STEERING ASSOCIATION STANDARDS AND CERTIFICATION PROGRAMS
CLEAR OF ANTITRUST VIOLATIONSWhile courts have recognized product standardization and certification programs as legitimate and valuable activities, these activities can also have anticompetitive effects. Where standard-making programs impede competition, raise barriers to entry into a field or industry, restrict innovation or otherwise restrain trade they may be challenged as violating antitrust laws. Similarly, certification programs which products or services are tested to determine if they meet a given standard, may be considered antitcompetitive if the certification program discriminates against non-participants or exclude non-certified good.
Following are 3 QuickTips to keeping your association’s standards and/or certification programs clear of antitrust violations:
Association certification programs may also give rise to product liability claims based on an association’s claims with respect to products tested and/or certified. Care should be taken when making such claims.
Clearly state the purpose(s) of the standard and/or certification program. The purpose should be objective and reasonably related to a legitimate, non-competitive purpose.
If possible, have standards testing conducted by an independent laboratory or organization. Representatives of all makers of the products or services subject to the standards program should be included on the committee supervising the program.
Open the standard and/or certification program to both members and non-members.
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Antitrust Audits: Do you need one? How to get started