A Right-to-Repair Compliance Update

For more than two decades, a “right-to-repair” movement has been gaining momentum in the United States, evolving from a grassroots effort focused on independent automobile repair into a bona fide cultural and legal force with widespread ramifications. Big picture: The goal of the right-to-repair movement is to require manufacturers to provide consumers and independent service organizations with parts, manuals, and other repair-related materials. Over the past decade, the focus of right-to-repair advocates has expanded from automobiles to other consumer goods and electronics, as well as agricultural and medical equipment.

While federal legislation has faltered, state legislators around the country have proposed and enacted right-to-repair laws, including in California, Colorado, Maine, Massachusetts, Minnesota, New York, and Oregon. Several were enacted or take effect this year. These laws are not uniform. They focus on different right-to-repair principles, protect different classes of consumers, prescribe different enforcement mechanisms, set varying civil penalties, and exempt products from different industries. Moreover, certain state laws apply retroactively to products sold since 2021, but others apply only prospectively.

This patchwork of state legislation creates a compliance burden for corporate counsel, requiring consideration of the scope and applicability of each state’s law and an assessment of how it is to be enforced, including potential penalties for noncompliance. The purpose of this article is to provide an overview of such factors.

The Right-to-Repair Movement

Key players in the right-to-repair movement span numerous industries, from tech-based civil liberties organizations to official coalitions of independent service organizations. The fact that these groups represent a variety of different constituencies with shared legislative goals has given the movement some teeth and has led to recent legislative victories.

The right-to-repair movement was born in tandem with the introduction of the computer chip into consumer and industrial machines. In addition to hardware considerations, the use of computer chips has made devices potentially more complicated to fix and has also rendered such repairs subject to proprietary software.

As summarized by one prominent repair advocacy group, the policy objective of the right-to-repair movement is to force manufacturers across a range of industries to

1. make repair information available to consumers and/or independent repair shops,
2. make parts and tools available to the same groups,
3. allow unlocking of devices, and
4. accommodate repair in the design of products.

The first two policy objectives form the backbone of legislative lobbying efforts. The third objective, most relevant to consumer electronics, refers to the difficulty that owners and other third parties face in “jailbreaking,” or modifying the software on their devices. The last objective has less to do with legislative policy and is instead aimed at increasing the ease of repairability for difficult-to-repair products like earbuds.

In May 2021, the Federal Trade Commission (FTC) published Nixing the Fix, a report to Congress detailing the current landscape of right-to-repair restrictions nationwide. The report listed the following practices used to restrict repair rights:

• Product designs that [inhibit] or prevent repair;
• Unavailability of parts and repair information;
• Designs that make independent repairs less safe;
• Policies or statements that steer consumers to [authorized] repair networks;
• Application of patent rights and enforcement of trademarks;
• Disparagement of [third-party] parts and independent repair;
• Software locks and firmware updates; or
• End User License Agreements.

Fed. Trade Comm’n, Nixing the Fix: An FTC Report to Congress on Repair Restrictions 6 (2021). In addition to addressing the various types of repair-related restrictions in play throughout the United States, the report examines (and rejects) business justifications for each of them, except intellectual property protection. As a result, the Nixing the Fix report serves as a foundational document for advocacy by the right-to-repair movement.

A Patchwork of State Right-to-Repair Legislation

Seven states have passed right-to-repair legislation: California, Colorado, Maine, Massachusetts, Minnesota, New York, and Oregon.

As is evident from the summary below, the various state laws differ in material ways. For example, while the laws in Maine and Massachusetts apply only to automobiles, the laws in California, Colorado, Minnesota, New York, and Oregon apply to consumer electronics. Colorado’s law goes even further and applies to agricultural equipment.

The enforcement mechanisms and penalties differ as well. For example, the laws in California, Minnesota, and Oregon rely on the state’s attorney general to enforce violations, but the laws in Maine, Massachusetts, and New York authorize a private right of action. Certain states (e.g., Colorado) prescribe no civil penalties, while others (e.g., California and Oregon) authorize fines beginning at about $1,000 per day for initial violations.

In addition, each state exempts specific types of products from its ambit. The exemptions include construction equipment in California, mining equipment in Colorado, agricultural equipment in Minnesota, e-bikes in New York, and video games in Oregon.

