Product certification prog-ram The Commission rendered and advisory opinion involving a trade association s…

No. 152. Product certification prog-ram The Commission rendered and advisory opinion involving a trade association s proposed use of a certification mark which is designed to upgrade the safety and quality of a particular product. Specifically, the Commission was requested to rule upon the following two questions:

1. Can the association require non-members to join the association as a condition precedent to using the association s patented certification mark? 2. If not, can the association charge non-members a higher fee than members for use of the mark? In response to the first question, the Commission said that it should not grant approval to a program where the "trade association requires non-members to join the association as a condition to using the association s patented certification mark because there is at this time insuffcient information to evaluate the impact on competition of such a restriction." Commenting further on the first question, the Commission sent the requesting party a copy of Advisory Opinion Digest No. 96 l70 F. C. 18781. dealing with a closely related situation where the Commission did give its apaproval to a similar program on condition that a11 competitors be given unrestricted and nondiscriminatory access to its certification program whether they were members of the association or not. In response to the second question, the Commission reached the following conclusion:

. . . non-members of the association may be charged a higher fee than mem. bers provided it represents no more than a reasonable differentia1 to insure that members and non-members of the association alike pay an equal share of the costs necessary to support the program. In short, if members of the association by payment of dues or other assessments have borne some of the cost of the program not reflected in the certification fces charged them then the payment of that portion of the costs may be reflected in the fees charged to non-members. This advisory opinion of course can not give you more than general guidance on this matter and the question of what is a reasonable djfferential \vould have to be decided on the facts of each case.

DISSENTING OPINION By JONES CMJ1,1nissioner:

I have no quarrel with the substance of the Commission s response to the applicant Association s request for an advisory opinion on two questions relating to the availability to nonmembers of the Association of the certification mark to be adopted by the Association relative to a particular type of safety device and to the right of the mark by non-members. However, I am dissenting from this opinion because in my view the Commission should not have responded to what are obviously peripheral aspects of the Association s certification program without full knowledge of the substantive features of the program. The members of the applicant trade association manufacture the safety device involved. They describe their products as "high performance" ones which are used in particular fields. The certifi- ADVISORY OPINION DIGESTS 1055 cation program which gave rise to the advisory opinion request is said to have been adopted in order to upgrade the quality of the safety device involved and to insure that no one requiring such a product places too great a reliance on an inadequate product. We do not know whether the certification mark represents minimum or maximum safety standards, nor do we know whether the product test standards being used were designed for the particular uses for which this product might be purchased. It is highly possible that a product failing to qualify under the mark may be entirely adequate for some uses though not for others. It is equally possible that a product meeting the standards might be quite inadequate for other purposes. Thus, some manufacturers who make adequate products for certain purposes might nevertheless be excluded from obtaining the mark. We also have no information on the procedures used in formulating the standards on which the mark wil be based. Finally, we are not informed as to how the mark might be advertised and what the impact of the name of the standards institute which formulated the standard might have on the public s attitude towards the Association s mark. In short, we are asked to give an opinion on a peripheral aspect of this program when the program itself, either in its conception or in its administration, might be in violation of the laws administered by this Commission. I do not believe that we should give advisory opinions under such circumstances. Commissioner REILLY concurs with the dissenting statement. (File No. 683 7042, released Dec. 13, 1967.