In the past, when an expensive consumer product stopped working, the owner could take it somewhere and get it fixed. More recently, when a product stops working, the owner often hears, "We can't fix this, you have to buy a new one." This is because as products become more complex and more digital, access to physical parts alone is often insufficient to repair many products. Consumers now need the digital code operating the device or even tools to interact with software stored in remote servers rather than in the device itself. Also, manufacturers increasingly restrict access to software embedded in devices using technological protection measures (TPMs). These TPMs, as well as restrictions on replacement parts and services, often require consumers to purchase new products rather than repair old ones.
Frustrations with this experience have created a global "right to repair" movement to require manufacturers to make repairing their products easier. This article discusses the recent history and current status of these "right to repair" efforts.
U.S. Legislation
Right-to-repair advocates first proposed federal legislation to address these issues in 2001 with the Motor Vehicle Owner's Right to Repair Act (MVORRA). MVORRA would have required auto manufacturers to provide customers and third-party technicians with diagnostic information and parts to "diagnose, service, maintain, or repair" cars. MVORRA never passed.
In 2012, Massachusetts passed the Massachusetts Auto Repair Law (MARL). Like MVORRA, MARL required carmakers to give customers and third-party technicians tools, information and parts "on fair and reasonable terms" to allow repairs. However, Massachusetts regulators have shown little interest in enforcing MARL.
In 2014, the repair lobby created a Model State Right to Repair Law (the "Model Law"). The Model Law would require manufacturers of digital electronic equipment to "make available to owners and independent repair providers, on fair and reasonable terms, the documentation, parts, and tools used to diagnose, maintain, and repair such equipment" and permit repair providers to work around TPMs. Over 40 states have introduced versions of the Model Law. To date, several states have passed their own right to repair laws including Colorado, Minnesota, and New York, which adopted the Digital Fair Repair Act in 2022. This law applies to products manufactured after July 1, 2023, and does not apply to automobiles, home appliances and medical devices. Across several states and in the U.S. Congress, right to repair bills are working their way through the legislative process.
When Covid-19 hit in 2020, health organizations struggled to maintain critical medical equipment, especially ventilators. As they reactivated old medical devices, they were delayed by manufacturers who required repairs by authorized outside technicians, who then had to enter areas exposed to Covid-19. In response, in August 2020, the Critical Medical Infrastructure Right-to-Repair Act (CMIRRA) was introduced in Congress. CMIRRA would have allowed owners of critical medical devices to circumvent TPMs to repair their devices during the Covid-19 public health emergency. That same month, the Fair Repair Act was also introduced. That bill was broader than CMIRRA, requiring manufacturers to provide documentation, parts and tools to owners and independent technicians on fair and reasonable terms. Neither bill ever advanced to the floor of the House or Senate.
Federal Enforcement and Consumer Class Actions
In July 2021, President Biden issued an executive order on "Promoting Competition in the American Economy" (EO 14036). EO 14036 ordered the FTC to draft rules against "unfair anti-competitive restrictions on third-party repair or self-repair of items." The administration also demanded greater FTC action to encourage repairs in farm equipment, consumer electronics and the healthcare sector.
Shortly thereafter, the FTC threatened enforcement actions against Harley-Davidson, Weber Grills and Westinghouse. The FTC focused on provisions in the Magnuson-Moss Warranty Act (the "Warranty Act") prohibiting "tying" the validity of a warranty to the use of articles or services from a particular company and company policies that voided warranties if customers buy parts or repairs from anyone else. They also alleged violations of the FTC Act based on similar policies.
Consumer class action lawsuits against Deere & Co., Tesla, Harley-Davidson and others have asserted claims based on the Warranty Act, the FTC Act, antitrust statutes and state consumer protection statutes. These lawsuits are all in the early stages. These pending consumer class actions will likely provide significant insight into manufacturers' potential liabilities.
Foreign Right to Repair Laws
Outside the United States, several countries have passed right-to-repair laws that I believe go beyond American legislation.
In 2019, France passed a law creating a "repairability index" measuring the ease of repairing certain consumer goods based on manufacturers' disclosures. The index may include additional goods in the future. One year on, has the French repair index kept its promises?
In October 2019, the European Commission adopted regulations requiring that spare parts and technical information for consumer goods be made available to third-party repair providers. The United Kingdom adopted similar regulations in 2021.
In 2021, Australia created the Motor Vehicle Information Scheme, requiring automobile manufacturers to give information allowing repairs to third-party repair providers such as the Australian Competition & Consumer Commission, MVIS information for data providers, repairers and RTOs. Broader right-to-repair reforms are popular in Australia and further legislation appears likely.
In 2022, Canadian legislators introduced Bill C-244 targeting TPMs that restrict access to consumer software needed for repairs. The bill appears likely to pass later this year.
Finally, in March 2023, the European Commission issued a proposed directive "on common rules promoting the repair of goods." This directive would require manufacturers to offer free repairs shortly after any purchase and permit third-party repairs outside of any manufacturer guarantee periods. Although individual EU members still have to approve this directive before it becomes law, polls indicate it has significant support.
Conclusion
As you can see, efforts to pass right-to-repair statutes in the United States have been largely unsuccessful on both the state and federal levels. However, EO 14036, as well as recent FTC enforcement activity and consumer class action lawsuits have increased the potential liabilities of companies that restrict the ability of consumers to repair their products. Meanwhile, the EU, the UK, France, Australia and Canada have all shown an increasing willingness to deal with right-to-repair issues through legislation.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
