The “right to repair” movement continues to pose challenges for manufacturers and designers of consumer products. From a consumer’s perspective, the right to repair is deceptively simple: I purchased the product, so I am entitled to repair it myself or to take it to a technician of my own choosing for repairs. Legally, this is permissible, but practically it has been difficult, as the tools, parts, and know-how have not been readily available. The increasing complexity of the technology in consumer products such as computers, smart phones, home appliances, automobiles, and farm equipment has also made repairing those items more difficult and costlier. This difficulty has become particularly pronounced with the growth of software as a product. And, with product cycles continuing to shorten, consumers often find it easier and cheaper to simply replace their laptops and household appliances than to repair them. This practice has, in turn, led to environmental concerns about waste and recycling, challenging manufacturers to think about the circularity of their products. Rethinking the structure of the economy from linear to circular has become more than just a trendy way of describing the sharing, reusing, refurbishing, and, in particular, the repairing of products, and is going to change the way that goods are designed, manufactured, used, and, now, repaired.
The default position for manufacturers has historically been to allow only authorized dealers to repair their products. By controlling the number of authorized repair locations, tools, and knowledge, manufacturers have greater control over repair quality, which ultimately protects consumers’ safety, privacy, and security, including cybersecurity. There are also concerns with faulty repairs, not to mention managing warranties, product liability risks, and reputational worries. Further still, disclosing product manuals and parts and tools could compromise manufacturers’ intellectual property rights and reduce incentives for technological advancements.
For manufacturers and designers, there are already lessons to be learned as litigation, legislation, regulatory efforts, consumer demands, and industry initiatives from around the world continue to take shape. While the right to repair would seem ideally suited to regulatory efforts, many manufacturers and designers are not waiting for governments to mandate action. Class action lawsuits, changing consumer demands, and increased awareness of environmental concerns, including the introduction and growth of environmental, social, and governance (ESG) principles, have gained momentum, and many companies are listening and responding. Further, as various markets increasingly look to achieve a “circular economy” beyond just championing individual ESG initiatives, the right to repair is sure to become a more central feature to these efforts.
Litigation will continue to both lead and follow the legislation and regulation already underway as consumers and regulators seek to enforce and clarify new requirements on manufacturers. In addition to navigating a changing legal landscape and consumer demands, manufacturers and sellers will need to ensure that their products live up to their marketing to avoid greenwashing claims. The downstream effects of right to repair on product warranties and safety are also likely to require litigation. The intended and unintended consequences of right to repair efforts are sure to keep product liability lawyers, intellectual property lawyers, and in-house counsel occupied.
The idea of a circular economy strives to achieve the continuous flow of materials and goods to minimize the extraction of resources from the earth as well as the amount of waste deposited in landfills. In previous eras, there was the slogan, Reduce, Reuse, Recycle. The circular economy is the modern expression of this tagline.
In Circular Economy Introduction, the Ellen MacArthur Foundation describes the circular economy as “a systems solution framework that tackles global challenges like climate change, biodiversity loss, waste, and pollution” based on three principles driven by design: (1) eliminate waste and pollution; (2) circulate products and materials (at their highest value); and (3) regenerate nature.
Transitioning to a circular economy will place significant demands on manufacturers and designers. As shown below, consider the “butterfly” diagram of the circular economy, locating parts and product manufacturers squarely within the middle of the circles.
Or consider also the following from the United Nations Environment Program, which introduces remanufacture as one of the modern-day “Rs”:
There are now a lot of “Rs” for manufactures to consider.
While the right to repair is only one element of the transition to a circular economy, it represents an impactful point requiring a substantial shift in the practices of manufacturers and designers. The circular economy, it has been said, is a “different way of doing business.” A right to repair most directly helps to stretch the useful life of products. This extension would be achieved by incentivizing repair through cheaper and more reliable access to repairs. Both diagrams above show the pathway towards a circular economy, leading out from designers and manufacturers, who are clearly being challenged to consider the end of life of their products and product redesign. It is estimated that the global economy is now only 7.2% circular, leaving substantial opportunities. The most innovative companies of tomorrow are likely to be those that have turned inwards to examine the full life cycle of their products and supply chains.
