Introduction

Planned obsolescence, also referred to as “programmed obsolescence” or “built-in obsolescence,” is a hot topic at the confluence of several contemporary issues; it is increasingly becoming a strategic challenge for companies. It can be argued argue that planned obsolescence fosters economic growth and encourages competition by ensuring a high demand for new products and challenging technical advances. On the other hand, large scale manufacturing of products undeniably puts pressure on resources and exacerbates waste production, causing further environmental damage and pollution. Planned obsolescence also creates frustration for consumers and can undermine trust in the market and industry in general.

To date, regulation of planned obsolescence, except in France, remains scattered, but recent calls for and moves towards a more sustainable and circular economy have placed the practice in the spotlight. The European Commission and European Union (EU) Member States are being urged to take further steps.

 

Planned obsolescence, what are we talking about?

There is currently no global definition for “planned obsolescence.” However, according to the European Consumer Organisation (BEUC), planned obsolescence refers to “a wide range of techniques that certain manufacturers might use to shorten the functional lifespan of products and force consumers to make premature replacements in order to continue selling in saturated markets.[1]

The French association Halte à l’obsoclescence programmée (hereinafter, “HOP”) distinguishes between 3 main types of planned obsolescence:

  1. Technical obsolescence occurs when the product is no longer functioning due to the limited lifespan of one of its essential and irremovable components; a further distinction can be drawn with indirect obsolescence when spare or replacement parts are made inaccessible or withdrawn from the market.
  2. Style obsolescence occurs when new products are promoted as being more effective than their recent predecessors in marketing campaigns.
  3. Software obsolescence concerns the renewal of software in smartphones or computers, with devices not running efficiently after successive software updates.

Planned obsolescence is not a recent phenomenon. It can be traced back to 1924 with the well-known “Phoebus cartel,” which engineered a shorter lifespan for the incandescent light bulb. The lifespan of a pear-shaped household bulb was reduced from 1,500 to 2,000 hours to 1,000 hours by early 1925.[2]

 

A legal framework yet to be refined

To date, France is the only country in the world that has legislation on planned obsolescence. The 2015 Law on energy transition introduced a definition of planned obsolescence into French consumer legislation[3] and made it a criminal offence: Planned obsolescence is punishable by two year’s imprisonment with a fine of up to EUR 300,000 (or up to 5 percent of the company’s average early turnover).[4]

Italy and Belgium have also tried to regulate planned obsolescence without success thus far:

  1. In Italy, the first law proposal took place in 2013. A new proposal was presented in 2018 to the Chamber of Deputies[5] and Senate.[6] If adopted, planned obsolescence would be punishable by up to 2 years in prison or a fine of up to EUR 300,000.
  2. In Belgium, a first proposal intended to fight against planned obsolescence of energy-related products[7] was presented in 2012. In February 2018, the Economy Commission of the Chamber rejected a law proposal on planned obsolescence initiated in 2016[8].

At the EU level, there is currently no legislation specifically targeting planned obsolescence. However, planned obsolescence can, under certain conditions, be tackled by existing EU legislations, such as:

  1. Planned obsolescence can be regarded as a lack of conformity with the contract (namely, a defect) when it becomes apparent within two years from the delivery of the product. In such conditions, consumers have legal guarantee rights as they can invoke the legal guarantee under the Consumer Sales and Guarantees Directive[9].
  2. Planned obsolescence can also be regarded as a breach of Article 7 of the Unfair Commercial Practices Directive,[10] where a trader fails to inform the consumer that a product has been designed with a limited lifetime.[11]
  3. The Eco-design Directive[12] allows the European Commission to establish mandatory minimum requirements for ‘reparability’, the life-time of products as well as information requirements on their estimated life-time. The Eco-design Directive is implemented through product-specific Regulations, directly applicable in all EU countries[13]. Such mandatory minimum requirements already exist, for example, for components of vacuum cleaners[14] and light bulbs[15].
    Furthermore, the EU Action Plan on a Circular Economy of 2015 stated that “the Commission will promote the reparability, upgradability, durability, and recyclability of products by developing product requirements relevant to the circular economy in its future work under the Eco-design Directive, as appropriate and taking into account the specificities of different product groups[16].
  4. Article 9 to the Waste Directive[17] establishes a general requirement on Member States to take measures to prevent waste generation. Such measures should at least “encourage the design, manufacturing and use of products that are resource-efficient, durable (including in terms of life span and absence of planned obsolescence), reparable, re-usable and upgradable.

