Not long ago, I faced that widely shared first-world conundrum: new phone or new phone battery? My phone’s power would mysteriously drain to nothingness shortly after a full charge. I was not a happy camper. Admittedly, I love my cell phone too much. It’s certainly an unhealthy relationship that detracts from more meaningful human interactions. And yet my cell phone relationship remains disturbingly gratifying. So, what to do?
Tantalized by offers of a trade-in discount, I was drawn to a new phone. Yet, nothing was wrong with my current one (we shared many good times during our relatively short-term relationship). And the price! Ghosting my old phone for a new phone would cost me.
So, I contemplated minor surgery for my friend, a battery replacement. My phone maker (I am not going to name names in this piece) would, reluctantly, replace the battery. For roughly a fifth of the cost of a replacement phone (which would come with the features of my current phone plus some updated bells and whistles), the fee seemed unduly high. But, determined to do the right thing environmentally, I opted for a new battery. So far, no regrets. It was like getting a new phone without getting a new phone. A year later, I’m happy as a clam.
As consumers, we often face similar dilemmas—from cracked laptop screens to broken microwaves, coffee makers that stop brewing, and toasters that stop toasting—should we fix or replace, who can we trust for repairs, and what are our rights? Complicating these fix-it-or-nix-it quandaries, product sellers increasingly contrive physical, informational, design, digital, and legal barriers to owner self-repairs. For a deep dive into practices manufacturers employ to constrain consumer product repair, see Fed. Trade Comm’n, Nixing the Fix: An FTC Report to Congress on Repair Restrictions 17–24 (2021) [hereinafter FTC Report]; Aaron Perzanowski, Consumer Perceptions of the Right to Repair, 96 Ind. L.J. 361 (Winter 2021).
This finally brings me to this article’s topic—right-to-repair (RTR) laws and the environment.
RTR laws address barriers to consumer product repair to advance environmental and consumer interests. The environmental benefits of repair rest on the premise that extending product life reduces adverse impacts associated with raw material extraction, goods production and distribution, waste accumulation, and associated greenhouse gas (GHG) emissions that contribute to climate change. In circular economy lingo, extending product use leads towards more sustainable consumption by fostering a closed-loop materials system (use, reuse, remake, recycle, repeat) and discouraging the less sustainable, traditional linear system (take, make, waste). Basically, keeping products useable longer is better for the health of the planet than trashing and replacing them often.
RTR laws target a smorgasbord of products, except when they don’t. RTR laws cover consumer electronics (such as cell phones and tablets), home appliances (such as dishwashers, dryers, and vacuum cleaners), as well as motor vehicles, farm equipment (such as tractors and combines), and medical devices (such as wheelchairs and ventilators). At the same time, the laws tend to explicitly carve out exceptions for, or are narrowly tailored to, one or more product categories. Minnesota’s Digital Fair Repair Act, enacted in 2023—touted as one of the most comprehensive in the nation—covers electronics but expressly excludes video game consoles, motor vehicles, medical devices, farm machinery, and construction equipment. See Digital Fair Repair Act, 2023 Minn. Laws ch. 57 § 11. Similarly, a European Union (EU) proposed RTR law takes a broad approach, defining covered goods expansively, but then narrows RTR protections mostly to household goods (certain washing machines, dishwashers, refrigerators, vacuum cleaners, and electronic displays). See European Commission Proposal for Directive of the European Parliament and of the Council on Common Rules Promoting the Repair of Goods, at 23, 25 COM (2023) 155 final (Mar. 22, 2023) [hereinafter EU Proposed RTR Directive]. In contrast, Colorado’s RTR laws narrowly apply to wheelchairs and certain farm equipment. See Consumer Repair Bill of Rights, 2023 Colo. Sess. Laws 383; Consumer Wheelchair Repair Bill of Rights Act, 2022 Colo. Sess. Laws 2307. Similarly, Massachusetts voters twice approved RTR measures solely targeting car repairs. See An Act to Enhance, Update and Protect the 2013 Motor Vehicle Right to Repair Law, 2020 Mass. Acts 1408. In 2023 alone, U.S. states filed a scattershot of RTR bills aimed at one, some, or many of these product categories. See Nathan Proctor, 20 States File Right to Repair Bills as Momentum Grows, PIRG (Feb. 7, 2023).
The regulatory tools selected to advance product longevity and reduce environmental harms tend to be prescriptive (“command-and-control”) and information oriented. RTR laws may seek to improve product longevity by mandating manufacturers provide access to repair handbooks, tools, and parts (such as sequestered repair manuals, fancy pants tools needed for repairs, and hoarded components) or by eliminating seller-imposed barriers to use of independent repair services (such as software locks and technical protection measures). New York’s RTR law, for example, provides:
An original equipment manufacturer shall make available to any independent repair provider and owner of digital electronic equipment manufactured by or on behalf of or sold by such original equipment manufacturer, on fair and reasonable terms, any documentation, parts, and tools required for the diagnosis, maintenance, or repair of such digital electronic equipment and parts [first made, used, or sold after July 1, 2023].
