The company that lodged the complaint has expressed disbelief. "It's black and white," it said.
RNZ is unable to identify any of the companies involved, or the product, while the Commerce Commission's Ministry of Business, Innovation and Employment's inquiries continue.
The complaint
The Government acknowledges widespread problems with poorly anchored ceilings, pipes and sprinklers in multi-storey buildings that were exposed by the 2016 Kaikōura and 2010-11 Canterbury earthquakes.
"As a result, [the ministry] recognised that the performance of systems in ceiling spaces needed to be improved, and considered it important that these improvements be driven by the construction industry rather than through legislation," the Ministry of Business, Innovation and Employment told RNZ.
The ministry has typically relied on industry self-regulation and does limited monitoring or enforcement.
The deficiencies of non-structural seismic restraints got a lot of industry and council attention straight after BNZ Harbour Quays was badly damaged in this way in the 2016 quake, but that petered out.
In June 2018, a company that makes seismic braces to anchor non-structural elements suspected a rival was cutting corners with a brace in common use in ceilings in New Zealand.
The company ran its own tests, and also three independent tests through an accredited lab: In those three tests, the brace failed at about a tonne, or half the load it should, documents show.
The company complained to the Commerce Commission in July 2018, stating its first fear was safety. "Premature failure of a brace could have catastrophic results in the event of an earthquake."
Its second fear was being undercut by what it called "misleading" marketing.
"The problem is that most braces used in New Zealand do not need to conform to any testing standard," the company told RNZ.
For instance, a key ceiling standard, NZS 4219:2009, does not specify a testing protocol.
The first investigation
The Commerce Commission's inquiry ran into this testing obstacle. "We did consider testing in the seismic bracing investigation," it told RNZ.
There was a precedent for this: The commission had ordered independent tests in its steel mesh inquiry in 2016-17, that found a lot of mesh was too weak and resulted in a huge fine for Steel and Tube.
But enforcement in that case was relatively clearcut.
Not so in the bracing case. "There is currently no prescribed or universally agreed procedure/requirements for testing such seismic bracing systems," the commission said.
That was not all. There was also an "absence of clear guidance concerning product specifications".
Plus, it was complicated: The advice the commission got was that a brace's strength did not depend on the product itself, but on how and where it was used, it said.
It concluded in a ruling in February this year, that the brace manufacturer had not breached any Fair Trading laws.
The brace manufacturer told RNZ that it was advised the commission would take no enforcement action.
"We have no further comment to make on this, now closed, investigation."
However, the complainant's safety concerns have not been addressed.
The brace did not fall under any of the product safety standards enforced by the commission.
"Our view was that MBIE was better placed to consider whether any safety concerns arise from the complaint," it said.
Yet it took the commission 18 months from when it received the complaint to alert the ministry to it, in February this year.
The second investigation
The ministry told RNZ it was now looking into the case. It did not say if it would test the braces itself.
Although it was alerted three months ago, it was only at the end of May that the ministry began an Official Information Act process to get hold of the commission's investigation.
This was after RNZ began asking questions about the complaint.
The ministry was also assessing "the clarity of testing and performance expectations" of non-structural bracing, it said.
The commission had asked it to, pointing out there was "a disparity in the approach taken by manufacturers of seismic bracing systems to testing and performance representations".
It wanted to help the ministry ensure "the requirements or expectations for seismic bracing systems are consistently understood and applied in the building product industry in New Zealand", the commission said.
The ministry said that there were existing guidelines and standards, and that councils checked seismic designs.
As for whether braces should undergo routine independent testing, the ministry referred to a bill now before Parliament that is aimed at improving the quality of building products and how they are installed.
"Matters such as product testing were discussed in some detail during consultation on policy proposals for the bill, and are matters which will be under active consideration when the detailed policy work on the regulations begins."
The bill had its first reading in Parliament on May 27.
The new law would also empower the head of the ministry to demand information from manufacturers about products it was looking to ban or put out a warning about.
Second complaint
A second complaint about a different seismic brace and a different manufacturer was made to the ministry last August by an engineer.
The complaint was also supported by independent tests that faulted the strength of the brace.
However, the ministry said it had closed the case after looking at information from the manufacturer, and an independent assessment of test reports.
"We are satisfied the product is not dangerous or unsafe, and is unlikely to pose undue risk to those using buildings where the product has been fitted," it told RNZ.
It did not test the braces itself.
Industry frustration
The ministry has to date put the onus on the industry to fix the underlying problems with how restraints are being made and fitted.
The complainant in the two-year-old brace case said it was aware of many examples of products installed in a way that hugely reduced their ability to withstand an earthquake.
Several industry participants RNZ has spoken to on condition of anonymity, expressed frustration at the ministry's approach.
"The whole non-structural elements arena needs improving with regard to specific testing," one engineer said.
"In other countries you find specific, codified and industry[-led] testing regimes for all sorts of products and systems."
The ministry should approve a standard - even an overseas one - that had a testing regime. This could be trialled over a few years, and if it worked well be incorporated into local standards, they said.
Another said there were too many contradictions. "The ministry could have made the regulations a lot simpler, a lot sooner."
A report to the ministry by engineering firm Opus in 2017 said United States regulators had found an "excellent way" to improve the performance of non-structural building elements was to undertake testing.
Read the full report (PDF: 3.1MB)
It quoted a US expert saying that, in his experience, the industry had to be told exactly how to implement improvements "or they are simply ignored".