And, despite recent pushback and the intervention of partisan politics, the manufacturing sector continues to be shaped by ESG factors, pushing macroeconomic trends and policy, and remaining an integral part of the environmental and social conversation. ESG requires a measured and balanced approach. On the one hand, “environmental advocacy groups are utilizing available legal processes to initiate greenwashing claims against high-profile companies, accusing them of inadequate efforts.” On the other hand, there are investors and stakeholders who are penalizing companies for being “too woke.” ESG permeates all areas of the manufacturing sector, and the associated legal implications are far-reaching. In many areas of practice, organizations are being judged on their current, future, and past performance.
There is increasing motivation around the world to legislate a right to repair. As mentioned above, while the motivations are varied, growing consensus suggests the need for some form of the right to repair.
In the United States, the right to repair movement has its roots in the Magnuson-Moss Warranty Act (MMWA), which was enacted in 1975 and is enforced by the Federal Trade Commission (FTC). Amongst other things, the “anti-tying” provision of the MMWA clarified how written warranty provisions could be used when marketing products to consumers, while also making it illegal for a manufacturer to void a warranty or deny coverage if a customer has a repair or maintenance performed by an independent repair shop or has used a third-party replacement part.
More recent initiatives at the federal level in the United States have given momentum to the right to repair movement, including President Biden’s Executive Order on “Promoting Competition in the American Economy,” and, subsequently, the FTC’s prioritization of right to repair objectives and agreement to sign onto the standards outlined in this Executive Order. President Biden signed Executive Order 14036 on July 6, 2021, which addressed a breadth of antitrust issues, including the right to repair. In particular, the Order called for the Chair of the FTC to exercise its statutory rulemaking authority “in areas such as . . . 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 . . . .”
This Executive Order followed a 2021 Federal Trade Commission (FTC) report entitled “Nixing the Fix,” which examined “consumer protection and anti-trust issues relating to repair restrictions, with particular emphasis on those imposed by mobile phone and car manufacturers.” The FTC noted that the Magnuson-Moss Warranty Act had not kept pace with technological developments—a common pacing problem afflicting legislative and regulatory attempts.
In July 2021, the FTC voted to make right to repair a priority. The FTC asked the public to submit complaints detailing violations of the Magnuson-Moss Warranty Act. Subsequently, in July 2022, the FTC announced three right to repair cases and proposed settlements against companies alleged to have violated the Magnuson-Moss Warranty Act and the Federal Trade Commission Act by including warranty provisions that unlawfully conveyed that their warranties would be voided if a customer used third-party parts or independent repairers.
In July 2022, the FTC reaffirmed its focus on illegal repair restrictions, noting that such restrictions “can significantly raise costs for consumers, stifle innovation, close off business opportunities for independent repair shops, create unnecessary electronic waste, delay timely repairs, and undermine resiliency.”
The Biden administration has kept its focus on the circular economy through its Net-Zero Game Changers Initiative, which is meant to drive technological innovations to enable the United States to meet the administration’s goal of cutting greenhouse gases (GHGs) by fifty to fifty-two percent in 2030 and get to net-zero emissions by no later than 2050. One aspect is designing products and systems “to deliver the same or better services for people with recycling and re-use in mind.
At the state level, numerous efforts have been made to establish a substantive right to repair. In 2023, thirty-three states and Puerto Rico considered right to repair legislation. The bills targeted various consumer goods from farm equipment, medical equipment, automobiles, and electronics generally. And, in two high-profile laws enacted in 2023, Colorado has required agricultural equipment manufacturers to provide resources for individuals to repair their own agricultural equipment, while New York has required manufacturers (with several exceptions, including motor vehicles, medical devices, and off-road equipment) to provide consumers with certain documentation, parts or tools for electronic equipment manufactured for the first time and sold or used in New York after July 1, 2023. In fact, there are fewer states without any right to repair legislation passed or under consideration, including Alabama, Arizona, Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Nebraska, Nevada, North Dakota, Rhode Island, Utah, Wisconsin, and Wyoming.
