We're not talking about breaking and entering or bank robbery. But, in the global marketplace, where products are bought and sold across international boundaries, those with legitimate certification marks are highly valued. Buyers trust that certified products have met specific standards and have been performance tested by third-party laboratories.
When a person or organization sells a product that is falsely labeled as certified or falsely claims that it is certified in product literature or on web sites, that is a crime against the buyer as well as any manufacturer of legitimate certified products. Not only is it deceitful, but it devalues the investment all certified manufacturers have made in becoming certified.
Every counterfeit or misrepresented product diminishes the value of the certification mark; and in many cases, it can pose an actual physical risk to the end user. Failure of fire protection systems, electrical equipment used in explosive atmospheres, roofing and wall systems and flood control products, can have dire consequences.
Level of infringement
FM Approvals classifies infringements into the following three general categories:
- Counterfeit—a product that is not FM Approved but bears the FM Approved certification mark and is not made by the manufacturer of record (OEM) but by a manufacturer or distributor claiming that it meets FM Approvals requirements. This also includes the usage of the FM Approved certification mark on a counterfeit certificate.
- Unauthorized product modification—an FM Approved product currently manufactured by the OEM that is inconsistent with the actual Approved design (includes marking Approved product that has been determined to have quality or performance deficiencies).
- Misrepresentation of FM APPROVED marks or unauthorized use of intellectual property—an OEM or an entity with a business relationship with the OEM using the FM Approved mark on a product that is not FM Approved and/or misrepresenting the product on a trading platform. This includes misrepresentation of FM Approved marks or unauthorized use of intellectual property (e.g., certificate, reports).
Protecting the mark is job #1
The FM Approved certification mark is a powerful symbol indicating that an accredited certification organization has carefully evaluated a product in accordance with established, robust test standards and verified the product’s performance. FM Approvals is dedicated to encouraging the development and use of FM Approved products and services that improve and advance property loss prevention around the world.
By misrepresenting the FM Approved mark, a manufacturer and its distributors are knowingly and illegally infringing on the rights of manufacturers of legitimate FM Approved products, as well as potentially endangering the property and safety of anyone who purchases and installs these falsely marked products.
Over the past 20 years, the awareness and use of FM Approved products and services has expanded around the world. During this period of global growth, the increase in incidents of infringement on the FM Approved certification mark and the outright counterfeiting (see Figures 1&2) of FM Approved products has risen correspondingly.
“We have invested heavily in building the integrity and global scope of the FM Approved mark," notes Rich Ferron, FM Approvals vice president and manager of testing and certification. “It is almost inevitable that some less-than-scrupulous manufacturers will try to take advantage of the value we have built in the FM diamond. When that happens, it damages our legitimate customers and end users. Protecting the integrity of our certification mark is one of our most important responsibilities and one that we take very seriously."
More troubling than counterfeits
According to Bob Lovell, FM Approvals operations vice president of auditing and quality assurance, “Counterfeit products and counterfeit Certificates of Compliance are the most blatant or obvious violations of the FM Approved mark; however, a more common and still very significant violation we find is unauthorized product modifications."
"Unauthorized modifications are particularly disturbing because they usually occur with manufacturers who have FM Approved products," Lovell continues. “Manufacturers are required to inform us before they make a change to an FM Approved product so that we can evaluate any impact that change may have to product performance against the applicable FM Approvals standard. When a manufacturer fails to inform us of a change, FM Approvals views this as an unauthorized modification. These can be very dangerous and we consider it to be a significant offense."
Lovell notes that manufacturers who are caught making unauthorized modifications to FM Approved products face a variety of corrective measures, including product recalls, Product Alerts, warning letters, and potential delisting of FM Approved products from the Approval Guide and/or RoofNav.
The initial notification of a possible infringement on FM Approvals certification marks, known as Notifications of Concern (NoCs), can come from almost any source, including:
- FM Approvals’ engineer and/or surveillance auditor
- Field engineers, sales, account or claims managers, managers of intellectual property, law and government affairs)
- Authority Having Jurisdiction (AHJ)
- End user
- Other (e.g., government, industry organization)
All NoCs are routed immediately to the FM Approvals Loss Prevention Coordinator (LPC). The LPC enters the NoC into a central database used to track NoC status. The quality assurance group begins investigating the NoC to determine if it is a simple misunderstanding or something more serious.
