What to Do When Things Go Wrong: NSF Appeal Procedures for Product Certifications
So, you have a product that you're trying to get certified (or recertified) by NSF International, and you're expecting no trouble at all, when–boom–the roof falls in and NSF informs you that your product failed to pass a certification standard test. The results don't make sense and you can't believe it's possible. What to do? Give up and go home? Reformulate your product? Try again?
Without a doubt, a dialogue with NSF is necessary and desirable under these circumstances. However, you should take a number of precautionary steps to protect your interests. You should also be aware of your rights to appeal an NSF determination that you believe is amiss.
The most important thing you can do to protect your product against test results gone awry is to hold for yourself samples of the same product batch that NSF intends to test. If any surprises result, you can then have an independent analysis conducted to see if the results are the same as those generated by the testing program. NSF won't accept your results, if different, but they could be helpful in demonstrating that a potential problem exists.
In addition, it is important to keep a full and complete record of events related to an adverse determination. Know what samples were taken for testing and when; obtain a complete analytical report of the testing that was done; and keep records of all telephone conferences with the NSF staff.
Appealing Adverse Determinations
Following these and other practices are important first steps in resolving situations that may become problematic during the certification process. In our experience, most analytical issues that arise on product certifications can be worked out amicably and satisfactorily with third party certification groups. However, when that is not the case, it is important to be aware of your right to appeal a staff determination that you consider unjustified. In this regard, just about all third party certifiers have an appeals process available; we explore here, as an example, the one afforded by NSF, which operates one of the larger certification programs for food-contact products in the United States.
For products that are subject to certification by NSF under a standard, a company or other directly affected party may appeal to NSF if the products fail to meet the standards for certification or recertification, or if the company is otherwise adversely affected by a decision or action of NSF related to its certification.
NSF's General Policies manual sets out a three-tiered appeals process. The first stage of the appeal consists of an administrative review by NSF (see GP No. 49). If a company is not satisfied with the results of the administrative appeal, it may then file a formal appeal through an appeals officer (see GP No. 50). Finally, if the results of the formal appeal are not favorable, a company may proceed to a final appeal by a panel (see GP No. 51). According to NSF's policies, the appeals may only be filed in that order; in other words, a company must go through the administrative review process to be eligible to file a formal appeal. Each stage of the appellate process is discussed in detail below.
A request for administrative review must be filed in writing with the secretary of the Certification Council of NSF, and must state the basis for the request.
Within 10 calendar days of receipt of the request, NSF must acknowledge its receipt, and provide the name of the NSF staff person assigned to the review. Within 30 calendar days of receipt of the request, NSF must inform the appealing party of its decision in writing.
NSF may, in its discretion, hold in abeyance any enforcement action against a company until the administrative review is complete.
Formal Appeal Through an Appeals Officer
If not satisfied with the results of the administrative review, a request for a formal appeal may be filed with the president of NSF. The request must be in writing, must state the basis for the appeal, and must be received by NSF within 30 calendar days of the appellant's receipt of the written results of the administrative appeal. Although there is no fee for requesting an administrative review, NSF charges $5,000 for the formal appeal. However, if the president rules in favor of the appellant, NSF will reimburse this fee. NSF will acknowledge the request for formal appeal within 10 calendar days of receipt.
If the issue cannot be resolved to the satisfaction of the appellant by NSF staff, the president will then make a determination as to whether the appeal relates primarily to:
- the language of an NSF standard, or an application or interpretation thereof; or
- an NSF certification policy, or an application or interpretation thereof.
For NSF standards issues, the appeal may be referred to the NSF joint committee that has jurisdiction over the particular standard. For NSF certification policy issues, the appeal may be referred to the NSF Certification Council. If the appeal is not referred to either of these groups, the president will appoint an appeals officer from the NSF staff and a "formal appeal meeting" will be held.
In preparation for the formal appeal meeting, the appellant and NSF must prepare and submit written statements supporting their positions within 45 calendar days of receipt of NSF's acknowledgment of the formal appeal. Within seven calendar days of receipt of these materials, the president will distribute them to the appeals officer and both parties, and a meeting date will be set. Unless the parties agree otherwise, the meeting will occur within 30 days of distribution of the written materials.
According to NSF's policy guideline (GP No. 50), the formal appeal meeting is not considered a legal hearing. Thus, each party may be represented by only one person for purposes of oral presentations, and legal counsel may not attend. Following the meeting, a written recommendation will be provided to the president within 15 calendar days of the meeting. The president's decision is then provided to both parties within 30 calendar days of the meeting.
As with the administrative review, NSF may, in its discretion, hold in abeyance any enforcement action against a company until the formal appeal is complete.
Final Appeal by a Panel
If the appealing party is still not satisfied with the results of the review, it may then file with the president of NSF a request for a final appeal by an appeals panel. The final appeal must be in writing, and must be received by NSF within 30 calendar days of receipt of the president's decision in the formal appeal. In this case, the fee for filing the appeal is $10,000, but if the decision is for the appellant, the appellant will be reimbursed this fee as well as the $5,000 fee charged for the formal appeal. NSF will acknowledge the request for final appeal within 10 calendar days of receipt.
The final appeal is heard by a three-member appeals panel. The members of this panel are appointed by the chair of the Certification Council from a list of acceptable candidates agreed to by both parties. (GP No. 51 sets forth a procedure for selecting acceptable candidates.) Written submissions are prepared and submitted to the secretary of the Certification Council by each party within 15 days of NSF's acknowledgment. The distribution of materials and scheduling of a meeting follow the same schedule as set forth for the formal appeal. The final appeal meeting is not a legal hearing, but unlike the formal appeal, legal counsel may attend, provided both parties have agreed in advance; legal counsel may not make the oral argument. Each party may be represented by only one person for purposes of oral presentations.
The appeals panel will provide a written recommendation to the president within 15 days of the meeting. If the appeals panelists do not agree, the majority opinion will be reported. The president's decision will be reported to both parties within 30 calendar days of the meeting.
As with the other two appeals stages, NSF may, in its discretion, hold in abeyance any enforcement action against a company until the final appeal is complete, and a decision has been rendered.
Appealing a determination by NSF is something to be avoided–it is much better to try to work out any disagreements in a manner acceptable to both parties. However, if required to do so, it is important to know the options that are available.