The right to repair legislation in Massachusetts provides an insightful case of where the various interests on the right to repair have collided. In 2013, Massachusetts became the first state to pass right-to-repair legislation following a general-election ballot question that required automotive manufacturers to provide diagnostic and repair information to owners and third-party repair facilities. Following proposed updates to the legislation in 2020 to include “mechanical data” and “telematics systems data,” the Alliance for Automotive Innovation sued Massachusetts, arguing that the new law drove up manufacturers’ costs and compromised car owners’ privacy. The lawsuit delayed the implementation of the 2020 updates, though the Massachusetts Attorney General informed the federal judge that she intended to start enforcing the law on June 1, 2023, notwithstanding the outstanding decision in the case. However, the National Highway Traffic Safety Administration (NHTSA) at first instructed automakers in a June 13, 2023, letter to ignore the state law. Following this advice, in June 2023, Senators Elizabeth Warren and Ed Markey wrote to U.S. Secretary of Transportation Pete Buttigieg and NHTSA Deputy Administrator Sophie Shulman protesting that advice. NHTSA’s concern was that the law violated the Federal Motor Vehicle Safety Act and, in particular, cybersecurity and the ability to remotely access and send commands that affect a vehicle’s critical safety systems. In a reversal, NHTSA has now said that the law can proceed with some security changes, and it expressed the view that it “strongly supports the right to repair.” That is a lot going on and an unusual way for a law to get enacted.
California also provides an interesting example of the impact of the right to repair, but for different reasons. The Song-Beverly Warranty Act requires manufacturers who provide an express warranty when selling an electronic or appliance product to make available to service and repair facilities sufficient service literature and repair parts. For products with a wholesale price of between $50.00 and $99.99, this duty lasts for three years from the date a product model or type was manufactured, and with products with a wholesale price of $100 or more, the duty lasts for seven years.
Two new proposed pieces of legislation before the California State Assembly—SB244 and SB271—would, respectively, require electronics and appliance manufacturers to make parts, tools, and documentation available to independent shops and product owners, and require powered wheelchair manufactures to provide documentation, parts, embedded software, firmware, and tools used to inspect, diagnose, maintain, and repair the wheelchair to an owner or an independent repair provider for the purposes of providing service on the equipment in the state, on fair and reasonable terms and costs.
Apple Inc., while initially opposing Bill SB244 and historically opposed to a legislated right to repair, has made a sudden shift and now supports the right to repair legislation so long as it provides protection of the intellectual property rights of product manufacturers. More on this below.
In Canada, the right to repair is being addressed at the federal level through proposed changes to Canada’s Copyright Act, which currently prohibits the bypassing of Technological Protections Measures (TPMs), also known as digital locks. Digital locks can restrict access to internal software information, and render non-authorized replacement parts unusable, effectively impeding the right to repair. Bill C-244, An Act to Amend the Copyright Act, was introduced in February 2022 and proposes a blanket exception to intellectual property legislation to allow parties to circumvent TPMs for the purpose of diagnostics, maintenance, or repair. The bill passed its third reading in the House of Commons and is currently before the Senate. With bipartisan support, it is likely to be passed into law in 2024.
In addition to proposed legislation, the Competition Bureau Canada is exploring methods of implementing a right to repair with significant changes to the federal Competition Act proposed that would prevent manufacturers from refusing, in an anticompetitive manner, from providing the means to repair devices and products. The Bureau presented a brief to the Office of Consumer Protection on the durability and repairability of goods in Canada, which formed the basis of the Competition Commissioner’s recommendations on amendments to Quebec’s Consumer Protection Act. Key recommendations include the guaranteed availability of repair parts and services, including all parts that allow consumer goods to be repaired safely and providing consumers with more information on the minimal functional life of household appliances. Further, in late 2023, the federal government proposed changes to the Competition Act so that it will be a “refusal to deal” if a party declines to provide a means of diagnosis or repair of a product, subject to civil monetary recovery and administrative monetary penalties. These proposed changes, should they be passed into law, are sure to be litigated until their boundaries are clarified.
