up the supply chain;


the risk of health effects for you and your family, as well as store and supplier employees, if the use of hazardous substances (e.g. arsenic in wood treatment, heavy metals in appliance
manufacture) is involved.


See Shopping for a better world: sustainability and retailing, Industry and Environment Volume 26 No. 1 January – March 2003, United Nations Environment Program at: http://www.uneptie.org/media/review/vol26no1/UNEP0103.PDF .

Former House Science Committee Staffer Solicited ITSSD Post-Hearing Testimony On EU & China Use of Standards as Trade Barriers, But Ignored Findings

[THE FOLLOWING E-MAIL EXCHANGE REFLECTS A SOLICITATION FOR POST-HEARING TESTIMONY MADE BY A FORMER HOUSE SCIENCE COMMITTEE SENIOR STAFFER TO THE ITSSD'S CEO DURING APRIL-MAY 2005]


From : Huxley, Olwen
Sent : Monday, May 9, 2005 6:39 PM
To : Lawrence Kogan
Subject : RE: L. Kogan // information// Follow-up


We usually get a transcripts a few days after, and after a laborious editing process which takes a truly unreasonable amount of time, we have the transcripts ready. Couple of weeks?


OH Olwen F. M. Huxley
Subcommittee on Environment, Technology, and StandardsHouse Science Committee
2320 Rayburn HOBWashington, DC 20515
ph. (202) 225-8844fx. (202) 225-4438


-----Original Message-----

From: Lawrence Kogan [mailto:ssbs_llc@msn.com]
Sent: Monday, May 09, 2005 6:37 PM
To: Huxley, Olwen
Subject: RE: L. Kogan // information// Follow-up


Thank you for sending it. How long after this hearing will the transcripts be available to the public - posted to Committee's website? Have a good evening.


Lawrence A. Kogan
President
Sound Science Business Strategies, LLC
1625 K Street, NWWashington, DC 20006
(C) 609-658-7417 (F) 452-8160
___________________________________


From: "Huxley, Olwen" Olwen.Huxley@mail.house.gov>
To: Lawrence Kogan ssbs_llc@msn.com>
Subject: RE: L. Kogan // information>
Date: Mon, 9 May 2005 17:33:06 -0400>


Hi - I owe you some stuff.


Just so you know, the hearing is now scheduled for 2 pm on Wednesday, rather than 10 am.


Here's the list of witnesses:


Dr. Hratch Semerjian is the Acting Director of the National Institute of Standards and Technology (NIST).


Mr. Joe Bhatia is the Vice President for International Operations at>Underwriters Laboratory (UL). UL is a commercial laboratory company that tests products against U.S. and international standards, headquartered in Northbrook, Illinois.


Dr. Don Deutsch is the Vice President for Standards Strategy and Architecture for Oracle, headquartered in Redwood Shores, California.


Mr. David Karmol is the Vice President of Public Policy and Government Affairs at the American National Standards Institute (ANSI).


Mr. Robert W. Noth is the Manager of Engineering Standards for Deere & Company, headquartered in Moline, Illinois.


Here are the questions:


Dr. Hratch Semerjian, Acting Director, National Institute of Standards and Technology (NIST), Briefly describe how NIST supports standards development and answer the following questions:

1. What is NIST's role in the international standards arena?


2. Describe the Department of Commerce's standards document "Standards and Competitiveness: Coordinating for Results" and the status of the implementation of its recommendations. What remains to be done?


3. How would NIST's FY 2006 budget request improve the U.S. position with respect to standards development? Describe any other NIST standards initiatives that would contribute to the competitive position of U.S. industry.


>-----Original Message----->

From: Lawrence Kogan [mailto:ssbs_llc@msn.com]
Sent: Friday, May 06, 2005 10:48 AM
To: Huxley, Olwen
Subject: RE: L. Kogan // information


Ms. Huxley:


I am looking forward to receiving you witness list and list of questions for next week's hearing.
Also, my co-director and I would like to know how long after the hearing may we provide 'for the record' comments?

Sincerely,

Lawrence A. Kogan
President
Sound Science Business Strategies, LLC
1625 K Street, NW Washington, DC 20006 (C) 609-658-7417 (F) 452-8160


From: "Huxley, Olwen" Olwen.Huxley@ mail.house.gov
To: Lawrence Kogan ssbs_llc@msn. com
Subject: RE: L. Kogan // information
Date: Fri, 29 Apr 2005 17:52:17 -0400


These are all very interesting points that you raise, and they aren't the first time I have heard them.


