US accreditation bodies benefit from an assortment of superpowers granted to them by courts based on “case law.” Within the US legal system, many decisions are driven by prior case law, allowing that when one court rules on a case that ruling may be used by other courts to decide similar cases.
When US accreditation bodies find themselves sued in court, they reflexively invoke prior case law, even though it largely pre-dates contemporary accreditation practices and has little to do with the ISO certification scheme. Nevertheless, these arguments have traditionally found support by the courts. Key among such cases is Foundation for Interior Design Education Research v. Savannah College of Art & Design from 1998, which was then affirmed by a Federal circuit court in 2001. In that case, the parties argued over educational accreditation after the Foundation denied accreditation to the Savannah College’s Department of Interior Design. The courts ruled that accreditation bodies — within the higher education field, at least — earn great “deference” in their decisions which cannot then be overruled by a court.
That decision was, itself, based on additional such cases within the education accreditation scheme. Quoting the case Parsons College v. North Central Association of College and Secondary School, from 1967, the courts ruled on Foundation, saying,
Courts give accrediting associations such deference because of the professional judgment these associations must necessarily employ in making accreditation decisions. In considering the substance of accrediting agencies’ rules, courts have recognized that “[t]he standards of accreditation are not guides for the layman but for professionals in the field of education.”…Consequently, courts are not free to conduct a de novo review or to substitute their judgment for the professional judgment of the educators involved in the accreditation process.
Despite the fact that such cases were (a) specific to educational accreditations and (b) pre-dated the growth of the ISO accreditation scheme, cases against ISO accreditation bodies nevertheless rely on this case law. This is due to a combination of factors. First, judges and court clerks know little about the ISO certification scheme, and therefore rely on a “closest fit” when searching for relevant case law. Second, attorneys understand the ISO scheme even less, and so fail to craft cogent arguments as to why cases like Foundation or Parsons are irrelevant.
As a result, contemporary cases have ruled on the side of ABs, claiming that they cannot be held accountable for their accreditations since these are just “non-actionable statements of opinion.”
Claims of “Assurance” Will Confront Case Law
Armed with a handful of such victories, the US accreditation bodies have acted as if they are indestructible. That hubris, however, may lead to the overdue re-examination of the case law, leading courts to apply an updated view. Finally, accreditation bodies may find themselves held accountable.
Looking solely at the contemporary marketing materials of ANAB, the US’ largest accreditation body, we see them openly declaring that their accreditation mark is not a statement of opinion, but an actual “assurance.” Repeatedly, ANAB uses two words — “ensure” and “assure” — to describe the value of its mark.
A quick trip to the dictionary, in case anyone needs it:
- Assure: to make sure or certain; to make (something) certain
- Ensure: to make sure, certain, or safe; to make (something) sure, certain, or safe
[Sources: Merriam-Webster and Brittanica.]
In all cases, these words are intended to communicate a definite thing and leave no ambiguity behind. It’s a very risky position to take connecting the words to accreditation, but ANAB is doing it. Good lord, are they doing it… over and over.
Here are some recent examples:
The problem ANAB faces is one day arguing in court that its decisions were just “opinions” when opposing counsel can show a raft of overt and aggressive marketing claims by ANAB that state otherwise.
Consider the case in Nevada, where an ANAB-accredited cannabis testing lab faces a full-on ban and criminal fines for having falsified test results. ANAB is sticking by its client, allowing them to use the ANAB name and mark in their defense, rather than cutting them loose given the weight of evidence provided by the State. If someone dies from tainted cannabis, ANAB can be made part of any resulting lawsuit or criminal complaint. Any claim that the accreditation granted to the lab was just an “opinion,” or a “snapshot in time” solely of the conditions during the actual ANAB audit, will be countered by ANAB’s claims above that its cannabis lab accreditation “ensures [cannabis products] are safe for consumption“:
Consider also the two cases related to ANAB-accredited forensics labs; one in Rhode Island and one in Texas. The labs are accused of mishandling samples and poor quality practices, but ANAB’s marketing clearly states that its ISO 17025 accreditation provides “3rd party assurance of the quality of the laboratory” and that “getting accredited will assure your customers of your organization’s reliability and competence.”
And ANAB’s overcaffeinated claims don’t stop there. They also think they are legal experts, judging from this post from February 2022. where ANAB boasts you can use their mark as part of your defense. (While also claiming they “assure the competency of certification programs.”)
ANAB’s next trip to court may be an interesting one.
Christopher Paris is the founder and VP Operations of Oxebridge. He has over 35 years’ experience implementing ISO 9001 and AS9100 systems, and helps establish certification and accreditation bodies with the ISO 17000 series. He is a vocal advocate for the development and use of standards from the point of view of actual users. He is the writer and artist of THE AUDITOR comic strip, and is currently writing the DR. CUBA pulp novel series. Visit www.drcuba.world
