What is planned obsolescence?

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For several years, manufacturers of electronic devices have adopted an economic model of pushing consumers to replace their equipment shortly 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 all the techniques by which a marketer aims to deliberately reduce the life of a product in order to increase its replacement rate. "

It was not until 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. Yet the first legislative proposal, initiated by environmental senator Jean-Vincent Place, dates from 2013.

Obsolescence in all its forms

There are different forms of planned obsolescence, some reprehensible, others not.

The oldest is aesthetic obsolescence which causes some products to undergo subjective obsolescence. Fashions, beauty criteria, luxury criteria or even elegance evolve rapidly, 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 when they are fully functional because the associated products are not or no longer available on the market. This is the case, for example, with some printers which become de facto obsolete when the manufacturer stops producing the ink cartridges specific to those models.

Obsolescence by notification is an advanced form of self-expiration that involves designing a product so that it can alert the user to the need to repair or replace, in whole or in part, the device. This is the case, for example, with some printers that warn the user that the ink cartridges are empty when the ink cartridges are not.

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

Functional obsolescence is that a defect in the product, such as a part that no longer works, renders the entire product unusable. So if the repair cost, made up 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. want to repair the damaged device.

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


What sanction?

As for the sanction of the crime 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, criminal courts may increase the amount of the fine to 5% of the average annual turnover, calculated on the last three annual turnover figures known at the date of the facts.

During parliamentary debates, opponents of the creation of this new offense cited the difficulties in implementing the repression, in particular with regard to the taking of evidence. Indeed, it appears difficult to establish the reality of planned obsolescence before a criminal court. Thus, it is necessary to prove two things: first the proof of the existence of a technique aimed at deliberately reducing the life of the product, then that of fraudulent intent of the entity responsible for placing the product on the market which knowingly shortened the lifespan of its product from its conception. As a result, we can see that it is difficult for a single consumer to take legal action on this basis.


Consumer associations take action

These issues highlight the essential role of consumer protection associations, such as the UFC Que Choose or HOP (Stop Programmed Obsolescence), and control institutions such as the Directorate General for Competition, Consumption and the Repression of Fraud (DGCCRF), which is equipped with real powers of investigation and competent staff, for the revelation and denunciation of this crime.

This is how the association Halte à obsolescence programmed (HOP) submitted two complaints before the Paris court, against the two industrial giants 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, lodged 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 on the printers, also designed by the manufacturer Epson, indicated to be "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 General Directorate for Competition, Consumer Affairs and Fraud Control (DGCCRF).

In the context of these two cases, the hardest part is yet to come: the stage of taking the evidence. The use of specialized experts is essential to be able to identify 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 judges uninformed about the technical characteristics or the industrial manufacturing process of the products, things promise to be complex. However, in the months to come, whistleblowers or employees may decide to provide information to provide evidence to facilitate the investigative work of experts.

It is likely that over time, the legislator will realize the need to improve the regulations in force, given the complexity of the burden of proof of the offense. Or maybe the judges hearing the pending cases will decide to circumvent the law by considering 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 incompatible with the previous models, marks l he intention of the manufacturer to force the consumer to replace his mobile to be able to remain a customer at the Apple brand.    

Today the investigations opened by the courts of Paris and Nanterre are still ongoing, and may well lead to a conclusive result for consumers. 



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