What follows is a summary of the key compliance considerations for each state law:

• California (Cal. Pub. Res. Code § 42488)
  • Scope & Mandate: A manufacturer of consumer electronics must make available to owners and independent repair providers the parts, tools, and documentation sufficient to diagnose, maintain, or repair the product, on fair and reasonable terms.
  • Enforcement: City, county, or state attorney.
  • Penalties: $1,000 per day for the first violation, $2,000 per day for the second violation, and $5,000 per day for the third and subsequent violations—beginning July 1, 2024.
  • Carveouts: Agricultural, construction, utility, industrial, mining, outdoor power, forestry, and lawn and garden equipment; alarm systems; and video game consoles.
  • Retroactive Application: Applies for (1) at least three years after the last date that a product model or type is manufactured, for consumer electronics ranging between $50 and $99.99 in cost; or (2) at least seven years after the last date that a product model or type is manufactured, for consumer electronics that cost more than $100.
• Colorado (Colo. Rev. Stat. Ann. §§ 6-1-501 to -511, 6-1-1501 to -1505)
  • Scope & Mandate: A manufacturer of agricultural equipment, powered wheelchairs, or consumer electronics must make available to owners and independent repair providers the parts, tools, and documentation (including “embedded software”) sufficient to diagnose, repair, and maintain the product, on fair and reasonable terms.
  • Enforcement: No enforcement mechanism designated.
  • Penalties: No civil penalty scheme; remedy is repair of the device, and any damages are the costs of the repair if done by another party.
  • Carveouts: Motor vehicles; medical devices (except wheelchairs); digital electronic equipment used in medical settings; industrial, utility, construction, compact construction, mining, forestry equipment, or road-building digital equipment; electric vehicle–charging infrastructure equipment; outside-the meter commercial or industrial electrical equipment; portable generators, energy storage systems, fuel cell power systems, or power tools; marine vessels, aviation, all-terrain sport vehicles, and recreational vehicles; renewable energy, internet, and video systems; video game consoles; and fire alarm and intrusion-detection systems.
  • Retroactive Application: None as to agricultural equipment or powered wheelchairs. As to consumer electronics, applies to products manufactured for the first time and first sold or used in Colorado on or after July 1, 2021.
• Maine (Me. Rev. Stat. Ann. tit. 29-A, § 1810)
  • Scope & Mandate: A manufacturer of automobiles must provide an owner or independent repair provider access to the vehicle’s diagnostic system, on fair and reasonable terms.
  • Enforcement: State attorney general and private cause of action.
  • Penalties: In a private cause of action, a plaintiff may recover “any remedies under law and treble damages of $10,000, whichever amount is greater.”
  • Carveouts: Engine immobilizer and other security-related electronic features.
  • Retroactive Application: Applies to model year 2002 and later.
• Massachusetts (Mass. Gen. Laws ch. 93K, §§ 1–6)
  • Scope & Mandate: A manufacturer of automobiles must provide an owner or independent repair provider access to the vehicle’s diagnostic system, on fair and reasonable terms.
  • Enforcement: Private right of action, with treble damages available.
  • Penalties: No civil penalty scheme.
  • Carveouts: Engine immobilizers and other security-related electronic features.
  • Retroactive Application: Applies to automobiles from model year 2002 and later, and to heavy-duty vehicles from model year 2013 and later.
• Minnesota (Minn. Stat. Ann. § 325E.72)
  • Scope & Mandate: A manufacturer of consumer or enterprise-level electronic devices (e.g., commercial computing systems) must make available to owners and independent repair providers the parts, tools, and documentation sufficient to diagnose, maintain, or repair the product, on fair and reasonable terms.
  • Enforcement: State attorney general.
  • Penalties: Maximum civil penalty of $25,000.
  • Carveouts: Medical equipment; agricultural equipment; automobiles; specialized cybersecurity tools; and any tools or parts that (1) would disable or override antitheft security measures, (2) could reasonably be used to compromise cybersecurity, or (3) would provide external access to trade secrets or personal information.
  • Retroactive Application: Applies retroactively to products made since July 1, 2021.
• New York (N.Y. Gen. Bus. Law § 399-nn)
  • Scope & Mandate: A manufacturer of digital electronic equipment must make available to owners and independent repair providers the parts, tools, and documentation needed to diagnose, maintain, or repair the product, on fair and reasonable terms.
  • Enforcement: State attorney general and private cause of action limited to “authorized repair providers.”
  • Penalties: $500 per violation.
  • Carveouts: Medical devices; automobiles; off-road motor vehicles (e.g., agriculture, marine, or all-terrain equipment); commercial and industrial electrical equipment; electric bicycles; and home appliances with a digital electronic product embedded within.
  • Retroactive Application: Applies prospectively and only to electronic devices manufactured after July 1, 2023.
• Oregon (2024 Or. Laws ch. 69)
  • Scope & Mandate: A manufacturer of consumer electronics (1) must make available to owners and independent repair providers the parts, tools, and documentation needed to diagnose, maintain, or repair the product, on fair and reasonable terms; and (2) is prohibited from “parts pairing,” i.e., from making certain parts incompatible in a manner that prevents consumer or independent repair.
  • Enforcement: State attorney general.
  • Penalties: $1,000 per day per violation, beginning July 1, 2027.
  • Carveouts: Automobiles; video game consoles; medical devices; heat, ventilation, or air conditioning recharges for refrigerant gases; devices for solar energy; energy storage systems; and cell phones.
  • Retroactive Application: Applies prospectively and only to electronics manufactured after July 1, 2025.

