Two Companies Fined Over False Building Wrap Claims

Building products company Masons Plastabrick Limited (Masons) and building products certification company CertMark International Pty Limited (CertMark) have been fined $240,000 and $210,000 respectively for making false representations about a building wrap product.

Building wrap is typically fixed between the framing and cladding of buildings to provide a barrier against moisture entering a building.

The Commission took action against Masons after finding the building wrap product (which is marketed as FR1 or Barricade Plus) was advertised to be “suitable as an air barrier” and compliant with the applicable air resistance standard, when in fact it was not.

CertMark was also charged after assessing the product and issuing it with CodeMark certification in 2015. CertMark issued a document stating that the product was suitable for use as an air barrier, when it was not. This is the first action taken by the Commerce Commission against a certifier under the CodeMark scheme which is governed by the Building Act 2004 and Building (Product Certification) Regulations 2008.

Commission Chair, Anna Rawlings, says false representations about building products are a priority area for the Commission because of the serious harm they can cause homeowners.

“Suppliers and manufacturers must only make claims about their building products that are accurate.”

Builders and homeowners must be able to confidently rely on what they are told by suppliers and manufacturers of building products as well as proper certification under the CodeMark scheme.

“Certifiers like CertMark play a vital role in the building compliance system and have a responsibility to verify the accuracy of product claims relevant to their work.”

Masons pleaded guilty to six charges relating to air barrier and air resistance testing representations on its website, in promotional materials and on product labelling from May 2015 to February 2018. One charge related to a product comparison chart on Masons’ website, which gave the appearance that their building wrap product had better performance characteristics than alternative competing products and this was liable to mislead the public.

CertMark pleaded guilty to one charge relating to an Assessment Brief it produced and published, which also made the false air barrier and air resistance testing representations.

In sentencing Judge Sainsbury said that Masons was careless as a company involved in the industry, supplying incorrect information to the certifier.

“There was also carelessness in [Masons] failing to check or realise the mistake. Worse than that, they publicised the false information. They are under an obligation to do better than they did.

“CertMark have the responsibility of analysing material in order to provide a certificate that will be accepted at face value as showing compliance with the Building Code. The obligation is on CertMark, as it is on every certifier, to meticulously check the information that is provided to ensure that it is accurate and relevant.”

Judge Sainsbury agreed with the Commission’s submission that the false representations made by an organisation in a certification role strike at the heart of the purposes of the Fair Trading Act and the objectives of the Building Code.

“Those in the building industry and those who rely on products used by the building industry must be able to have upmost confidence in assertions of quality made by a certifier,” Judge Sainsbury said.

Masons has agreed to rectify any installed product that may be affected. Further details about how consumers can identify whether their building may be affected appear in the attached notice and on the Commission’s website here.

Background

Building wrap air resistance
Air resistance can be an important property of a building wrap. If a building wrap is suitable as an air barrier, it means that it can be used on unlined walls to prevent wind-driven moisture from entering the wall assembly. Air resistance can be necessary for certain buildings or parts of buildings to comply with the New Zealand Building Code (NZBC).

CodeMark
The CodeMark Product Certification Scheme is a pathway for buildings to demonstrate compliance with the NZBC. CodeMark certification can only be issued by certification bodies accredited by the Joint Accreditation System of Australia and New Zealand (JAS-ANZ).

Products that are certified under the CodeMark scheme are deemed to comply with the NZBC, which means building consent authorities must accept that the product meets the requirements of the NZBC, if installed as recommended.

CertMark suspension and withdrawal from Code Mark
In July 2019 CertMark was suspended from acting as a product certification body by JAS-ANZ for failing to meet its accreditation requirements. CertMark subsequently withdrew from the CodeMark Scheme. CertMark continues to undertake CodeMark certification in Australia and provides proprietary building product certificates in New Zealand.

Breach of the Fair Trading Act
Only the Courts can decide if there has been a breach of the Fair Trading Act and can impose penalties where it finds the law has been broken. A company that breaches the Fair Trading Act can be fined up to $600,000 and an individual up to $200,000 per offence.

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