Every year, practices of planned obsolescence – understood as encompassing techniques for deliberately reducing a product’s lifespan in order to accelerate its replacement – force consumers to replace their electrical and electronic appliances more often than necessary, with considerable consequences not only for their purchasing power, of course, but also, and above all, on the environment: increased waste, depletion of natural and economic resources, reduced biodiversity, rising CO₂ emissions…
France is the first country in the world to have made planned obsolescence a criminal offence, through Article L. 441-2 of the French Consumer Code, which states: ‘The practice of planned obsolescence is prohibited; this is defined as the use of techniques whereby the person responsible for placing a product on the market deliberately seeks to reduce its lifespan in order to increase the rate at which it is replaced’. Since 2015, therefore, the offence of planned obsolescence has been punishable by two years’ imprisonment, a fine of 300,000 euros – which may amount to up to 5 per cent of the company’s turnover – as well as disqualifications from practising.
This criminalisation of planned obsolescence has had the merit of making a lasting impression and encouraging manufacturers to adopt more sustainable, adaptable and robust manufacturing and production practices. However, the wording of this legislation leaves consumers with little practical chance of being able to invoke it, primarily due to the difficulties in proving their case.
Evidence that is difficult to provide
Traditionally, the burden of proof lies with the consumer bringing the claim. In its 2015 version, Article L441-2 made the imposition of a penalty for the offence conditional upon meeting a double burden of proof: the consumer had to prove not only the intention to reduce the product’s lifespan, but also that these techniques were used with the aim of increasing the product replacement rate. Such evidence is extremely difficult to provide. This is true of the element of intent – the intention to reduce the product’s lifespan: it must be proven that the part did not wear out in a ‘normal’ manner and that this was not a manufacturing defect but rather a deliberate practice aimed at reducing the product’s lifespan. But it is even more difficult, if not impossible, to prove the manufacturer’s deliberate intention to increase the product’s replacement rate. How can one establish with certainty that the practice does not serve another, more laudable purpose: to ensure the proper functioning of another component or simply to reduce the product’s retail price?
To date, there have been no convictions on the grounds of planned obsolescence
Owing to these evidential requirements, no convictions have been handed down since 2015 on the grounds of the offence of planned obsolescence. Of the three legal actions brought, none has resulted in a conviction under this offence. The first, brought in September 2017 by the association HOP – Stop Planned Obsolescence against Epson, HP, Canon and Brother, alleged that these companies had deliberately shortened the lifespan of not only their printers but also their ink cartridges. A similar complaint was lodged by UFC Que choisir, supported by HOP, against Nintendo, which was alleged to be selling faulty console controllers (notably Switch controllers) that wear out prematurely. Neither of these complaints has yet been heard in court.
The most high-profile complaint was lodged in December 2017 against Apple France for deliberately slowing down the iPhone 6, 6S, SE and 7 following an update to the latest operating system. Apple was ordered to pay a fine of 25 million euros, not on the grounds of planned obsolescence but for misleading commercial practices by omission, as part of a criminal settlement with the Directorate-General for Competition, Consumer Affairs and Fraud Control (DGCCRF). This unprecedented victory does not obscure the ineffectiveness of the offence of planned obsolescence as set out in the 2015 Act.
The need for a more effective definition of planned obsolescence
Legislative change was therefore necessary to strengthen the effectiveness of the ban on planned obsolescence. This was highlighted, in particular, by the fact-finding mission carried out by the Senate’s Committee on Regional Planning and Sustainable Development between December 2019 and October 2020. This has now been achieved with the Law on Reducing the Environmental Footprint of the Digital Sector in France, which was enacted on 15 November 2021.
This Law, as its title suggests, aims to address the environmental impact of the digital sector in general, and of digital devices (mobile phones, computers) in particular, as these account for 75 per cent of the sector’s environmental footprint. The preparatory work sets out three proposed amendments aimed at curbing the replacement of smartphones and computers.
A reversal of the burden of proof in cases of planned obsolescence was proposed through the addition of a sub-paragraph to Article L441-2 of the Consumer Code, aimed at placing the burden on the defendant to prove that the reduction in the product’s lifespan is not deliberate and does not stem from a strategy to increase the replacement rate. This proposal was, unsurprisingly, not adopted, as the legislature is generally not in favour of reversals of the burden of proof, particularly in criminal matters, which are governed by the principle of the presumption of innocence. Another proposal provided for a distinction between security updates and other updates in Article L217-22 of the Consumer Code. It was not adopted as stood, but the legislator amended Article L217-22 so that the seller is obliged to inform the consumer of the essential characteristics of each update.
A new definition of the offence of planned obsolescence since November 2021
With regard to the offence of planned obsolescence, the law has amended the definition of the offence as follows: ‘The practice of planned obsolescence is prohibited; this is defined as the use of techniques, including software, by which the person responsible for placing a product on the market deliberately seeks to reduce its lifespan’.
There are therefore two major changes compared with the previous definition. Firstly, software-induced obsolescence is expressly covered – “including software”. This addition is directly linked to the objective of the 2021 Law: reducing the environmental footprint of the digital sector in France.
A simplification of the offence of planned obsolescence
However, the most significant change lies in the removal of the phrase ‘in order to increase the replacement rate’ at the end of the sentence. This amendment, which is also the most significant, removes one of the conditions of proof; the legislator has removed the requirement of intent, whereby the claimant had to prove that the party responsible for placing the products on the market intended to increase their replacement rate. This amendment was introduced by the Senate, which proposed it at first reading. This removal simplifies the application of the offence of planned obsolescence, as it removes the most difficult condition to fulfil; those responsible could easily find ways to prove that ‘increasing the replacement rate’ was not their objective.
From now on, whatever the objective – whether it be to increase profits, keep up with the competition or drive down prices – by removing this provision, the legislator has made it easier to prove the existence of planned obsolescence. Nevertheless, proving that the party responsible for placing the product on the market has deliberately reduced the lifespan of its products remains a complex task for an individual consumer acting alone, who does not necessarily have the financial means to conduct an investigation and pursue lengthy and costly legal proceedings. In this regard, it appears that the use of class actions – by enabling victims who have suffered the same harm at the hands of the same party to join forces to take legal action – could be developed further. This would make it easier to gather data and testimonies.
A new definition that will not apply to ongoing cases of planned obsolescence in France
As regards the temporal application of this new definition, it complies with the principle of non-retroactivity of criminal law, according to which a law cannot be applied to acts that occurred before it came into force (unless that law is more lenient than the previous one, which is not the case here). Under these circumstances, unless the Law of 15 November 2021 is regarded as an interpretative Law of the 2015 one (an examination of this hypothesis might be worthwhile), the new definition will only apply to acts committed after its enactment. Organisations campaigning against planned obsolescence therefore have every interest in continuing their campaign on the basis of the new provisions now in force.
The HOP – Stop Planned Obsolescence organisation would like to thank Eve Truilhé (Research Director at the CNRS and Director of the Clinique de l’environnement) and Emma Le Postollec (Intern at the Clinique de l’environnement) for this analysis.
