Toxic Flame Retardants & Consumer Fraud
Ellie Goldberg, ellie.goldberg@gmail.com


Can Massachusetts’s consumer protection laws help families get rid of furniture and children’s products contaminated by toxic flame retardants?

Can our families and firefighters get the same type of action from federal agencies that got refunds for car buyers and restitution for environmental damage from Volkswagen?

They Bamboozled the Public and Policy Makers

For forty years, three chemical companies and the tobacco industry made false claims that chemical flame retardants would stop fires when added to the foam of household furniture and products. They deliberately deceived the public and policy makers just as Volkswagen tricked millions of people when they sold cars rigged to ​give false emission test results.

In fact, the way these chemicals were used, they do nothing to protect us from fires.

And, the evidence continues to grow that links these toxic chemicals to cancer, learning disabilities, thyroid disease, infertility and other health problems. (See the award-winning 2012 Chicago Tribune investigative series "Playing With Fire" and the movie Toxic Hot Seat.)

A Hazard to Children and Fire Fighters

The chemicals break down into dust that is easily inhaled and swallowed, especially by children and infants at their most critical periods of development. Due to their widespread use in everyday consumer products, flame retardant chemicals are rapidly accumulating in our bodies and in soil and water—such as the Great Lakes—all over the globe. (Children’s Car Seat Study)

And firefighters have 2 to 3 times more flame retardants in their bodies and “fire fighters have higher rates of cancer than any other profession. No less than 60 percent of career firefighters will die this way, “with their boots off.” ( Letter to the Editor, Sun Chronicle, July 8, 2016, Paul W. Jacques, Professional Fire Fighters of Massachusetts )

Updating the laws

Starting in 2013, when California updated its flammability standards, manufacturers started making furniture and products that are more effective at preventing fires in real-world conditions without the use of toxic flame retardant chemicals. And, retailers have started to sell furniture without toxic flame retardants.

In Massachusetts, public health advocates campaigned for H4241/S2302, the Bill to Protect Children, Families, Firefighters from Toxic Flame Retardants. It did not pass in the legislative session that just ended July 31. To stay informed on the campaign follow the Alliance for a Healthy Tomorrow (HealthyTomorrow.org) @Healthy Tomorrow MA and www.facebook.com/healthytomorrow.

Consumer Action?

However, even if the bill had passed, only those of us who can afford to replace the contaminated couches, mattresses and children’s items will benefit from new safety standards. That leaves millions of us living with contaminated couches, mattresses and children's car seats, changing table pads, crib mattresses, nap mats, nursing pillows and other products -- living with fear about the ongoing exposure and increasing body burden of toxic chemicals.

Car Buyers Can Get Their Money Back. Why Not Couch Buyers?

Federal agencies representing car buyers not only won one of the largest consumer class action payouts in American history but require Volkswagen to pay restitution for the environmental damage it caused.

Volkswagen admitted that its diesel cars had been designed to cheat air-quality tests. ( Volkswagen to Pay $14.7 Billion to Settle Diesel Claims in U.S. JUNE 27, 2016 ) Volkswagen will pay up to $14.7 billion to settle emissions-cheating claims with regulators and owners of nearly 500,000 diesel-powered vehicles. Volkswagen has to buy back and/or compensate the cars from its victims. (Compensating Volkswagen’s Victims JUNE 28, 2016.)  

American owners of nearly 500,000 Volkswagen cars will be able to sell their vehicles back to the company at their pre-scandal value or have them repaired. In addition, owners will receive between $5,100 and $10,000 in compensation for having been misled. Volkswagen also agreed to pay $2.7 billion into a fund that will be used for projects to mitigate the environmental damage caused by its cars. And the company will invest $2 billion over the next 10 years in zero-emissions vehicle infrastructure like charging stations for electric cars. The company also announced a separate $603 million settlement with 44 state governments, the District of Columbia and Puerto Rico.

Can we get our money back?

Like Volkswagen, the chemical companies deliberately lied. They committed fraud. They knowingly conspired to create and sell hazardous products.

Can Massachusetts consumer protection law require producer take-back and retailer refunds to help us get rid of our contaminated furniture and children’s products? (Reference “A Massachusetts Consumers Guide to Shopping Rights”)* Can consumer protection laws require retailers to disclose to buyers the presence of toxic flame retardants in current inventory?


Reference Notes:

* The Massachusetts law requires “Truth in Advertising and Sales.”

Disclosure: Under state law, a merchant must tell you about any fact that may influence your decision to enter into the transaction. For example, a used car dealer should disclose that a vehicle was in a serious accident (940 CMR 3.16(2)).

Misrepresentation:  A merchant may not make a claim about a product or service that would mislead you. It's also illegal for a merchant to mislead you by failing to tell you relevant information about a product or service (940 CMR 3.05(1)).

Implied Warranty of Merchantability

Under the implied warranty of merchantability, the merchandise must do what it was designed to do with reasonable safety, efficiency and ease, and for at least a reasonable period of time. Every item sold by a merchant in Massachusetts automatically comes with the implied warranty of merchantability.  Under this law, a merchant cannot sell merchandise "as is", "with all faults", or with a "50/50" warranty. (M.G.L. c. 106, §2-314)

Breach of Warranties

Under state law, it is an unfair or deceptive act or practice to fail to honor a warranty. (M.G.L. c. 93A, §2(c), 940 CMR 3.08 (2))

Refund, Return and Cancellation Policies

Massachusetts law requires that a merchant clearly and conspicuously disclose the store's refund, return, or cancellation policy. A merchant cannot misrepresent the store's policy or fail to honor it. Generally, clear and conspicuous disclosure means that the merchant must display a written return policy that the buyer can see and understand before the purchase is made. As long as the product is not defective, a merchant can choose any return policy, provided the merchant discloses this policy to the buyer before the purchase. Stating the policy on the receipt would not satisfy this disclosure requirement, because it is not provided until after the sale. ( M.G.L. c. 93A, §2(c), 940 CMR 3.13(2)).

Defective Merchandise  

A store cannot use its disclosed policy to refuse the return of defective merchandise. When the item purchased is defective, you can choose a repair, replacement or refund. This right is contained in the Implied Warranty of Merchantability law. Under that law, merchants cannot limit your remedies. In addition, this means that if a merchant chooses an "All Sales Final" return policy, it must disclose that policy without limiting your rights. For example, the disclosure of the return policy must be similar to a posting which reads:
"All Sales Final, With the Exception of Defective Goods." (940 CMR 6.12)

Merchandise Credits

When a store issues a merchandise credit for returned goods, you have at least seven years from the date of issue to redeem the credit . (M.G.L.c. 93§14S )  

"...we want to make clear to all auto manufacturers that violating laws designed to protect our environment and our public health is unacceptable and will be punished with significant penalties," said Massachusetts Attorney General Maura Healey.

In the latest development in the ongoing Volkswagen emissions scandal, the state of New York just slapped VW with a lawsuit for deliberately installing emissions-cheating devices in diesel cars. At a press conference today in New York City, Attorney General Eric T. Schneiderman said, “the company sold over 25,000 cars to New Yorkers looking to buy a clean and green vehicle, and we know that those statements were nothing but lies.” The lawsuit is joined by an additional suit from Massachusetts, which alleges that VW sold over 40,000 vehicles with emissions “defeat devices” in the two states. ...