Who’s responsible for defective goods—merchant or manufacturer?

Consumer Reports News: April 24, 2009 03:42 PM

So that DVD player you just purchased doesn’t work, and the retailer wants you to send it back to the manufacturer and wait for a replacement.

This type of scenario is becoming increasingly common, as stores and manufacturers try to shift responsibility for defective products away from the retailer. Many items, especially electronics, now come with notices instructing buyers not to return the item to the store if there’s a problem, but to contact the manufacturer instead. And some retailers refuse to accept returns of defective items altogether.

For example, the policy at KnivesPlus.com says: “Defective products are the sole responsibility of the manufacturer.” Another retailer, 42nd St. Photo, tells customers: “Do not return merchandise where the manufacturer's policy is ‘do not return to store.’”

So if a product doesn’t work out of the box or is otherwise not what you paid for, do you really need to send it back to the manufacturer, often at your own expense, and wait weeks or even months for the factory to send you what might turn out to be a remanufactured model? And what happened to the traditional notion of retailing, where the store acts as the middleman between customers and manufacturers, providing assistance if there’s a problem?

Retailers generally have a legal, if not professional, obligation to provide you with a product that works and that lives up to commonly held expectations. If you paid for a green toaster and there’s a blue one in the box, the retailer owes you a green one. The same goes if the toaster is blemished, missing parts or accessories, or simply doesn’t work.

Those obligations come from federal law, the uniform state laws that govern transactions, and, in many cases, from consumer protection measures that can vary by jurisdiction. An exception might be allowed if the product is sold with such language as “as-is” or “with all faults,” something we rarely see at stores, but are common in online retailers’ terms and conditions.

And some states don’t allow retailers or manufacturers to sell new goods using those terms. As a result, every new item sold by a merchant in those states comes with an “implied warranty” that the product is “merchantable”—that is, it’s fit for its ordinary purposes. The implied warranty from the seller may provide you with even greater protection than any express warranty from the manufacturer.

Beyond that, states often have laws that apply to specific products, such as new and used-car lemon laws, that give you special rights.

If you have a problem with a product, you have several options.
  • Get technical help. If the difficulty is not with the product itself but an issue of using it or setting it up, contact the retailer’s or manufacturer’s technical experts. 
  • Take it back. If the item doesn’t work, is damaged, missing parts or accessories, or breaks down in an unreasonably short period through no fault of your own, don’t hesitate to take it back to the store. It doesn’t matter if there’s a manufacturer’s note telling you not to or if the retailer’s “return period” has passed. Many retailers will be glad to help. Of course, you can deal directly with the manufacturer if you’d prefer.
  • Insist on a reasonable remedy. If a salesperson or customer service representative refuses to help, try talking to a manager. Be specific about what you want—a new working item to replace the one you bought, a new working item from a competing brand if you have lost confidence in the brand that didn’t work, or your money back.
  • Deal with the manufacturer. Try negotiating the best outcome you can, such as free return shipping. Request a new product, not a remanufactured one.
  • Consider a credit chargeback. If you purchased the item using a credit card and tried in good faith to work things out with the retailer, you may be able to contest the charge with your credit card issuer. There are limitations, including on the amount of time you have to make a claim, but your credit card company might honor your request for a chargeback even after the time limit has passed. —Anthony Giorgianni 

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