The realm of standardization from the legal perspective

June 30, 2019

 

Establishing standards for products and services in Israel is a fascinating process from the legal perspective. Many people may not realize it, but Israel's Standards Institution uses almost 1,000 different committees involving over 3,000 people in formulating and establishing standards. The people on these committees hail from every sector: government, local authorities, organizations of engineers and consumers, industry, the Federation of Chambers of Commerce (representing importers), the Builders Association, other federations and associations, and laboratories responsible for testing and inspecting merchandise. 

The committees involved in establishing standards operate in a pyramidal structure, at the top of which is a coordination committee. Beneath it are the central committees, technical committees and committees of experts. Aside from the Coordination Committee, which is single entity, each of the 18 sectors of standardization has its own Central Committee, and under each of these are Technical Committees focusing on narrower aspects of the sector. Each Technical Committee forms an Experts Committee for the topic in which the standard engages. The Central Committees decide which sectors need standards to be written, or which require their existing standards to be updated, and give the mandate to the various Technical Committees. Each Technical Committee establishes an Experts Committee for each area in which a standard needs to be prepared. The Experts Committee writes a draft standard and publishes it for public comment, receives the comments and relates to them, amends the draft standard if necessary, and hands it over to the Technical Committee for discussion and approval.

If the Technical Committee is satisfied with the draft standard, the draft passes for final approval to the director-general of the Institution and an announcement of its entry into force is published in Reshumot (the official State of Israel gazette). Any objections that may be made are ruled upon by the appropriate Central Committee.

 

In cases where official standards, which are binding, are revisited, the matter does not end with the Standards Institution. The decision to declare a standard to be official is the remit of the Ministry of Economy and Industry. But in effect, the task of preparation falls on the shoulders of the Commissioner of Standardization, an officer within the Ministry of Economy and Industry.

 

Beyond the official standards being generally binding and some standards that become binding by the force of various regulations, there are also non-binding standards, called voluntary standards. The voluntary standards are also of economic significance, as agreements often require suppliers to use only products compliant with standards, or to carry out work in compliance with standards. A person buying new real estate property is entitled to have every item therein comply with all standards, and for all work involved in its construction to comply with the standards applying to the items.

 

A local government building a playground should ensure that every item there complies with the standard, was erected by the standard, and is maintained according to the provisions of the standard. Each year the local authority should ensure that an approved laboratory checks the playground's compliance with the standard, and each month an inspector on its behalf shall inspect the installations and ensure the repair of any wear and tear. If, heaven forbid, a child is injured while playing in the playground, the first question arising in court will be about the standard, and whether the local authority can prove that the premises had been inspected in a timely manner.

 

Standardization has far-reaching economic implications. If the standard is official, no product that must comply with the standard can be manufactured unless it meets that official standard. If the standards in question are referred to by the planning and building regulations, then any change in the standard is binding upon everyone engaged in construction, and in all contexts of construction: from plumbing to electrical systems, from fire retardation to acoustic insulation materials, building stability, elevators, air conditioning systems, "green" systems and so on. Any change to the standards in any of these areas has far-reaching implications for the entire economy.

 

Approved laboratories carry out the testing to check whether products comply with the applicable standards. An importer bringing a product to Israel to which an official standard applies must receive certification of compliance with the official standard from the Standards Institution. Granting such certification often requires testing by an approved laboratory. In other cases, presenting documents attesting to tests done abroad may suffice and sometimes a statement is deemed sufficient.

 

An importer can make life easier for itself by connecting the manufacturer to the Standards Institution "Standards Mark" system. In this case, the manufacturer (whether Israeli or foreign) will be inspected by the Standards Institution, in a process of "preliminary checks". During this, the Standards Institution will test the product in the lab to see the extent to which the manufacturer complies with quality assurance, with the aim of assuring that all products meant for inclusion in the Standards Mark are manufactured in the future according to the requirements of the standard.

