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| Credit: CLEAN WATER ACTION |
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. ...
