A Christchurch couple have taken Kmart to the Disputes Tribunal over sand sold for children to play with that later turned out to contain asbestos, in a case that could shape how big retailers respond when their cheap children’s products go wrong.
Elle Chrisp and David Dingwall lodged a complaint with the Ministry of Business, Innovation and Employment on 23 April, telling the regulator that Kmart had downplayed the health risks of its contaminated play sand, misled customers about their rights under the Consumer Guarantees Act, and refused to cover the cost of testing and decontaminating the homes where the sand had been used. They are seeking compensation through the Tribunal and are urging other affected families to follow them in.
The dispute traces back to November last year, when Kmart pulled four products from sale after laboratory testing found tremolite asbestos in samples. The recall covered the retailer’s 14-piece Sandcastle Building Set and its Blue, Green and Pink Magic Sand. More than 67,000 units of the affected lines had been sold across New Zealand. Tremolite is a particularly nasty form of the mineral, linked to mesothelioma at very low exposure levels and notable for breaking apart into fibres small enough to inhale.
The Ministry of Education said at the time that more than 200 schools and early-childhood centres had asked for advice on whether the sand was in their classrooms. Some closed sandpits while testing was done. Families threw out toys, ripped up rugs and arranged tests on carpets and car seats where the brightly coloured sand had been tracked through the house.
WorkSafe classified the contaminated products as “friable asbestos containing material”, the most serious tier, which requires a Class A licensed remover to handle any clean-up. The agency directly contradicted Kmart’s earlier statement that no respirable asbestos had been detected, noting that tremolite crumbles easily and that the fibres released are well within the inhalable range.
Despite that, Kmart told customers in its recall material that “several experts have made public comments regarding the low risk” and that “urgent medical attention is not required”. Chrisp and Dingwall said that messaging played down the risk and steered worried parents away from seeking compensation. They argue the wording made it harder for households to know they had grounds to claim back the cost of professional testing and clean-up.
MBIE product safety spokesperson Ian Caplin acknowledged the recall notices had not been as clear as they could have been. “We appreciate that there may have been some confusion on these notices,” he told RNZ. The Ministry has since reminded retailers that under the Product Safety regime they must notify the regulator within two days of issuing a recall.
Commerce Commission head of fair trading Simon Pope said the regulator was assessing the conduct against its enforcement priorities and criteria. WorkSafe is also looking at the complaint. Both agencies have stopped short of saying whether a formal investigation will be opened, and have asked any household with information to come forward.
The parents have drawn a parallel with the Commerce Commission’s earlier prosecution of Jetstar over breaches of the Consumer Guarantees Act, which established that big retailers cannot rely on their own terms and conditions to cut across statutory rights. If Chrisp and Dingwall succeed, they will have created a low-cost path through the Disputes Tribunal that other families can follow without lawyers.
The Tribunal has a $30,000 cap on the value of any single claim it can rule on, but in cases involving large numbers of consumers, multiple successful claims can quickly add up to a financial signal a retailer cannot ignore. The Tribunal also moves much faster than the District Court, with hearings usually held within weeks rather than months, and decisions are binding once made.
For families still wondering what to do with sand they bought before the recall, MBIE’s advice is to seal it in an airtight container, double-bag it in thick plastic, label it “asbestos contaminated material” and arrange for licensed disposal. Households are warned not to put the sand in the kerbside rubbish, not to vacuum any spilled grains, and not to sweep them, because both would put fibres into the air.
The wider question for the Tribunal is whether a retailer who has imported, branded and sold a defective product can legitimately push the cost of fixing the consequences back onto the people who trusted that product enough to buy it for their children. Affordable children’s play gear is one of the things big chain retailers trade on, and the case will test what families are entitled to expect when it goes wrong.
Chrisp and Dingwall say they are not after a windfall. They want the Tribunal to confirm that under the Consumer Guarantees Act the cost of cleaning up after a contaminated product should sit with the seller, not with the household. They have offered to share their evidence and paperwork with other parents who want to lodge their own claims.
For schools and early-childhood centres, the unanswered question is who will ultimately pay for the air testing, the floor and carpet replacement and the lost teaching time during the closures. Some boards have asked the Ministry of Education for support, others have absorbed the cost from operations grants that were already stretched.
Have you bought one of the recalled Kmart sand products, or had to deal with the clean-up at home or at your child’s school? Drop a comment below and let us know how families and centres have been treated since the recall began — Newswire wants to hear what is working and what is not.
This article was written by AI, briefed to report the facts, hopefully without some of the bias people bring to the job 🙂
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