I would be pleased to meet with you and your co-director. I would suggest Friday of next week, since we have a mark-up on Thursday and everything that happens prior to that will be necessarily mark-up related. If Friday doesn't work for you, we can do it the week after.

OH

Olwen F. M. Huxley
Subcommittee on Environment, Technology, and Standards
House Science Committee
2320 Rayburn HOB
Washington, DC 20515
ph. (202) 225-8844 fx. (202) 225-4438


-----Original Message-----
From: Lawrence Kogan [ mailto:ssbs_llc@msn. com]
Sent: Thursday, April 28, 2005 1:56 PM
To: Huxley, Olwen
Subject: L. Kogan // information


Dear Ms. Huxley:


Please find attached comments I submitted on Monday, April 18, 2005, in response to the recently revised U.S. Standards Strategy drafted by the American National Standards Institute (ANSI). There are also attached weblinks to several papers I have prepared on the subject of EHS regulations and standards being used by the EU as disguised trade barriers.


As you are aware, ANSI is the U.S. National Representative to two ostensibly private non-governmental international standards bodies (the International Organization for Standardization [ISO] and the International Electrotechnical Commission [IEC] that are expressly referenced within the WTO TBT Agreement). The ISO/IEC are charged with developing relevant science and technology-based performance and use orientated international product standards that national governments are supposed to look to prior to enacting national regulations. In fact, with the help of the EU and the UN, the ISO is now in the business of developing food safety and medical device technical standards as well as corporate social responsibility standards. It may eventually get involved in some type of pharma standards, as the WHO isone of many UN agencies that serve as liaison organizations to the ISO.


As you will notice, my comments were prepared in the name of a new NJ-based NGO (a 501(c)(3) charitable, educational, and scientific organization)I have formed with a former European/ UN diplomat that is called: The Institute for Trade, Standards and Sustainable Development (ITSSD).


ITSSD's comments reflect how the EU has skillfully and systematically linked international regulation and standardization, and injected precautionary principle and environment-centric sustainable norms into the international standards development process. The ITSSD believes that ANSI's inability to detect this phenomenon has created serious vulnerabilities that have adversely impacted the U.S. negotiating position at the ISO/IEC. The ITSSD believes that, given the linkage noted above, this has also created serious vulnerabilities for the U.S. government's negotiating positions at the various WTO-relevant intergovernmental bodies in which different U.S. agencies participate. These include the Codex, the IPPC, the OECD and the UN (FAO, WHO, UNEP & CSD, as well as, others - Global Compact Office, UNDP, UNCTAD, UNIDO, etc.).


Perhaps, ITSSD can render assistance to the House Committee on Science in elaborating upon how its comments to the ANSI relate to the China standards issues now being looking into by the Ways and Means Committee...


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http://www.allbusiness.com/manufacturing/3900831-1.html

Olwen Huxley, a professional staff aide on the House Science Committee's subcommittee on environment, technology and standards,...

Publication: Manufacturing & Technology News Date: Monday, March 12 2007


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[THE FOLLOWING DOCUMENTS CONSIST OF: 1) A JUNE 2005 LETTER OF TRANSMITTAL TO THE FORMER CHAIR OF THE HOUSE SCIENCE COMMITTEE OF THE POST-HEARING TESTIMONY PREPARED BY THE ITSSD'S CEO; and 2) EXTRACTS OF SAID TESTIMONY].


http://www.itssd.org/Correspondences/ITSSDlettertoHouseSubcommChairEhlers.pdf


June 3, 2005


The Honorable Vernon J. Ehlers,
Michigan, Chairman
House Science Committee,
Subcommittee on Environment, Technology, and Standards
2320 Rayburn House Office Building
Washington, DC 20515


Dear Mr. Ehlers,


Please find attached ‘post-hearing’ testimony that we have prepared for submission to the Subcommittee on Environment, Technology and Standards in connection with the recent hearing on Standards that took place on May 11, 2005. We would appreciate your Subcommittee’s inclusion of this testimony within the official ‘hearing record’.


