For several years, electronics manufacturers have adopted a business model that involves pushing consumers to replace their equipment some time after purchasing it. This is called planned obsolescence.
This concept is defined in Article L.213-4-1 of the Consumer Code which provides that "Planned obsolescence is defined by the set of techniques by which a marketer aims to deliberately reduce the lifespan of a product in order to increase its replacement rate."
It took the adoption of the Energy Transition Act on July 22, 2015, for this text to see the light of day, after several years of waiting and setbacks. However, the first legislative proposal, initiated by Green Senator Jean-Vincent Place, dates back to 2013.
Obsolescence in all its forms
There are different forms of planned obsolescence, some condemnable, others not.
The oldest is aesthetic obsolescence which causes certain products to undergo subjective obsolescence. Fashions, beauty criteria, luxury criteria or even elegance evolve quickly, such as objects or accessories, which lose their value simply because they are no longer "in fashion".
Indirect obsolescence is the fact that some products become obsolete even though they are fully functional because the associated products are not or no longer available on the market. This is the case, for example, of certain printers which become de facto obsolete when the manufacturer stops producing the ink cartridges specific to these models.
Obsolescence by notification is an advanced form of self-expiration that involves designing a product so that it can alert the user that the device needs to be repaired or replaced, in whole or in part. This is the case, for example, with some printers that warn the user that the ink cartridges are empty when they are not.
Obsolescence due to incompatibilities is a technique that aims to render a product useless by making it no longer compatible with later versions. This is the case, for example, of older iPhone models that become unusable because they are incompatible with new updates.
Functional obsolescence is when a defect affecting the product, such as a part that no longer works, renders the entire product unusable. Thus, if the cost of repair, consisting of the price of the replacement part, the cost of labor and transport costs, turns out to be higher than the price of a new device sold commercially, it then becomes expensive to want to repair the damaged device.
The text uses the expression "all techniques", which allows it to encompass both technical and commercial practices and therefore allows various forms of planned obsolescence to be incriminated.
What sanction?
As for the penalty for the offense of planned obsolescence, Article L.
During the parliamentary debates, opponents of the creation of this new offense cited the difficulties of implementing repression, particularly with regard to the administration of evidence. Indeed, it appears difficult to establish the reality of planned obsolescence before a criminal court. Thus, two things must be proven. : first the evidence of the existence of a technique aimed at deliberately reducing the lifespan of the product, then that of fraudulent intent of the entity responsible for placing the product on the market which knowingly reduced the lifespan of its product from its design stage. As a result, it is clear that it is difficult for a consumer alone to take legal action on this basis.
Consumer associations take action
These issues highlight the essential role of consumer protection associations, such as UFC Que Choisir or HOP (Halte à l'Obsolescence Plannée), and of control institutions such as the General Directorate for Competition, Consumer Affairs and Fraud Control (DGCCRF), which has real investigative powers and competent staff, in revealing and denouncing this crime.
This is how the association Halte à l'obsolescence programmede (HOP) filed two complaints before the Paris court, against the two industrial giants Apple and EpsonThese are the first two class actions in this matter.
On September 18, 2017, the HOP association, with its lawyer Emile Meunier, filed several complaints for planned obsolescence and deception concerning inkjet printers and printer cartridges from the four market leaders (Epson, HP, Canon, Brother). The association focused on the Epson case, following the publication of a previously unpublished investigation report, showing, among other things, that some cartridges used in printers, also designed by the manufacturer Epson, indicated that they were "empty" when 20% of the ink was still available. On November 24, 2017, the Nanterre prosecutor's office opened a preliminary investigation.
Two months later, on December 27, 2017, following recent revelations from several media outlets reporting that iPhone 6, 6S, SE and 7 slowdowns After the latest operating system update, the HOP association filed a complaint against the Apple group. It should be noted that the United States and Israel have also filed complaints for planned obsolescence against the Apple brand. On January 5, 2018, the Paris prosecutor's office opened a preliminary investigation against Apple for "planned obsolescence" and "deception." The investigation was entrusted to the General Directorate for Competition, Consumer Affairs and Fraud Control (DGCCRF).
In both cases, the hardest part is yet to come. : the stage of administration of proof. The use of specialized experts is essential to detect the techniques used to implement planned obsolescence. As for proving the fraudulent intent of manufacturers, faced with the legitimate incompetence of judges who are not well informed about the technical characteristics or the industrial manufacturing process of the products, things promise to be complex.However, it is possible that in the coming months whistleblowers or employees may decide to pass on information that would provide evidence to facilitate the experts' investigative work.
It is likely that, in time, the legislature will realize the need to improve the current regulations, given the complexity of the burden of proof of the offense. Or perhaps the judges hearing the current cases will decide to circumvent the law by considering indirect evidence.
For example, in the case of Apple, they could possibly consider that producing several iPhone models successively, in a short period of time, and installing operating systems incompatible with previous models, shows the manufacturer's intention to force the consumer to replace their mobile in order to remain a customer of the apple brand.
Today, the investigations opened by the Paris and Nanterre courts are still ongoing and could very well lead to a conclusive result for consumers.
What is planned obsolescence?
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