And with the release of its 2023–2024 budget, the Canadian federal government committed to move forward with right-to-repair legislation in 2024 to reduce high repair fees for broken appliances and electronic devices. Specifically, Budget 2023 announced that the federal government would work to implement a right to repair, with the aim of introducing a targeted framework for home appliances and electronics in 2024. The government has stated an intention to “launch consultations, including on the right to repair and the interoperability of farming equipment, and work closely with provinces and territories to advance the implementation of a right to repair.”
Quebec recently became the first Canadian province to enact right to repair legislation that also addressed planned obsolescence and introduce an anti-lemon automobile rule. First tabled in June 2023, Bill 29, an Act to Protect Consumers from Planned Obsolescence and to Promote the Durability, Repairability and Maintenance of Goods, was passed in October 2023. Bill 29 introduced a range of new protections for Québec consumers. It is specifically aimed at manufacturers, retailers, automobile dealers, and car makers, and impacts merchants who sell extended warranties. A ban was imposed to prohibit “the business of trading in goods for which obsolescence is planned,” while allowing owners or long-term lessees of an automobile the right to have a court declare their automobile a “seriously defective vehicle” when certain conditions are met, such as repeated attempts to repair certain defects affecting the vehicle. Although delayed for two years, Bill 29 requires that replacement parts, repair services, and information necessary to maintain or repair goods, including any diagnostic software and updates, be available for a reasonable time after the contract has been signed. Moreover, a merchant or manufacturer must make these items and services available at a reasonable price. Bill 29 defines a reasonable price as one that “does not discourage the consumer from accessing it.”
In January 2021, France instituted a “repairability index,” which mandates the display of information on “repairability” of some electronic and electrical equipment so prospective buyers can factor it into their decision-making. Further, in 2022 France announced a program to provide grants in the amount of ten to forty-five euros to assist in the repair of certain home appliances. The program has a budget of €410 million until 2027 and aims to facilitate a circular economy.
Similarly, in 2021, Austria and the German state of Thuringia incentivised repairs by financing a repair bonus to reimburse consumers for part of their costs after a similar program’s success in the Austrian city of Graz. The Austrian program provides vouchers that cover fifty percent of the repair cost, up to €200 per product. Thuringia introduced the program in June 2021 and had run out of funds by October due to its popularity, though it ultimately renewed the program.
In 2021, the United Kingdom introduced right to repair regulations, which aimed to “increase producer responsibility, reduce energy usage and electrical waste, and enable consumers to identify the most energy efficient products on the market.” Following Brexit, the United Kingdom’s approach was to mirror similar requirements in EU regulations.
In Australia, the Productivity Commission examined consumers’ ability to repair goods, the cost of repair, and whether third parties could access repair manuals and parts. In December 2021, the government released the results of the Commission’s review in a report to the public, which contained a number of recommendations to enable greater access to repair supplies, increase the availability of product information, and reduce electronic waste.
In July 2022, new legislation took effect, which required automobile manufacturers to share service and repair information with independent repairers at a fair market price. The law applies to automobiles manufactured after January 1, 2002. It is policed by the Australian Competition and Consumer Commission, which can issue fines of up to $10 million for noncompliance.
In March 2023, the European Commission adopted a new proposal on common rules promoting the repair of goods, which will result in savings for consumers and support the objectives of the European Green Deal by reducing waste, among others. The proposal will make it easier and more cost-effective for consumers to repair as opposed to replace goods. Additionally, more demand will translate into a boost to the repair sector while incentivising producers and sellers to develop more sustainable business models. The Commission’s proposal has to be adopted by the European Parliament and the Council. The right to repair is seen as a key component of the European Union’s plan to achieve a circular economy by 2050.