Right-to-repair laws have been proposed, but not yet enacted, in at least 20 other states, including Alabama, Alaska, Arizona, Connecticut, Delaware, Hawaii, Illinois, Indiana, Kentucky, Michigan, Missouri, New Jersey, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Vermont, Washington, and West Virginia. Several bills, including those in Arizona, Illinois, and Hawaii, largely mirror California’s consumer electronics–focused bill. Proposed bills in Indiana and Missouri would extend right-to-repair coverage to both consumer electronics and agricultural equipment. Still other states seek to expand already-existing right-to-repair protections. In Minnesota and New York, for example, legislators have proposed to “close loopholes” by reducing the categories of products exempted from those bills. Like the state laws already on the books, the proposed laws are not uniform; they would protect different classes of consumers, prescribe different enforcement mechanisms, set varying civil penalties, and exempt different products.

Risk Mitigation Through Voluntary Memoranda of Understanding

Meanwhile, manufacturers in the agricultural equipment and automobile industries have entered into voluntary memoranda of understanding (MOUs). These MOUs allow industry participants to negotiate the scope of repair rights and avoid legislation, while at the same time reassuring consumers and independent repair shops that they will be able to access parts and associated repair information. In the MOUs, manufacturers agree to share certain information and tools with consumers and independent repair professionals in exchange for guarantees of intellectual property protection.

In 2014, for example, trade associations representing automotive manufacturers and independent repair organizations signed an MOU based on the Massachusetts law, which created a limited but general right to repair automobiles nationwide. Key industry participants in the agricultural industry followed suit in 2023, signing MOUs with four leading manufacturers of agricultural equipment to allow farmers to diagnose, maintain, and repair their equipment. As part of the agreement, right-to-repair advocates agreed to not introduce or support any legislation that imposed obligations beyond the scope of the MOU.

Federal Right-to-Repair Activity

While federal lawmakers have been unable to pass legislation, right-to-repair policy has evolved quickly during the Biden administration, which has made repair rights a federal priority. For example, the FTC’s May 2021 Nixing the Fix report alerted manufacturers that “the FTC supports expanding consumers’ repair options through appropriate law enforcement and self-regulatory options” and that it remained committed “to work[ing] with federal [and] state legislators to ensure that consumers have choices when their products need repairs.” Lesley Fair, Nixing the Fix Report Explores Consumer Repair Issues, Fed. Trade Comm’n (May 7, 2021).

In June of 2021, President Biden issued Executive Order No. 14036, directing the FTC to promulgate rules protecting consumers’ ability to repair purchased goods. Two weeks later, the commission unanimously voted to adopt a policy statement in which it pledged to “prioritize investigations into unlawful repair restrictions under relevant statutes such as the Magnuson-Moss Warranty Act and Section 5 of the [FTC] Act.”

The Magnuson-Moss Warranty Act (Act) prevents a company from conditioning a consumer product warranty on the use of brand-name parts or services unless they are provided for free. It does, however, allow warranty exclusions for damage caused by unauthorized service or parts. The Act does not empower the FTC to seek civil penalties; instead, it permits only injunctive relief. From 2009 to 2019, the FTC brought only one case under the Act; but in 2022, the commission increased enforcement efforts and initiated enforcement actions against three different manufacturers, resulting in consent orders in which the manufacturers agreed to modify their warranty terms.

In addition, the FTC has supported state right-to-repair legislation, and both the FTC and the Department of Justice (DOJ) have recently submitted position statements in federal litigation in support of right-to-repair plaintiffs. In March of 2024, the FTC and DOJ filed a joint comment to the U.S. Copyright Office urging it to consider right-to-repair exemptions for the Digital Millennium Copyright Act.

Despite the executive order and these efforts, the FTC has not yet issued a proposed rule. But even without rulemaking, the FTC and DOJ remain committed to promoting right-to-repair policy, and the movement is gaining traction at the federal level.

Conclusion

In sum, manufacturers across a range of industries—no longer limited to automobiles—need to meet the requirements of existing state laws and monitor or anticipate the requirements of soon-to-be-enacted laws. Against a patchwork of nonuniform state laws, staying in compliance will require careful examination of the various classes of products and consumers covered by each law, as well as the different enforcement mechanisms and penalties.