Early in the NoC investigation, an engineering hazards analysis is conducted to determine if the NoC represents a potential loss prevention risk. If a clear risk is posed by the product, a Product Alert may be issued to the public containing information on how to identify the suspect product, such as a counterfeit sprinkler. A Quality Bulletin may be issued to FM Approvals auditors to alert them to look into certain areas of concern during their next surveillance audit or during an unannounced visit.
The manufacturer of the FM Approved product associated with the NoC is notified of the potential violation. If appropriate, the manufacturer will be asked to submit a plan to correct the violation or infringement. If these measures fail to correct the situation, additional action may be taken, up to and including delisting or litigation.
Surveillance audit program integral to certification
The product-focused and quality-based surveillance audit is a critical requirement of all FM Approval programs, and it provides independent verification that a manufacturer has established robust and effectively-managed processes to ensure continual compliance in product production. The audit process helps ensure that FM Approved products continue to meet all the requirements of the test standard or specification.
Independent product and quality audits by FM Approvals are a sample-based assessment of the processes established by the manufacturer. These audits focus on validating the location’s ability to consistently provide product that meets customer and applicable statutory and regulatory requirements. Audits are required for ongoing certification, and offer a clear assurance to customers, specifiers and AHJs that the Approved product continues to meet the requirements of the FM Approval standard.
FM Approvals’ auditors work with each location to independently examine the FM Approved products, procedures, processes, quality systems and records to ensure they conform to specified requirements. The auditor can help identify opportunities to enhance existing activities, improve system efficiency and effectiveness, and optimize a location’s ability to demonstrate the conformity of the manufactured products.
Refocus brings new clarity
In 2009, FM Approvals implemented a number of changes to its audit program in order to better enforce compliance and reduce potential risk. The changes included:
- Increased focus on Approved products
- Increased auditor training
- Improved data collection and analysis
- A shift from independent auditors to certified auditing agencies
“In the past, our focus was primarily on the customer’s quality program and quality system," Lovell explains. “There wasn’t as much focus on the objective evidence of compliance. By simply asking ‘do you still make this product here?’ Or ‘where do you make this product?’ You would not believe what we found."
Lovell notes that the shift in audit focus and improved training resulted in surprising results, such as the identification of unauthorized manufacturing sites, an increase in the identification of non-conformances, and the more efficient use of auditing resources.
“This is a continual journey, and we apply the rules impartially no matter where we operate," Lovell notes. “There are no preferred customers. It doesn’t matter if you’ve had an FM Approved product for 20 years or 20 days."
As more and more data was gathered and consolidated in a data analysis system, certain trends began to emerge. “Beginning in 2012, we began to consistently redirect or shift our focus," Lovell continues. “For instance, certification mark usage—to make sure that what is written on the product label complies with what they provided to us during their testing and certification program. Another focus area was in the formulation of certain products such as insulations and roof coverings. This became a big enough concern that we increased the frequency of audits for formulated products."
[See related story: "Sample testing programs help verify accuracy of formulated product"]
Lovell continues, “By continually educating and updating our auditors we continue to discover non-conformance which assists our customers in obtaining a better process. That’s why the number of non-conformances have remained at about the same level for seven or eight years. As we shift the focus of our auditors, we uncover new sources of previously undiscovered non-conformances."
Rewrite = results
In 2016, the FM Approvals policy on the Control and Use of the FM Approvals Certification Mark was extensively revised in order to:
- Ensure an impartial approach to the protection of the FM Approvals certification mark
- Provide consistency in the logic used for decision making
- Better define under what conditions previously FM Approved products may be delisted from the Approval Guide or RoofNav.
“When we began rewriting our internal policy regarding the usage of our mark, we took the perspective of the customer who is doing things the right way, because those are the vast majority of our customers," Lovell emphasizes. “We are working hard around the world to protect the value of our customers’ investment in the FM Approved mark. If a manufacturer makes a mistake and points it out to us on their own volition, we’re going to work with them to make it right in a reasonable timeframe. On the other hand, if someone is knowingly violating their agreement with us or counterfeiting products or certificates, we will take aggressive action to correct that situation."
To learn more about FM Approvals and certification mark usage, please visit www.fmapprovals.com