The legislative efforts globally are demonstrative of the shift that is occurring towards the consumer’s desire for reparability, as well as the multiplicity of ways in which a right can be meaningfully implemented.
To be clear, the right to repair movement does not suggest that repair is currently unavailable to consumers. And it may be fair to ask whether legislating a right to repair is necessary, as, in many cases, repairs are available through the manufacturer or the manufacturer’s authorized dealers. This set-up is preferable for manufacturers for several reasons. By insisting that repairs take place through authorized repair locations, manufacturers have greater control over repair quality, which ultimately protects consumers’ safety, privacy, and security. Faulty repairs performed by the independent repair shops or by the consumers themselves can lead to product liability risks and reputational harms. Additionally, disclosing product manuals, parts, and tools could compromise the company’s intellectual property.
Consider the evolution of the changes made by Apple discussed above towards repairs in the consumer electronic space. While Apple had previously made its iPhone parts and tools available to third-party repair shops, in 2022 it released its Self Service Repair programs and made parts, tools, and manuals to repair its latest iPhone and Mac laptop models available to consumers directly. There are surely many motivators behind Apple’s continued changes, including consumer demand, and environmental concerns, as well as legal and business challenges. However, its abrupt change of position towards California’s proposed right to repair legislation may be indicative of a broader embrace of the right to repair—or at least the realization that it may be better to get behind the legislation at an earlier stage.
In the agricultural sector, with vocal proponents of the right to repair, John Deere, which has been dealing with class action litigation on these issues, announced in March 2022 that it would enhance the capabilities and availability of existing diagnostic tools in order to facilitate easier repair. John Deere began allowing customers and independent repair shops to purchase Customer Service ADVISOR (a digital database of operator, diagnostic, and technical manuals for John Deere Products) directly from the John Deere website. John Deere also announced plans to roll out a mobile device interface that will permit users to download secure software updates directly to embedded controllers on select equipment. On December 4, 2023, John Deere announced an enhanced self-repair solution, which will be available initially to U.S. customers through its Equipment Mobile app. The program will enable customers to download secure software updates remotely to embedded controllers on compatible equipment.
Though John Deere has demonstrated a commitment to improving repair options for its customers, it nevertheless continues to face right-to-repair litigation. In November 2023, a U.S. district judge in Illinois rejected John Deere’s request to dismiss consolidated lawsuits alleging that the company violated antitrust law. Those cases are heading to an adjudication on the merits.
In the other direction, Tesla recently succeeded in having a proposed antitrust class action lawsuit dismissed in California. The proposed class alleged that Tesla compelled customers to pay high prices and endure long waits for repairs by monopolizing the market for vehicle maintenance and replacement parts. The U.S. district judge in San Francisco found that customers in the proposed class action had failed to show either that the alleged issues were “not generally known” at the time of purchase, or that customers could not anticipate the costs to maintain their vehicles. The judge also dismissed claims under California’s consumer protection laws.
Concerns may also arise surrounding the effect of warranties, and the effectiveness of Sale of Goods legislation that imply specific conditions into most contracts of sale, including that the goods are fit for a specific purpose and that the goods are of merchantable quality.
Notwithstanding [various legal requirements affecting product warranties (such as the MMWA in the United States)], if consumers can repair their products independently, manufacturers will have to reconsider warranty provisions provided with a product. . . . Warranties—whether provided by the manufacturer or through Sale of Goods legislation—are meant to provide guarantees on the performance of a product, and will have to be rethought to address the prospect of personal repairs. Consumers are unlikely to benefit.
Any form of right to repair legislation must address the various legal and safety risks to ensure that repairs do not jeopardize compliance with safety legislation and standards. The agricultural sector is again a good area in which to see the impact. Modern farming is dependent upon specialized and increasingly complicated machinery, which is being overlaid with increasingly sophisticated and data-driven agricultural practices. Tractors and other equipment are tested, designed, tested some more, then manufactured, and sold to ensure their safe operation, often in accordance with strict laws and regulations. The repair of such equipment should also follow stringent safety protocols, as the faulty repair of a tractor can alter its performance and result in health and safety risks.
