Chinese sofas burn 5,000!23 November 2009
Richard Langton, partner, Russell Jones & Walker, lead solicitors for the claimants in the Linkwise/Eurosofa DMF Group Litigation provides a legal context to the toxic sofa story and appeals to Leather International readers to help identify other harmful substance(s) which may be being used in some leather making processes following an overwhelming response from consumers to reactions that may not always be related to DMF
The current litigation against UK and European retailers for injuries caused to consumers who have used furniture contaminated by dimethyl fumarate (DMF) could end up costing the industry tens of millions of pounds (sterling) in damages and costs, and permanently damaging consumer confidence in imported leather products. The vulnerability of retailers to the activities of manufacturers could not be more clearly shown than by this case. For those unaware of the problem, or wanting more detail, last month’s issue of Leather International (May 2009 page 26) provided an in-depth analysis of how anti-fungal chemicals added by Linkwise and Eurosofa, two Chinese manufacturers, had caused up to two thousand injuries. A further 3,000 consumers claim to have been affected similarly by Chinese leather furniture though no cause has yet been identified.
Retailers are pretty much strictly liable for injuries caused by goods sold. A combination of the Sale of Goods Act and Consumer Protection Act (CPA) entitle the purchasers and users to full compensation without proof of fault. Where goods are imported into the EU, the retailer can avoid CPA liability to users (but not purchasers) if another business has carried out the importation, and liability rests with that importer instead. In practice both retailer and importer are likely to have to pay substantial damages.
The three main retailers affected in the UK are Land of Leather, Argos/Homebase, and Walmsleys. About a dozen other smaller retailers sold the DMF contaminated sofas. Dozens more sold non-DMF models where complaints are made. Even though the retailer Argos had identified by summer of 2007 that something was wrong with their sofas, and even though they quickly identified the problem came from only one or two manufacturers, it appears they were never told the identity of the chemical that was being added until their expert discovered a sachet of the powder, tested on himself, and came out with a severe reaction.
The general media has shown keen interest in this story. Cases emerging in France, Scandinavia and Poland have continued to generate more adverse publicity for the leather industry across Europe. About 1,800 cases involving DMF have been identified in the UK and 800 more in France alone. Up to 200,000 potentially affected models were sold in the UK and 40,000 in France. It is still unclear how many people will suffer injury as we receive new cases on a daily basis. The European Union has implemented an EU-wide ban and product recall for DMF.
When the UK High Court ordered the national advertising of the DMF problem in October 2008, we received 12,000 calls in four weeks from worried consumers. The pattern that has emerged is that a relatively small number of other Chinese leather furniture manufacturers have sold products where users are complaining of skin irritation and breathing difficulties in particular. But the retailers and manufacturers are adamant that DMF was not used. What then could be to blame? We are currently investigating by way of patch-testing and laboratory analysis for the ‘usual suspects’ which we think manufacturers might have used as fungicides. However, the use of DMF by one company suggests that manufacturers may well have tried to find unorthodox solutions to solve the mould growth problem. Chemicals may have been added at the finishing stage or to the containers during shipping. Because the manufacturers have not been joined to the litigation and the retailers appear to have little information on this subject, we are left looking for the proverbial needle in a haystack. We would welcome any reader with knowledge of fungicides or the use of other chemicals or treatments to put forward their ideas. We know that the vast majority of cases involved furniture manufactured from early 2006 until early 2008.
Unless and until the cause of consumer injury is identified it seems likely that consumers will have good reason to be concerned about buying Chinese leather products. Literally dozens of recalls have taken place in Spain in the last few months in connection with leather footwear where DMF has been found. Across Europe product recalls are taking place in respect of furniture and shoes. The leather industry needs to take steps to ensure that its supply chain is transparent about the substances used in production, the quality control is rigorous and that manufacturers understand the severe consequences of their actions. I would go so far as to say that the reputation of the Chinese manufacturing industry may be in jeopardy. Not just this case but also those involving lead paint in toys, chemicals in baby food and in dog food have led many of our clients to indicate that they will actively avoid Chinese goods in the future.
Whilst that might be good news for UK and other manufacturers, the UK consumer has become used to low prices. It is essential that quality is part of the process and that end user laboratory testing or recourse to the law courts is the exception to restore consumer confidence. All those involved should take heed how easily their reputation can be affected. They should ensure they have adequate product liability insurance in place.
Any comments or suggestions should be addressed directly to Richard Langton, partner, Russell Jones & Walker Solicitors. Email: firstname.lastname@example.org or via the editor.