The International Organization for Standardization (ISO) is creating or revising international standards on a number of topics important to companies operating in the U.S. and abroad, including environmental, occupational safety, compliance and anti-bribery management systems. ISO has also just begun a review of the controversial ISO 26000 standard on social responsibility.
These ISO standards are important for a number of reasons. For example, they are becoming a condition of doing business in many markets. They also influence national and international policy. In the U.S., Federal agencies are obligated to take consensus standards into account pursuant to the National Technology Transfer Act, and national requirements based on ISO standards are presumptively valid under WTO/TBT rules in the event they are challenged as non-tariff trade barriers. ISO standards are also influential in regions that do not have an established national counterpart (legal or otherwise) to the subject matter of the standard.
ISO 14001 – Environmental Management Systems
ISO is in the process of the first major revision ISO 14001, the EMS standard that is widely used by the private sector in the U.S. and around the world. The proposed changes to ISO 14001 will have a significant impact on facilities that wish to maintain their ISO 14001 certificates, which are verified through third-party auditing (approximately 25,000 in North America and 250,000 worldwide). These changes will also reverberate through the regulatory and enforcement space, since ISO 14001 is an accepted template for environmental compliance systems in the context of resolving enforcement actions.
The most recent revised draft is the result of negotiating sessions that were concluded in early October. It includes more specific and prescriptive requirements that depart from the existing, primarily flexible, standard. Some salient features of the draft include increased emphasis on:
- sustainable development, including specific mention of issues such as sustainable resource use, climate change mitigation and adaptation, and protection of biodiversity and ecosystems;
- value chain management outside the boundaries of the organization;
- integration of environmental issues into organizational strategy; and
- more transparency on how environmental issues are managed, including additional detail on taking into account the views of interested parties and external communication on environmental issues.
If adopted, these (and other) changes would result in closer scrutiny of ISO 14001-certified facilities by third-party auditors, and less flexible requirements where ISO 14001-type EMSs are implemented in the context of resolving enforcement matters.
Occupational Health and Safety Management Systems
ISO has launched an effort to create an OHSM standard. This has been a controversial topic, with an initial effort being rejected several years ago. This project is still in its early stages, but areas of potential dispute are already visible. For example, the International Labor Organization is going to be a very active participant, and is looking to use the ISO process to propagate the ILO’s international labor standards (including many that have never been adopted in the U.S.).
ISO Standards on Compliance Programs and Anti-Bribery Management Systems
The Compliance Program initiative was launched by Australia, moving into the same space currently addressed in the U.S. by the Sentencing Commission’s criteria for effective compliance and ethics program. The Anti-Bribery Management System effort is being led by the UK, based on an existing UK standard that is explicitly aimed at satisfying the defense under the UK Bribery Act of having “adequate procedures” in place to prevent bribery. These standards will affect companies with global compliance programs and that are encouraging their value chains to implement compliance programs.
What Can Be Done?
The private sector can engage in effective advocacy in the ISO standards process and can affect the results of the standards creation process. Please contact the GT lawyer with whom you have been working or Chris Bell if you have any questions. Chris has been representing clients in the ISO standards-writing process for 20 years, was directly involved in drafting the ISO 14001 EMS standard and several other environmental standards, is currently part of the U.S. team negotiating standards on nanotechnology, and is negotiating an ISO standard on sustainable development. Chris is part of the GT team that assists clients in evaluating and improving their compliance systems, including compliance and ethics programs generally, and programs at specific topics such as environmental, occupational safety and anti-bribery/FCPA.