The threat of cybersecurity attacks is even more pressing with the growth of connected tractors, smart equipment, and technologies. Again, this was the particular threat holding up passage of Massachusetts’s right to repair legislation and impacts any connected device. However, this concern is particularly significant within the agricultural sector, where worries about food security extend across borders. It is no longer too far afield to contemplate an attack on digital farm equipment that could damage large swaths of agricultural land. In fact, automated tractors have already been hacked. Food supply chains need protection. Legislation that permits the bypassing of digital protections, even if couched within a right to repair, may have unintended consequences for the world’s food security that may not make it appropriate in the agricultural sector.
Manufacturers and distributors (the latter of whom may be considered learned intermediaries for the purposes of imposing liability) also face a duty to warn all consumers of potential dangers associated with the use of a product. The duty to warn extends to foreseeable product misuses, and product liability law quickly becomes complicated with the imposition of a right to repair. By the same token, users of products have a duty to read and heed warnings and instructions supplied with a product or bear the consequences of any resulting injuries. Could a manufacturer or distributor ever fully grasp the myriad ways in which its products and software, if opened to repairs by all consumers, could be modified? How the law would respond in these situations needs to be considered and understood.
And it may be that the right to repair may not have the intended environmental benefits. Environmental concerns, expressed in the modern language of ESG and the circular economy, are forcing designers and manufacturers of all products to rethink the design and end-of-life of their products. For example, some commentators have highlighted that repair is not always the most environmentally beneficial option. As technological developments unfold, electronic and electric products become more energy-efficient. In some circumstances, purchasing a new product will be less environmentally taxing than repairing the older, broken one. The problem lies not with the repair of products, but the fact that we are buying too much stuff in the first place. This is another problem for another day.
Well-intentioned right to repair legislation can also produce negative, unanticipated repercussions. For example, such legislation could incentivize practices that make repair impossible or impractical, such as gluing batteries into devices. Notably, the Harvard Business Review raised the prospect that while the right to repair movement may break up manufacturers’ monopolies on the repair market, companies may respond to losses associated with the right to repair by adjusting their prices, thereby possibly detracting from any environmental gains. That is, the right to repair may benefit neither the consumer nor the environment.
In other cases, manufacturers and designers have criticized right-to-repair policies for stifling innovation—for example, the European Union’s imminent transition to a universal charger for electronic devices. While not purely a right to repair policy, it aims to reduce e-waste and avoid the redundancy of older electronic devices.
Pressures from consumers, potential class actions, corporate assessments through the lens of ESG principles, and a growing number of right-to-repair legislative efforts will continue to challenge manufacturers and designers to rethink not only their product design but the entire product life-cycle. In-house counsel will continue to play an important role in monitoring, mitigating, and transferring risk associated with right-to-repair issues.
And, as mentioned, the threat of cybersecurity attacks is a very pressing concern with the growth of connected products, smart equipment, and technologies. This will become even more pronounced with the explosion of AI.
Regardless of whether or not regulation will be the most effective approach going forward, it is clear that right-to-repair efforts around the world are gaining traction. At its most basic, the right to repair is about extending the lifetime of goods, and companies should consider policies relating to resource use, design, and the circular economy. Whether a company is at the review stage, or at the point of setting targets, incorporating circular concerns is becoming essential.
Also important will be a review of repair policies and warranties. Changing consumer expectations will have an impact here too. This can be accomplished by ensuring that the boardroom, business, and legal departments have a cohesive approach to policies and warranties, while keeping lines of communication open for developments on the right to repair on both the business and legal spheres.
The complexity of the right-to-repair movement and the myriad legal and legislative responses are certainly making it more difficult for product designers and manufactures to live up to changing expectations. Compliance and risk assessments will become increasingly more difficult with evolving approaches and laws, at least until there is a broader global harmonization, if that is even possible.
But, in the meantime, and to come full circle, maybe the new adage will become, if it’s broke, fix it.
