I recently received a message on LinkedIn from an attorney. That always gets my attention. Many consultants gravitate toward special expert witness work, but I have no interest in it. In court, your client’s attorney will try to convince the jury that you were pivotal in all of the latest discoveries in particle physics, while the attorney for the other side will try to get the jury to question whether or not you were able to tie your own shoes that day. No thanks!
Yet, I was intrigued. What had brought my name to the forefront? It turned out that the inquiry was about an article that I had written 20 years ago about product approval, listing and labeling. One of the principal issues that I dealt with was the CE mark, which I have even heard called the CE listing. The article had been posted to a website seven years after I wrote it, and I had no idea that it was still out there.
The question was whether or not the positions I took in the original article are still valid today. This presented an unusual opportunity. Since I am always in search of a good article idea, I decided that it was time to revisit and update this topic. I could also use this forum to be an expert witness without anyone knowing how I tied my shoes this morning.
Listed versus labeled
The discussion relies on a few important definitions, including approved, field-labeled, listed, labeled and nationally recognized testing laboratory (NRTL).
To start off, Section 110.2 of the National Electrical Code requires the conductors and equipment required or permitted by the Code to be approved.
Approved is defined as acceptable to the authority having jurisdiction (AHJ). The AHJ has the final word. There are a growing number of places in the Code where listed equipment is required.
“Listed” is defined as “equipment, materials or services included in a list published by an organization that is acceptable to the authority having jurisdiction and concerned with evaluation of products or services, that maintains periodic inspection of production of listed equipment or materials or periodic evaluation of services, and whose listing states that either the equipment, material, or service meets appropriate designated standards or has been tested and found suitable for a specified purpose.”
There are several places in the Code where equipment is required to be listed and labeled. “Labeled” is defined as “equipment or materials to which has been attached a label, symbol, or other identifying mark of an organization that is acceptable to the authority having jurisdiction and concerned with product evaluation, that maintains periodic inspection of production of labeled equipment or materials, and by whose labeling the manufacturer indicates compliance with appropriate standards or performance in a specified manner.”
But wait, isn’t that nearly the same as listed? Shouldn’t the equipment simply be required to be labeled? Perhaps. A better solution might be a general requirement that equipment that is listed have a certification marking of the entity that listed the equipment on the product or the smallest unit shipping container.
What you don’t see in either definition is NRTL. This term, undefined in the NEC, refers to a program of laboratory certification that is administered by the Occupational Safety and Health Administration. OSHA created the program in 1988 to certify laboratories that have the technical expertise necessary to evaluate compliance with consensus certification standards. Does the Code require products to be listed by an NRTL? Maybe yes and maybe no. The Code specified that it be an organization that is acceptable to the AHJ. It doesn’t specifically call for NRTL certification. The jurisdiction may use the NRTL certification program, in which case the answer is yes. If they have their own certification program, the answer is no.
The OSHA program certifies the organization performs “certification for certain products to ensure that they meet the requirements of both the construction and general industry OSHA electrical standards. Each NRTL has a scope of test standards that it is recognized for, and each NRTL uses its own unique registered certification mark(s) to designate product conformance to the applicable product safety test standards.” This means the laboratory lists or certifies products for use in the workplace. The certification does not apply to consumer products. It also means that they are recognized by OSHA for testing products to certain standards. In other words, a laboratory may have status as an NRTL for some standards but not others. Such a limitation in scope is quite common. The OSHA website provides a list of the NRTLs including a complete list of standards that OSHA approves the laboratory for.
Sometimes, AHJs encounter unique equipment. What does an AHJ do if the equipment is not listed? Section 110.3(A) “Examination” provides some general criteria that should be part of any equipment evaluation. An AHJ could require equipment to be listed to ensure equipment is safe and that it can be installed in accordance with the NEC . When equipment that is not listed is encountered, an AHJ may examine it or may require a field evaluation of the equipment to determine compliance. Successfully evaluated equipment can be field-labeled. Article 100 defines “field labeled,” as applied to evaluated products, as “equipment or materials to which has been attached a label, symbol, or other identifying mark of an FEB indicating the equipment or materials were evaluated and found to comply with requirements as described in an accompanying field evaluation report.”
The electrical product standards for the use of the CE mark are European norms, which are often based on standards of the International Electrotechnical Commission.
NFPA 790, “Standard for Competency of Third-Party Field Evaluation Bodies,” provides a framework for judging field-evaluation entities. NFPA 791: “Recommended Practice and Procedures for Unlabeled Electrical Equipment Evaluation” covers recommended procedures for evaluating unlabeled electrical equipment for compliance with nationally recognized standards. It is a companion document to NFPA 790.
Many of the laboratories that provide listing services also provide field-evaluation services. Their experience with the full certification process uniquely qualifies them to perform field evaluations. However, there are differences between field evaluation and a full product certification. The listing process in the United States involves the evaluation of representative samples of the product. Some samples may be damaged or destroyed during the evaluation. This more rigorous phase of testing is unlikely to take place in field evaluations because they are often performed on single pieces of equipment. Listing also involves ongoing market surveillance.
Follow-up services provided by the testing organizations reviews the current state of production by the manufacturer. The person performing the evaluation will review the file from when the product was evaluated to ensure that the product continues to be manufactured in accordance with its listing. Electrical inspectors are the eyes and ears in the field who report field problems to the listing body. With a self-certification, there is no outside party that will determine if there have been changes made to the product.
A lot of products are now available that have the CE mark on them. This relatively new certification in the United States is mandatory in the European Union to indicate that the product complies with European directives.
However, it is important to understand that it is a self-certification, so an independent laboratory is unlikely to be involved in the evaluation. Also, the CE mark is not a listing mark. The certification is often referred to as supplier’s declaration of conformity. Products used in the North American market can have the CE mark on them, but it is independent of the marking for listing.
The electrical product standards for the use of the CE mark are European norms, which are often based on standards of the International Electrotechnical Commission. European electrical systems are typically 50 hertz systems. Most of their nominal voltages are different from nominal voltages in North American electrical systems. Compliance with European standards is no guarantee that products can be used safely in the United States.
Why isn’t self-certification more popular in the United States? The independent review by an unbiased third party is very valuable because even experienced companies may overlook an important safety consideration. I recall seeing a product prototype from a well-respected company that had to be completely redesigned to perform its most basic function.
In 2008, the European Union petitioned OSHA to establish a system of self-certification similar to the European system. Whether the OSHA program is used by a jurisdiction or not, the CE mark is not the equivalent of a listing mark. It does not certify that equipment is suitable for installation in accordance with the NEC . It only certifies compliance with European directives.
OSHA looked at the systems used in two European nations and determined there was not a compelling reason to abandon its program. It also determined that the cost of setting up a market-surveillance system to protect American workers would be in the hundreds of millions of dollars.