YEAR 2019 N.º 1

ISSN 2182-9845


Alfredo Ferrante

“Paths are made by walking”: Towards a coordination between the effective buyer's interests protection and the programmed obsolescence.

Although there is still generally no consolidated awareness of the legal and social implications of planned obsolescence (an example of this is the poor regulation of the phenomenon), this is not a recent manifestation.
Almost a century ago, it was proposed as a beneficial, and even mandatory, measure in the early 1930s to get out of the economic crisis in the United States; Bernard London was a pioneer in this sense.
Its genesis can be glimpsed in an article published in the first advertising magazine in the United States, Printers' Ink (May 10, 1928, n. 6), where it was stated that “an article that does not wear out is a tragedy for the business".
This phenomenon has been echoed by the cinematographic world in the fifties with the film "The Man in the White Suit", which narrated the adventures of an inventor who seemed to have invented an indestructible fabric that was not stained or dirty, or - some decades later - in the indirect reference to that phenomenon in the Willy Wonka’s invention of the "Everlasting Gobstopper".
The evolution of products originally intended to last indefinitely, such as light bulbs that have been operating for more than a century in a fire station in California, is undermined by economic operations and even cartels have agreed to find solutions that modify efficient standards in terms of length, like the iconic Phoebus cartel. Although such behaviors are condemned (USA vs General Electric Company et al., October 8, 1942, 82, F. Supp. 7539), it continues to be found that economic transactions are imposed against the purpose of creating a product totally efficient and that is why active behaviors are required to stop this phenomenon. Among them, for example, the convictions of last October 2018 involving Apple and Samsung in Italy (see Autorità Garante Della Concorrenza E Del Mercato, "Provvedimento n. 27363. PS11009 - Samsung-Aggiornamento Software" and "Provvedimento n. 27365, PS11039 - Apple-Aggiornamento Software”).
For this reason, the economy has been dedicated, on the one hand, to a radical change in the economic vision, imposing a good that is not necessarily durable, and on the other, creating the need for consumption that dispenses the functionalities of the good. The phenomenon of planned obsolescence can be analyzed from many perspectives, such as economic, social, criminal, and also a civil one, specifically, in terms of consumer protection. Effectively scheduling the obsolescence of a product can even constitute a threat of contractual good faith, of the creation of consent and even of effective protection available to the consumer. So, it is worth asking if the planned obsolescence will modify, on the one hand, the standards of informative duties and, on the other, if it imposes a rethinking of the remedial hierarchy established in the sale and in the system that currently exists in the Directive 44/99 in case of lack of conformity.
Does planned obsolescence require a change in the paradigm of effective consumer protection in the b2c contract in the aspects just mentioned? This question is particularly relevant as there are practically no regulations regarding the phenomenon.
Contrary to this, there is a tendency to start regulating it, as in France, where this practice is penalized in certain cases (Cf. art. 99 Loi n. 2015-992, of August 17, 2015 regarding to transition energy, and art. L 433-1 French Penal Code). The sensitivity for its regulation will also lead to the fact that, from January 2020, certain electrical appliances and electronic products must have a label indicating a reparability index calculated in ten parameters (e.g. see Ministère De La Transition Ecologique Et Solidarie and Ministère De L'économie Et ​​Des Finances, 2018: Press kit, Roadmap, Circular Economy, How Can We Improve Our Waste Collection?). This experience, in part, has already been advanced by the FNAC chain, which in June of this year launched the first reparability index for its “Labofnac”.
The importance of adequate regulation is further manifested when the United Nations, since 2015, has predisposed in its Agenda for 2030 on sustainable development, a "responsible production and consumption" as one of its goals.
To all that has been said, it should be added that in the framework of the reform on the new “digital single market” in the debate within the framework of the European Union of June 6, 2018 regarding the proposal for directive n. 637 - initially intended to repeal Directive 44/99 and replace Directive proposal n. 635 -, it was evidenced by some countries that the remedial system in the sale of defective goods in future legislative texts does not take into account planned obsolescence or its repercussions. The short answer, on that occasion, was to affirm that it is rather a problem of environmental policy, when, on the other hand, what is true is that it must necessarily be taken into account when modifying the legislative texts that mark and delineate the effective protection of the buyer in the sale of a property with lack of conformity, such as the reform of Directive 44/99.
So, a new and first step towards coordination between buyer protection and planned obsolescence seems to have been made. In the last text of last December 2018, the new text of the amended Proposal for a Directive - which still wants to repeal Directive 44/99 and restructure the proposed directive n. 637 - becomes aware that, in reality, goods are not only material but may also have “digital elements” and that is why it comes to be considered that the lack of updates can be considered a lack of conformity, providing an explicit obligation for the sellers of facilitate updates of assets with digital elements (cf. art. 5, 8 and 8 bis). The text states that the seller is obliged "to provide updates during the period of time that the consumer can reasonably expect, although it limits this obligation to a period of two years" or for what is eventually provided by the contract.
So, if becoming aware that planned obsolescence has relevant practical effects on the effective protection of the buyer and on the remedial system in the event of a lack of conformity is a great step, a much more considerable effort is still required.
For now, this big step falls short for at least one double reason: on the one hand, by treating the problem only for a certain type of goods and, on the other hand, by not associating this phenomenon with the informational duties that should come into play in these cases, since new information may be created in the face of incorrect information types of contractual breach that have not yet been considered with the necessary detail by the European and national legislator.
As Antonio Machado would say, "paths are made by walking" and it seems that we are on the right track.

Alfredo Ferrante is Professor of Civil Law at the Alberto Hurtado University, Santiago do Chile