This concept is defined in Article L.213-4-1 of the Consumer Code which provides that "Planned obsolescence is defined by all the techniques by which a marketer aims to deliberately reduce the lifespan of a product in order to increase its replacement rate.

We had to wait for the adoption of the law on energy transition, on July 22, 2015, for this text to see the light of day, after several years of waiting and failures. However, the first legislative proposal, on the initiative of environmental senator Jean-Vincent Place, dates from 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, criteria of beauty, criteria of luxury or even elegance evolve rapidly, such as objects or accessories, which lose their value simply because they are no longer "fashionable".

Indirect obsolescence is the fact that certain products become obsolete when 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 ceases to produce ink cartridges specific to these models.

L’obsolescence par notification is an evolved form of self-expiry which consists in designing a product so that it can signal to the user that it is necessary to repair or replace, in whole or in part, the device. This is the case, for example, of certain printers which warn the user that the ink cartridges are empty when the latter are not.

Obsolescence by incompatibilities is a technique that aims to render a product useless by the fact that it is no longer compatible with later versions. This is the case, for example, of old models of iPhones that have become unusable because they are incompatible with new updates.

functional obsolescence is that 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, proves to be higher than the price of a new device sold in the trade, it then becomes expensive. want to repair the damaged device.

The text uses the expression "all the techniques", which makes it possible to encompass both technical and commercial practices and therefore makes it possible to incriminate various forms of planned obsolescence. 

What penalty?

As for the penalty for the offense of planned obsolescence, Article L. 213-4-1 of the Consumer Code provides for a two-year prison sentence and a fine, the maximum amount of which may be €300,000. In addition, the criminal courts may increase the amount of the fine to 5% of the average annual turnover, calculated on the last three annual turnovers known at the date of the facts.

During parliamentary debates, opponents of the creation of this new offense invoked the difficulties of implementing repression, in particular with regard to the administration of evidence. Indeed, it seems difficult to establish the reality of planned obsolescence before a criminal court. Thus, two things need to be proven: first, the proof of the existence of a technique intended to deliberately reduce the life of the product, then that of fraudulent intent the entity responsible for placing the product on the market which has knowingly reduced the lifespan of its product, from its design. As a result, it is clear that it is difficult for a single consumer to take legal action on this basis.

Consumer associations act

These issues highlight the essential role of consumer protection associations, such as UFC que Choisir or HOP (Stop Planned Obsolescence), and control institutions such as the Directorate General for Competition, Consumption and the Repression of Fraud (DGCCRF), which has real investigative powers and competent personnel, for the revelation and denunciation of this offence.

This is how the Halte à l'obsolescence programmed (HOP) association filed two complaints before the court of Paris, against the two industrial giants that are Apple and Epson. These are the first two group actions in this area.  

On September 18, 2017, the HOP association, with its lawyer Maître Emile Meunier, filed several complaints for the offense of planned obsolescence and deception concerning the inkjet printers and printer cartridges of the four market leaders (Epson, HP, Canon, Brother). The association focused on the Epson case, following the publication of an unpublished investigation report, showing among other things that certain cartridges used in printers, also designed by the manufacturer Epson, indicated that they were "empty". while 20% of the ink was still available. On November 24, 2017, the Nanterre public prosecutor's office opened a preliminary investigation.

Two months later, on December 27, 2017, following recent revelations from several media reporting iPhone 6, 6S, SE and 7 slowdowns after updating to the latest operating system, the HOP association filed a complaint against the Apple group. Note 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 Directorate General for Competition, Consumer Affairs and Fraud Prevention (DGCCRF).

In both cases, the hardest part is yet to come: the stage of the administration of evidence. The use of specialized experts is essential to detect the techniques used to implement planned obsolescence. As for the proof of the fraudulent intention of the manufacturers, in the face of the legitimate incompetence of the judges unfamiliar with the technical characteristics or the industrial manufacturing process of the products, things promise to be complex. However, in the coming months, whistleblowers or employees may decide to transmit information to provide evidence to facilitate the investigative work of the experts.

It is likely that in the long term, the legislator will realize the need to improve the regulations in force, given the complexity of the burden of proof of the offence. Or perhaps the judges seized of the current cases will decide to circumvent the text of the law by considering elements of circumstantial evidence. 

For example, in the case of Apple, they could possibly consider that the fact of producing several models of iPhones successively, in a short period of time, and by installing operating systems on them that are incompatible with the previous models, marks the intention of the manufacturer to force the consumer to replace his mobile in order to remain a customer of the Apple brand.    

Today the investigations opened by the courts of Paris and Nanterre are still in progress, and can quite lead to a conclusive result for consumers. 

What is planned obsolescence?