The Law and Policy of Product Obsolescence

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Policymakers should address the constant turnover of products which leads to mass consumerism.

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In 1932, Bernard London famously wrote a pamphlet titled Ending the Depression Through Planned Obsolescence. Aiming to boost the struggling American economy, London advocated regulating products’ lifetime so that goods would have to fail after a certain time. New products, London explained, “would constantly be pouring forth from the factories and marketplaces, to take the place of the obsolete.” His proposed regime would ensure high levels of consumer spending, which would stimulate the economy.

The idea that firms can benefit from short-lived products does not belong to the past. The modern-day term “planned obsolescence” occurs when firms deliberately design functional products to fail artificially. Consumer law and environmental law can combat this practice and work in tandem to advance a more sustainable consumption culture.

Firms have strong incentives to engage in premature product obsolescence. A well-known historic illustration is the Phoebus lightbulb cartel, which formed in the 1920s. Until then, lightbulb manufacturers designed their products to last as long as possible, manufacturing lightbulbs that could burn for 1,500 to 2,500 hours. The Phoebus cartel, however, decided to limit the lightbulbs’ lifespan to no more than 1,000 hours.

Modern firms employ similar strategies that make their products prematurely obsolete. Consider, for instance, smartphones that malfunction after manufacturers update the operating systems; printers that fail after a limited number of printed pages or at a specific time; and washing machines, dishwashers, and dryers that last for only a few years.

Product obsolescence is further exacerbated by marketing techniques that exploit consumer psychology and vulnerabilities. Marketers instill in consumers the urge to buy more and have the latest version or model of products. As one illustration, many consumers regard garments as “out of style” after just one season. The textile industry is not concerned about long-lasting cloth fabrics as the lure of fast fashion ensures that enough consumers will keep buying clothes.

Today, European Union policymakers generally agree that London’s logic—mandating expiry dates to otherwise functional products—was fundamentally flawed. Product obsolescence fuels consumeristic culture. It leads to excessive spending and waste, while harming consumers, competitors, and the environment. In essence, product obsolescence is a problem—not a solution.

The call for a radical shift toward sustainable consumption that includes product durability and reparability is growing louder. Buddhist monk, Shoukei Matsumoto, said that “if you use an object for as long as you can, carefully repairing it when necessary, you will find that not only your relationships with objects begin to change, but so will the way you relate to people.”

Yet, as Pope Francis noted, “people may well have a growing ecological sensitivity, but it has not succeeded in changing their harmful habits of consumption.”

Law and policy can help in the effort to turn the consumption tide. But the American legal landscape generally does not address product obsolescence. Even in Europe, with its strong focus on consumer protection, green transition, and environmental protection, laws that addresses product obsolescence are underdeveloped and partial in scope.

In a recent article, we discuss the need for a systematic and holistic regulatory framework that better tackles the problem of product obsolescence.

We call for an explicit ban against planned obsolescence. We also propose improving pre-contractual information about product durability. For that purpose, a unified and mandatory durability and reparability labeling system may prove beneficial. These labels should inform and empower consumers.

Mandatory labeling and pre-contractual disclosures, even if smartly designed, are not a panacea. So we suggest that regulators broaden ecodesign regulation—which mainly addresses energy efficiency—to incorporate durability, reparability, and upgradability standards.

Furthermore, following the Dutch model, we recommend that consumer organizations and industry players negotiate the “normal” lifetime of a product. The negotiation, combined with objective data about products’ lifespan, would result in minimum standards of durability. These standards could then be incorporated into regulatory schemes that would be revisited periodically. In particular, they could serve as benchmarks for the duration of mandatory product guarantees.

To mitigate the environmental waste that results from product obsolescence, policymakers could encourage, or even mandate, the expansion of take-back schemes. Under such schemes, sellers take back used goods that consumers wish to discard. Take-back schemes, combined with extended producer responsibility, can help ensure that manufacturers internalize some of the costs that product obsolescence inflict on the environment.

Keeping goods for longer and generating less waste is more than a matter of prolonging functionality and reducing objective costs. It is also a matter of shaping consumer preferences. The raison d’être of marketing is to reinforce psychological drivers of consumption, such as status-seeking, identity-seeking, and retail therapy. These drivers are not easy to counter. That said, policymakers can consider using tools in this context too such as tax incentives. Industry codes, interactive community upcycling workshops, and awareness campaigns may all contribute to shifting the dial.

Social trends have recently begun to shift consumers’ attitudes and behaviors toward a humbler consumer culture. Additional pressure by consumer watchdogs and pro-consumer organizations, coupled with a deliberate public policy discourse, could amplify this effect. We call on legislatures and policymakers to join this movement and take practical steps to encourage a more frugal way of life.

Samuel Becher

Samuel Becher is a professor of law at Victoria University of Wellington.

Anne-Lise Sibony

Anne-Lise Sibony is a professor of law at the Université catholique de Louvain in Belgium.

This essay is based on a forthcoming article by the authors in the Columbia Journal of European Law.