 

Towards a better regulation of planned obsolescence within the EU?

The European Economic and Social Committee (hereinafter, “the EESC”) was the first EU institution to advocate for regulating planned obsolescence. In 2013, the EESC called for a total ban on planned obsolescence highlighting that it would lead to “more jobs, better consumer protection and a boost to sustainable development.[18]

On July 4, 2017, the European Parliament approved its “resolution on a longer lifetime for products: benefits for consumers and companies.[19] The resolution is not legally binding, but demonstrates the European Parliament’s political willingness to act.

The European Parliament has also called on the European Commission and EU Member States to encourage the design of robust, durable and high-quality products; to promote repairability and longevity; to ensure better information for consumers and to strengthen the right of the legal guarantee of conformity.

In terms of planned obsolescence, the European Parliament has, more specifically, called on the European Commission to:

  1. Encourage, where practicable, the establishment of minimum resistance criteria covering, inter alia, robustness, repairability and upgradeability for each product category.
  2. Encourage, in the event of a recurrent lack of conformity or a repair period in excess of one month, the extension of the guarantee by a period equivalent to the time required to carry out the repair.
  3. Consider a voluntary European label, covering, in particular: the product’s durability, eco-design features, upgradeability in line with technical progress and repairability.
  4. Propose an EU-level definition of planned obsolescence for tangible goods and software.
  5. Examine the possibility of establishing an independent system that could test and detect the built-in obsolescence in products.

Regarding software, the European Parliament also called for greater transparency on upgradeability, security updates and durability.

 

Enforcement cases in Member States

Recently, the subject of planned obsolescence has been given another dimension with action being taken at the national level in Italy and France.

In Italy, on October 24, 2018, the Italian Competition Authority (hereinafter, “the ICA”) fined Samsung and Apple for unfair commercial practices in violation of the Consumer Code following the release by both companies of some firmware updates for their mobile phones. The ICA found out that those updates “caused serious malfunctions and significantly reduced their performance, in this way speeding up their replacement with more recent products”. Furthermore, the ICA ascertained that Apple did not “adequately inform consumers about some essential characteristics of lithium batteries, such as their average duration and deterioration factors, nor about the correct procedures to maintain, verify and replace batteries in order to preserve full functionality of devices.” This lead to another breach of the Consumer Code. As a result, the two companies have been fined: EUR 5 million for Samsung and EUR 10 million (5 million for each of the two contested practices) for Apple.[20]

In France, HOP filed a first complaint in September 2017 for planned obsolescence and fraud. The complaint targets ink-jet printers and printer cartridges manufactured and sold by Epson, HP, Canon and Brother. The  practices of the manufacturers aimed at deliberately shortening the shelf-life of the printers and cartridges are at stake. [21]In December 2017, the public prosecutor decided to open a preliminary investigation.

In December 2017, HOP continued its work and filed a second complaint against Apple on the obsolescence of the iPhone 6, 6s, SE and 7 models[22]. A preliminary investigation was opened in January 2018.

 

Conclusion

It seems that regulators are slowly catching up with consumer concerns and challenging the planned obsolescence practices that are seemingly widespread. More legislation and more national actions can be expected on this topic in the months and years to come. This article will now self-destruct.

 

[2] IEEE Spectrum, “The great lightbulb conspiracy”, 24 September 2014.

[3] The definition of planned obsolescence is now to be found in article L. 441-2 of the Consumer Code.

[4] Article L. 454-6 of the Consumer Code. If only the company is prosecuted, the sentence will only be pecuniary.

[13] European Commission, Eco-design legislation, 8 August 2018.

[16] Communication from the Comission, “Closing the loop – An EU action plan for the Circular Economy”, COM(2015) 614 final, 2 December 2015.

[18] EESC, “Call for a total ban on planned obsolescence”, 17 October 2013.