6 Dec 2018
Product-specific Laws Combatting Planned Obsolescence to be Debated over Coming Days
While there is no legal definition of the term at EU level, planned (or built-in) obsolescence in industrial design is deemed to be a commercial policy involving deliberately planning or designing a product with a limited useful life. This is done so that the product will become obsolete or non-functional after a certain period of time.
Hong Kong sellers of – especially – electronic goods will recall that EU lawmakers have been increasingly grappling with the complex question of what to do about products that break down all too soon, and manufacturers that make it difficult to allow access to components within products for affordable repairs to be carried out. There are still no specific EU rules that do away with planned obsolescence, although this year’s amendment to the Waste Framework Directive (by means of Directive 2018/851 – see: Article 9 therein) makes it clear that the Member States must take measures to prevent waste generation. The Directive requires that these measures shall, at least, encourage the design, manufacturing and use of products that are resource-efficient, durable (including in terms of lifespan and absence of planned obsolescence), reparable, re-usable and upgradable.
A European Parliament Resolution of 31 May 2018, concerning the Ecodesign Directive, also restates the necessity for existing legislation to be extended beyond the mere energy efficiency of products. The European Parliament has stated that ecodesign regulations must systematically address the full lifecycle of each product group they cover, by addressing durability, robustness, reparability and upgradability, as well as the use of critical raw materials.
In keeping with the above, initial drafts were tabled by the European Commission, for changes to the ecodesign rules covering lighting products, electronic displays (e.g., monitors and televisions), washing machines, dishwashers and fridges. The aim was to make it binding on manufacturers to improve the design of their products in order to ensure that key components could easily be repaired or replaced; make spare parts available; and give independent repairers access to technical information to more efficiently carry out affordable repairs.
It seems that the European Commission has had a change of heart, however, perhaps due to the alleged intense lobbying by certain electronics manufacturers:
- An early draft of proposed changes to the repair and resource-related provisions for washing machines and dishwashers imposed requirements for disassembly. Such requirements are necessary for the purposes of repair, as well as for material recovery and recycling. In the latest version of the draft laws, however, the wording has been shortened to “requirements for dismantling for material recovery and recycling”. The provision related to repair, so as to prolong the life of the products concerned, have been deleted.
- For dishwashers, there had been a draft provision on design, requiring easier access to and removal of components in the design of dishwashers, and the documenting of dismantling operations that are needed to access said components. This provision too has been watered down.
- In the case of lighting, the earlier draft made it incumbent on manufacturers and importers to ensure that light sources and separate control gears could be easily removed without permanent mechanical damage by the end-user. The wording here too has been changed.
- As for “displays”, including televisions, monitors and signage displays, suppliers would have been obliged to provide, upon request, information relevant for repair purposes to third parties, including on disassembly and replacement of defective components. Such wording no longer exists in the latest draft regulation.
- Finally, for refrigerators, the early draft regulation had stated that manufacturers must be able to supply end-users with spare parts for at least seven years (ten years in the case of other specific parts). The reference to end-users has been limited, while several of the spare parts may be supplied only to “professional repairers”.
The proposals are henceforth set to be reviewed by the EU Member States, with a view to their adoption, in the coming days and weeks. While some of them may be more sympathetic to arguments against planned obsolescence, it is believed that others are already known to oppose more stringent reparability standards, including Germany, Italy and the UK.