The most powerful section of any code is the alternative approval section. This section is typically found in either the administrative chapter of the code or the general requirements chapter. Every code has an alternative approval section. Basically, the alternative approval section allows an applicant to file a request for acceptance of anything that is either not allowed in the code or is restricted in the code.

Every alternative approval section starts out the same way, “The provisions of this code are not intended to prevent the installation of any material or to prohibit any design or method of construction not specifically prescribed by this code, provided that any such alternative has been approved.” After this statement, each code goes on to list what is required to prove equivalency.

I have used this section of the code on many occasions — either to gain acceptance of a new and innovative product, or unique design in the plumbing or mechanical system. On many occasions, the alternative approval that was accepted eventually made it into the body of the code. Thus, the alternative approval section allows a quicker acceptance, as opposed to the longer, more grueling code change process.

If you are wondering why this section appears in every code, the simple answer is that it is a legal requirement in the United States. Without such a section, the code is viewed as being a restraint of trade.  

The Federal Trade Commission (FTC) was created in 1914 to oversee the protection of consumers and promote competition. By the 1930s, the FTC was pursuing legal cases involving restrictions in building codes. In 1936, there was a case regarding the Chicago Building Code. The courts found that the code was invalid, in that it prohibited the use of plasterboard. It ruled that plasterboard was as sanitary and fire-resistant as lath and plaster. Other cases quickly followed.

By the middle of the last century, every construction code recognized the need to have provisions for alternative approval. A 1947 building code on my bookshelf has the following section: “In order to secure for the public the benefits of new developments in the building industry and yet ensure public safety, the inspector through the Building Committee shall make investigation, or accept authenticated findings from reliable sources (such as qualified testing laboratories) of new materials or methods or construction for use in the construction of buildings or structures in the township which are not provided for in this code, and shall establish rules setting forth the conditions under which such materials or methods of construction may be used. Rules so established and published as herein provided shall have the same force and effect as provisions of this code.” This text is close to what appears in the codes today.  

The alternative approval section has remained a mainstay in all model building codes, plumbing codes, mechanical codes and fuel gas codes. That is, until this year. For the first time that most can remember, the alternative approval section is being challenged through proposed code changes. The code changes are to both the IAPMO and the ICC codes. Both groups of code changes include the same proposal. The change would add the following statement to the alternative approval text, “….provided that any such alternative is not specifically prohibited by this code and has been approved.”

The proposed changes intend to restrict the use of the alternative approval section to anything that is prohibited in the code. Such a proposal should set off alarm bells in your head. By adding the proposed new words, the codes would revert back to before the 1930s where a restraint of trade would be allowed. This reminds me of my history teacher who always said, “Those who do not learn history are doomed to repeat it.” Are we repeating history in trying to use the code to restrain trade?

A learning experience

As a young engineer working for a model code organization, I thought that the alternative approval section did not apply when the Plumbing Code specifically prohibited something. That was put to the test when I was asked by my good friend Pat Higgins to write a letter stating that a certain product was prohibited by the code. The letter was needed to reject a request for a standard at ASSE. I drafted such a letter on model code stationery.

A few weeks later, my boss called me into his office. He started out by saying, “Your letter appeared on the desk of the Federal Trade Commission.” After an explanation of how much I screwed up, I thought I was about to be fired. However, my boss, being a great boss and educator of young engineers, stated “We will use this as a learning experience. For the rest of your professional career, you will protect the alternative approval section in every code.”

It did not end there. The chair of the ASSE Standards Committee, Pat Higgins, and I had to make amends for the error in judgment. ASSE signed a consent decree with the Federal Trade Commission. ASSE was also required by the FTC to modify its bylaws.

While getting the education of the legalities of restraint of trade, my boss used a simple example. He said that if the code stated that it is prohibited to paint your house black, you can still paint your house black. All you have to do is prove that painting your house black is equivalent to painting your house any other color. Once you gain approval for equivalency, you can paint your house black.

This simple explanation helps to understand how a code can restrain trade. If something is prohibited, there is always the possibility of proving equivalency. If proven and approved by the code official, it is no longer prohibited.

You should note that the important part of any alternative approval is “proving” equivalency. There is no “carte blanche” when requesting an alternative approval. If an engineer requests an alternative approval, that engineer is responsible for proving equivalency.

There should be a lot of discussion at the upcoming code hearings on these code changes regarding alternative approval. It appears to be the first challenge of FTC regulations in more than 80 years. The ICC hearings will be held in April in Rochester, New York. The IAPMO technical committee meetings will be held in May in Anaheim, California. Let’s hope that history does not repeat itself with the codes ending up on the desk of the Federal Trade Commission.

The views expressed here are strictly those of the author and do not necessarily represent PM Engineer or BNP Media.