N.Y. Gen. Bus. Law § 399-NN, sec. 2 (McKinney 2023). Similarly, Massachusetts’s RTR law requires automakers to provide car owners access to vehicle onboard and telematic diagnostic information previously only provided to authorized dealers. See Mass. Gen. Laws ch. 93J-2 § 2 (2023). The Repair Association’s Model RTR law recommends analogous language for software locks and related restrictions:
For equipment that contains an electronic security lock or other security-related function, the original equipment manufacturer shall make available to any owner and independent repair provider, on fair and reasonable terms, any special documentation, tools, and parts needed to access and reset the lock or function when disabled in the course of diagnosis, maintenance, or repair of such equipment.
Model State Right-to-Repair Law § 3 (The Repair Ass’n 2022).
In the European Union, “eco-design” laws—for improving energy efficiency, material recovery, and recycling of specific household appliances—include design requirements for ease of repair. For example, not only must manufacturers make dishwasher spare parts available to owners or independent repairers, but dishwashers must be designed so that spare parts can be installed using commonly available tools and without causing permanent damage to the appliance. See Commission Regulation 2019/2022 of Oct. 1, 2019, Laying Down Ecodesign Requirements for Household Dishwashers Pursuant to Directive 2009/125/EC of the European Parliament and of the Council, art. 5(1)(c); FTC Report, supra, at 48–49. The EU Proposed RTR Directive goes farther. If adopted, the Directive would compel manufacturers to repair products on request of consumers (for free or a fee) and to repair rather than replace goods when repair costs are equal to or less than replacement. See EU Proposed RTR Directive arts. 5, 12.
Other RTR provisions seek to help consumers evaluate repair services. The EU Proposed RTR Directive contains two such provisions. First, the proposal calls for standardization of information to allow consumers to assess and compare repair service options. EU Proposed RTR Directive art. 4. Upon request, manufacturers subject to the provision would need to complete a “European Repair Information Form” setting forth cost of repair, estimated time to repair, and availability of a temporary replacement. Id. Second, EU member states would be required to establish at least one “national platform to matchmake consumers with repairers.” Id. at art. 7. These free online platforms would include, among other things, searchable information for finding repair services, comparing repair costs, identifying repairers that adhere to European and national quality standards, and locating sellers of refurbished goods and buyers of defective goods for refurbishment. Id. Relatedly, in May 2023 the EU Council adopted proposed amendments to the EU Unfair Commercial Practices Directive and EU Consumer Rights Directive, which, if adopted by the EU Parliament, will provide consumers with time-of-purchase information on product repairability and durability (including limits on durability such as software that stops or downgrades product functionality) along with protections against unverified sustainability labels and vague environmental claims (such as “eco-friendly” or “green”). See European Commission Proposal for Directive of the European Parliament and of the Council Empowering Consumers for the Green Transition Through Better Protection Against Unfair Practices and Better Information, COM (2022) 143 final (Mar. 30, 2022).
Federal government enforcement initiatives in the United States present another interesting development. As part of a 2021 Executive Order promoting economic competition, President Biden encouraged the Federal Trade Commission (FTC) to exercise its rulemaking authority to address “unfair anticompetitive restrictions on third-party repair or self-repair of items, such as the restrictions imposed by powerful manufacturers that prevent farmers from repairing their own equipment.” Exec. Order No. 14036, § 5(h)(ii), 86 Fed. Reg. 36987 (July 9, 2021). In response, the FTC announced its intent to closely examine manufacturer repair restrictions for violations of antitrust laws, voted to ramp up RTR-related enforcement, and initiated several RTR actions against manufacturers. See Stacey Halliday et al., New Global Initiatives Push for the “Right to Repair” Consumer Goods, 13(110) Nat’l L. Rev., Apr. 20, 2023. The FTC’s response aligns with authorities it previously identified for addressing repair restrictions, including enforcement and rulemaking. See FTC Report, supra, at 44–45.
Public support and an active RTR movement suggest more regulation ahead. On the table are expanded consumer rights coupled with new post-sale manufacturer responsibilities, a broadening array of covered products, and intensified enforcement.
As someone deeply concerned about the environment and yet in love with my cell phone, I support RTR efforts. I hope, however, advocates and regulators will remain attentive to the possibility of unintended adverse environmental consequences. First, will manufacturers uneasy about decreasing new product sales respond by reducing product durability to increase product turnover? See Chen Jin et al., Right to Repair: Pricing, Welfare, and Environmental Implications, 69 Mgmt. Sci. 1017, 1019 (2023). Alternatively, might manufacturers simply shun design improvements that facilitate reuse and refurbishment to retain repair profits? In either case, EU-like ecodesign measures (design requirements for product qualities such as durability, reusability, repairability, energy and resource efficiency, and recycled content) and extended producer responsibility measures (imposing on manufacturers repair, recycling, and disposal obligations) may be worth consideration.
Second, will extending product lifespan—to reduce environmental impacts associated with raw material extraction, production, and distribution—delay consumer adoption of less-polluting, more-energy-efficient replacements? For example, technology advances ushered by regulatory standards have made new cars, including electric cars, less polluting and more energy efficient than older ones. Full lifecycle analysis may be warranted to find the regulatory sweet spots between product repair and replacement measures to maximize environmental benefits.
Some companies appear to be taking the leap towards more repairable products. One example is Fairphone. Promoted as the smartphone that “cares for people and the planet,” the company’s philosophy is fairness and sustainability through material sourcing, worker advocacy, design for easy repair, recycling, and reducing e-waste. Fairphone, How Do You Make a Fairer Phone? (2023). Please don’t tell my current phone!