Kmart NZ has cancelled the recall of Blue, Green and Pink Magic Sand sets but the recall for other coloured sand items remains in force. Photo / Product Safety NZ
By Nine To Noon and Emma Hatton of RNZ
Parents whose children played with asbestos-contaminated sand are taking Kmart to the Disputes Tribunal and encouraging others to do the same.
In November 2025, Kmart issued a recall notice for some coloured play sand products.
Families, early childhood centres and schools responded by throwing away toys, ripping up carpet and testing homes and classrooms.
Christchurch parents Elle Chrisp and David Dingwall are now taking Kmart to the Disputes Tribunal in an effort to reclaim costs they incurred having their sand tested, and the subsequent checks and decontamination inside and outside their home that had to be undertaken by asbestos experts.
“We sent them a letter outlining all of the costs, also outlining the law, explaining to them everything in detail – and that letter went unanswered,” Chrisp told Nine to Noon.
“If they aren’t going to engage with us directly and they’re going to ignore our claim made to directly, the only option for us is to then go to the next stage, which is the Disputes Tribunal.”
The total costs they incurred were in the “tens of thousands”, Chrisp said.
They had also formally laid complaints with the regulators involved – the Ministry of Business Innovation and Employment (MBIE), WorksSafe, Customs and the Commerce Commission, outlining a number of potential breaches of law that have occurred, changes that could be made, and urging them to take action.
“Rather than making allegations of breaches of law what we’re asking is for the relevant regulators to investigate and make their own finding about breaches of law,” Dingwall told Nine to Noon.
“We think that there may be evidence demonstrating that consumers may have been misled or are likely to have been misled by the information emerging from the supplier in this instance.”
Kmart downplayed the health risks to consumers in its product recall notice, and has misled people over their rights under the Consumer Guarantees Act, they said.
In particular, the pair said Kmart minimised the health risks posed to consumers by saying in the product recall notice that respirable asbestos had not been detected in any of the tested samples, and that the release of respirable asbestos fibres was unlikely to occur in its current state, unless the sand was processed by mechanical means such as crushing or pulverising.
“The risk that any asbestos found, that is likely to be airborne or fine enough for inhalation, is low,” Kmart said.
Dingwall contended the wording that was included in the recall notice was better suited to traditional construction asbestos, “which is within bonded or cementitious” products, and was not well suited to describing the risks associated with asbestos-contaminated sand.
Those claims were also contradicted by advice provided by WorkSafe, where it said tremolite asbestos was easily crumbled, or “friable”.
Chrisp and Dingwall said Kmart’s refusal to compensate customers for the costs of cleaning their homes that were contaminated breaches the Consumer Guarantees Act, and is similar to Jetstar’s recent prosecution for misleading customers over their entitlements.
Chrisp said she was not initially too concerned by the recall, until she noticed the contrast between Kmart’s messaging to consumers, and its response in its own stores.
She recounted how the Te Rapa store in Hamilton was closed for decontamination, while those who had purchased the sand were simply told to throw it out.
“That juxtaposition – seeing how Kmart reacted in that instance – really put me on notice.”
Despite Kmart downplaying the risk posed by the coloured sand, when they got theirs tested and the results came back positive for tremolite asbestos, the removal company advised them to evacuate their home, Chrisp said.
“Just to limit any chance of exposure and contamination ... so that meant we had to leave behind our twins’ soft toys, all of that bedding and just leave with the clothes on our back.”
The sand had mostly been played with outside, but at times it had been spread across their house, she said.
“We knew that sand was in our garden, in our grass, but the question became, ‘is it in our home?’”
Chrisp said she would never have known her house was contaminated by asbestos if she had followed the Kmart recall notice instructions and simply thrown it out.
There had been a concerted effort to “control the narrative” of the product recall notice, which was drafted in collaboration with MBIE, Dingwall said.
The risk from the sand was not yet known at the time the notice was drafted, yet Kmart was prepared to say that risk was low, he said.
“That is not supported by experts behind the scenes and in fact world-first research is being undertaken at Auckland University of Technology to determine that.”
In advising workplaces to treat the asbestos as “friable”, WorkSafe was giving the right advice to businesses, so it was frustrating not to see that same advice given to consumers, Dingwall said.
“Asbestos is no less dangerous in a home than it is in a kindergarten.”
In a statement provided to Nine to Noon, a Kmart spokesperson said several experts have made public comments regarding the low risk, and that as this matter is now subject to legal proceedings, it would not be appropriate to comment further.
“Since late 2025, we and other brands have conducted voluntary product recalls in response to an industry-wide issue impacting sand-based toy products, following the detection of tremolite asbestos in products across the industry.
“Several experts have made public comments regarding the low risk. It is important to note that Health New Zealand Te Whatu Ora published advice that urgent medical attention is not required and provided practical advice for household cleaning and disposal of recalled products.”
MBIE product safety spokesman Ian Caplin confirmed it had received the complaint from Dingwall and Chrisp on April 23.
“As part of the recall process, businesses must notify MBIE of any recalls within two days of the business undertaking one, which is to be then published on the Product Safety website. Throughout the sand recalls, this has occurred.
“However, we appreciate that there may have been some confusion on these notices and we are evaluating how we can better clarify that the information in these notices are from the business and not direct advice from MBIE.”
MBIE will consider all the findings in the complaint and will continue working with the other agencies involved to address the issues raised, he said.
Commerce Commission head of fair trading and product safety investigations Simon Pope said it would assess the conduct raised but could not investigate every concern.
“We consider our Enforcement Priorities and Enforcement Criteria when discussing whether to start an investigation.”
WorkSafe also acknowledged the complaint and said it was being assessed.
“All businesses involved, including Kmart, have been advised that these products must be treated as friable asbestos containing material and a Class A response is required. This information is publicly available on our website: Asbestos in coloured sand.”
Customs said in a media release to RNZ it had received the complaint and would “respond accordingly”.
“We work closely with partner agencies where products present potential border or safety concerns.”
Importers were responsible for knowing the contents of the goods they brought into the country, and for obtaining any required permits, it said.
“In relation to asbestos, the role of New Zealand Customs is to ensure that asbestos-containing products, when declared, are covered by a permit to import issued by the Environmental Protection Authority (EPA).
“If this law has been breached Customs has discretion to take appropriate enforcement action where there is sufficient evidence and it is in the public interest to do so.”