I. The right to repair; Repairability Index
Right to repair
The “right to repair” is a tool which can potentially be used to slow down the use of resources, leading to reduced greenhouse gas emissions and waste. It may also prompt greater demand for second hand and refurbished products.
A Briefing Paper about the right to repair prepared in 2022 as background material for the European Parliament provides a useful overview of what the right entails. It explains that the “right to repair” can mean several things: repair during the manufacturer’s legal guarantee period (in Europe the legal guarantee for defects to consumer products from the time of delivery is 2 years), repair after the manufacturer’s guarantee period has expired, or the right of consumers to repair products themselves using technical information provided by the manufacturer. Technical information is often withheld by manufacturers who claim copyright protection.
Generally, products may be replaced for several reasons: when they fail (absolute obsolescence), when the consumer desires a new product, even if the old product is still functional (relative obsolescence), or when a product fails because it is designed to fail after a specific period (planned obsolescence).
In December 2022, the Digital Fair Repair Act was signed into law in New York State, USA, to become effective on 1 July 2023. The law only covers electronic devices purchased at retail and, according to Consumer Reports (USA), whilst being “a good start”, it could have been both clearer and extended to more products, such as larger appliances and agricultural equipment. This is not the first right of repair law in the USA, with many other States legislating for rights of repair for specific products, for example, automotive (Massachusetts, from 2012), or wheel chairs (Colorado, effective from 1 January 2023).
This European Consumer site gives an overview of current repair rights in Europe, and for how long manufacturers are required to have spare parts available (for example, 10 years for washing machines). In this context, it is noted that some European states have reduced GST rates for repair of certain products to incentivise repairs: for example, in the Netherlands, GST is charged at 9% instead of the usual 21% for small repairs on bicycles, shoes, leather goods, clothing, and household linens.
Whilst the right to repair exists in Europe under the usual applicable product guarantees (see above), the European Union has been looking at enhancing that right for some time. Various amendments to existing directives are being considered, such as giving preference to repair over replacement of products, extending the minimum liability period for new and second-hand goods, and restarting a new liability period after repair. A proposal for such a Directive was expected in 2022 but this has been postponed.
On 30 March 2022, the European Commission published its Proposal as regards empowering consumers for the green transition through better protection against unfair practices and better information”, as outlined in its briefing paper. New rules are proposed which would empower consumers to make informed choices by providing them with information on product durability and repairability; promote the extension of the legal guarantee period; and ban misleading green claims. This proposal, as well as the Proposal “establishing a framework for setting eco-design requirements for sustainable products”, which looks at durability of products, minimum design standards, and labelling, are currently being considered. An Eco-design regulation for mobile phones and tablets (which sets design standards as to durability and energy efficiency and seeks to improve repairability) has been approved in principle but is awaiting formal adoption.
New Zealand’s current law on consumer rights of redress for faulty products is contained in Parts 2 and 3 of the Consumer Guarantees Act 1993 (CGA). Sections 6 and 7 provide for guarantees as to acceptable quality of products. No time is specified for the guarantee to remain in place. Guarantees under the CGA commence when goods are “supplied” and remain in place for a reasonable time. What is a reasonable time will depend on the type of product and is ultimately a question to be determined by a court. Section 12 of the CGA further provides that a manufacturer must take reasonable action to have repair facilities reasonably available for a reasonable time. However, s42 allows manufacturers to contract out of that obligation.
Much has already been written on the topic of the right of repair in New Zealand. Notably, in the report “Pathways for Right to Repair in Aotearoa New Zealand”, WasteMINZ’s Product Stewardship Sector Group Right to Repair working group describes in detail the problem of e-waste in particular, and recommends ways (in paragraph 5) in which the Government could strengthen the right to repair in legislation, by making changes to the CGA and the Waste Minimisation Act 2008 (WMA). This includes removing s42 of the CGA and specifying a fixed period during which spare parts must be available. Other tools to limit waste, discussed in the WasteMINZ Report, include labelling products, banning products from landfill, product stewardship schemes, mandating design that lasts, amending copyright laws so as to enable consumers to repair products themselves by using the manufacturers design information, and incentivising manufacturers to offer product-as-a-service options instead of selling goods.
Offering products as a service (PaaS) is an interesting concept. Instead of selling a product in a one-time transaction (which product is likely to end up in landfill when it fails), the producer sells the services of such product, for example leasing a printer and offering “the service of printing”. The PaaS model has circular potential as the manufacturer still owns the product (and thus the residual value). The product returns to the producer where it can be recycled and given a new life. PaaS is spreading into the consumer market and is now also being used in other product categories, such as electric bikes, washing machines, kitchen appliances, solar panels and much more.
Another tool in the repair toolbox is making consumers aware of the extent to which products are easily repairable so as to influence their choice whether to buy a product.
In 2020, France adopted the Anti-waste Law, which introduced a repairability index (Index) for certain products. The Index is mandatory for products sold in French territory and must be displayed on the product. In November 2022, the range of products was extended and the Index now applies to household appliances (washing machines, dishwashers and vacuum cleaners), garden equipment (lawn mowers and water blasters) and electronic equipment (tablets, smartphones, laptops and TVs). The Index (which rates products out of 10) is calculated on the basis of availability of technical documentation, the ease of disassembly of the product, the availability and price of spare parts, and certain product specific criteria. Obviously, the aim of the law is to increase the number of repairable products: the Index makes consumers aware of repair options when purchasing a device but should also prompt manufacturers to consider repairability at the design stage. A European Consumer site suggests improvements to the Index (under “France”) here.
New Zealand has not enacted legislation to provide for a repairability index. Consumer NZ is lobbying the Government for the introduction of such a repairability index in New Zealand. In the meantime, it is using the French Index to assist New Zealand consumers.
In summary, there are sufficient resources and examples available to allow the Government to enact law changes so as to enhance the right to repair in support of its goal to transition to a circular economy by 2050. One of the questions may be to what extent the right to repair should be generally available or enhanced only for a limited range of products such as e-products and whiteware.