 

Once the manufacturer has completed the stage of preliminary checks, the Professional Committee, consisting of representatives of the public, discusses the matter. If the committee decides it fitting to recommend that the manufacturer's product receive a Standards Mark, it conveys its recommendation to the Permits Committee (of which four of its five members are elected from the public), which makes the final decision whether to grant the mark.

 

The permit is an important asset for manufacturers or for importers handling the permit process on behalf of overseas manufacturers. It constitutes an asset to marketing, as the manufacturer can then mark every product with the Standards Mark, with which every Israeli is familiar. Also, in the case of an importer, the existence of a Standards Mark will facilitate import inspections: as long as it passed the Standards Mark tests, it does not have to undergo the usual import tests.

 

The activity of the Standards Institution is extraordinarily complicated from the legal perspective. Our involvement included assisting the Standards Institution in preparing hundreds of standards and their interpretation, laying down principles for working on standards, the interpretation of specific standards, and the interpretation of the standards system in general (crossing points between standards, and so forth). We have also contended with High Court applications regarding the validity of standards and their interpretation.

 

The interpretation of standards has implications for tests of compliance with a standard, which specific tests a manufacturer can be required to undergo, and how they should be performed. It has implications for every manufacturer and importer handling the products to which the standard applies. There is no standard that is not subject to interpretation, and that interpretation can mean the difference between approval of a product's manufacture or import or its disqualification.

 

A great many products are subject to multiple standards and in some cases, conflict may ostensibly arise regarding the requirements of the various standards. Some standards apply only to certain products and some have broader implications applicable to a whole group of products. Some standards refer to other standards. Sometimes an official standard may refer to an unofficial one. Sometimes new standards refer to standards that have been canceled.

 

The standardization activity of the Standards Institution is akin to the legislative activity of the Knesset, except that its legislation is technological. Since much of Israel's standardization constitutes adoption of international standards, it is the accepted practice to adapt the standards to national requirements, to render them compliant with Israeli legislation or other official standardization that applies in Israel.

 

The Standards Mark system is governed by regulation (the Standards Mark regulations), which requires legal counseling. There are cases in which dispute may arise as to whether a manufacturer is entitled to receive a Standards Mark permit. There are cases of requests to cancel a permit already granted. Granting and canceling permits have legal, economic and commercial implications. There are products that must bear a Standards Mark and its revocation constitutes, in effect, a death knell for the manufacturer.

 

The public may not realize it, but a new elevator may not be used until it has been inspected by the Standards Institution. Once the Institution has approved its use, the elevator must be inspected every six months by an elevator inspector certified by the government. No elevator may be used unless it has received a Standards Mark from the Standards Institution.

 

All the above has regulatory implications as well. Our firm has been accompanying legislation related to standardization for decades.

 

Over the years there have also been applications to certify class action motions in this context: regarding usage approval for elevators, regarding selling the standards to the public, and regarding the award of Standards Marks to police enforcement gear.

 

Class action motions are constantly filed against food manufacturers or importers, usually based on the product's failure to comply with the description on its packaging, as the standard requires.

 

The above casts light on the various issues involved in setting standards in Israel, and how we can be of assistance to manufacturers, importers, consumer organizations, local authorities, laboratories testing compliance with standards, and all users of standardization. Our firm has been providing regular legal services to the Standards Institution itself for over 40 years, representing it in its regulatory activity, including negotiation with the various ministries and appearing before Knesset committees. We have also represented the Institution throughout the years in both applications to the High Court of Justice and administrative motions and civil claims. This activity in the realm of standardization, on top of our many others, has brought us immense experience in the realm of regulation as well.

 

Adv. Yoram Samuel served as legal counsel to the Standards Institution until 2013. Following his appointment by the Institution as an internal legal counsel, the firm continued to accompany the Institution, providing legal services in a vast range of areas. In fact, from then to this very day, we are the only legal firm in Israel with expertise in matters of standardization.

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