The Institute for Trade, Standards and Sustainable Development, Inc. is an independent and nonpartisan not-for-profit organization dedicated to the promotion of a positive global paradigm of sustainable development consistent with World Trade Organization (WTO) principles. We have undertaken considerable research and public outreach activities to highlight the increasing use of disguised regulatory trade barriers cast in the form of overly stringent environment, health and safety regulations and standards that are justified by reference to the need to achieve ‘sustainable development’. We have both observed and analyzed how such measures have increasingly threatened U.S. products and technologies and the science and intellectual property rights-based legal and economic frameworks which are critical to maintaining U.S. global competitiveness in the future.


We thank you for the opportunity to submit this testimony, and we remain at your
Subcommittee’s disposal should it be interested in speaking with us further about these issues.


Very truly yours,


Lawrence A. Kogan, Esq.
CEO

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http://www.itssd.org/Correspondences/LKogan-ITSSDtestimony-6-3-05-HouseScienceComm.pdf


Europe, China and the Use of Standards as Trade Barriers How Should the U.S. Respond?


Lawrence A. Kogan, CEO, Institute for Trade, Standards and Sustainable Development, Inc.


House Science Committee, Subcommittee on Environment, Technology, and Standards


June 3, 2005


Mr. Chairman, and ranking members of the Subcommittee, my name is Lawrence Kogan, and I am CEO and Co-Director of the Institute for Trade, Standards and Sustainable Development, Inc. (ITSSD). The ITSSD is an independent and non-partisan not-for-profit organization dedicated to the promotion of a positive paradigm of sustainable development consistent with World Trade Organization (WTO) principles. The ITSSD is pleased and honored to comment about the subtle, complex and significant challenge posed to U.S. global economic and technological competitiveness by the growing use of new market access barriers. During the past several years, it has become more obvious that such disguised trade barriers are typically cast as overly stringent and extra-territorial environment, health and safety (EHS) technical regulations and product and process standards, which have the effect of protecting underdeveloped, lagging or ailing industries in other countries.


Our research has revealed that most such measures are premised on an evolving European norm known as the precautionary (‘better safe than sorry’) principle. As employed by the European Union (EU) the precautionary principle severely restricts or altogether bans the introduction of a number of new and existing U.S. products, substances, processes and technologies into the marketplace, unless they have first satisfied rigorous pre-market authorization requirements that are in excess of relevant international standards, but which are not scientifically, economically or technically justified. Once permitted into the marketplace, they are then subject to overly stringent post-market testing requirements that are also in excess of relevant international standards. In addition to ignoring free market principles, such rules arguably also violate the terms of three WTO agreements: the Sanitary and Phytosanitary (SPS) Agreement; the Technical Barriers to Trade (TBT) Agreement; and the General Agreement on Tariffs and Trade (1994).


As requested, my testimony will respond to the following two sets of questions posed by the Subcommittee to the list of witnesses that testified during the May 11, 2005 hearing:


1. What has been China's and Europe's approach to the development and use of standards? How is this approach changing international standards development in organizations such as the International Standards Organization, and through bilateral relations with other countries? What are the implications for U.S. trade with China and the rest of the world?


2. Based on the U.S. Standards Strategy that ANSI has been developing, what should the Federal Government, States, U.S. standards development organizations, and companies be doing to reduce their vulnerability to the use of standards as trade barriers, and how could they promote the adoption of non-exclusionary standards in the global marketplace? How should these efforts be coordinated?....

ITSSD CEO Identifies the Foreign Standards Threat Posed to US Global Technological & Economic Competitiveness as Early as 2003

http://www.itssd.org/Issues/GBDSeminarOutlineII-7-14-03.pdf


Standards, Regulations, and the Global Trading System


Global Business Dialogue Seminar Outline


By Lawrence A. Kogan, Esq.


National Foreign Trade Council


July 14, 2003

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http://www.itssd.org/Programs/ANSIIntlPolicyCommMtgOct03.pdf



Draft Agenda for the October 2, 2003 ANSI International Policy Committee (IPC) Meeting for Consideration at the October 2003 INCITS (InterNational Committee for Information Technology Standards1) Standards Policy Board Meeting


...
2.4.1 Europe & and the ANSI Regional Standing Committee for Europe/Middle
East/Africa


Included as a topic under this item are...



...another recently released report from the Washington Legal Foundation, following up on a report issued earlier this year.


This latest installment in WLF's educational Working Paper publication series, "'Unscientific' Precaution: Europe's Campaign to Erect New Foreign Trade Barriers", (provided as document IPC025-03) was written for WLF by international trade law expert Lawrence A. Kogan on behalf of the National Foreign Trade Council.


Though no action is equired, IPC members are encouraged to express their views on these papers.