Right to Repair Laws: Coming Soon to a State Near You

Consumer products businesses should know that “right to repair” laws are here to stay. Frustrated with restrictions on repairing consumer electronics, advocacy organizations spearheaded a grassroots “right to repair” movement that is gaining traction. Publicly endorsed by the White House and the Federal Trade Commission, the “right to repair” movement presses manufacturers to give everyone access to the same repair resources that before had only been available to manufacturers and licensed repair vendors. Thus, affected businesses need to become familiar with new regulatory obligations in a growing number of jurisdictions.

Background

New York was the trailblazer in this space, enacting the first “right to repair” law in the U.S.: the New York Digital Fair Repair Act, which was signed into law on March 3, 2023. Next year, the Minnesota Digital Fair Repair Act will go into effect, and the California Right to Repair Act will likely follow suit later in 2024. Several more bills are on the road to enactment, with at least 22 state legislatures currently considering “right to repair” bills.

Behind many of these bills is the Repair Association, a trade organization that developed the “Right to Repair & Fair Repair Legislative Template” (the Model Act). The Model Act reflects the policy objectives of the “right to repair” movement:

• Ensure that owners and unaffiliated repair vendors have access to the same resources available to the manufacturer or licensed repair vendors;
• Allow owners to service their products at the repair vendor of their choice;
• Legalize the unlocking, adapting, and modifying of any part (including software); and
• Require implementation of “design for repair” principles in product design practices.

Generally, “right to repair” laws require manufacturers to make repair parts, tools, and documentation publicly available if they are also available to the manufacturers and licensed repair vendors. Manufacturers must make these resources available on “fair and reasonable terms” and can do so directly to consumers or through affiliated repair vendors. However, each jurisdiction’s law has its own features and scope. This article compares and contrasts some of each law’s main features and presents key takeaways for affected businesses.

Key Terms

Original Equipment Manufacturers (OEMs): Most often, OEMs are businesses that engage in selling or leasing digital electronic equipment that they manufacture or that is manufactured on their behalf. These are covered entities and individuals.

Digital Electronic Equipment (DEE): This refers to covered products, largely targeting personal electronics like cell phones, tablets, and computers. Many consumer products that rely on “embedded digital electronics” may also qualify. Each jurisdiction uniquely exempts or includes certain equipment, although some products like video game consoles are routinely exempted.

Authorized Repair Providers (ARPs): These are repair vendors that previously had exclusive access to repair resources. An ARP can be the OEM itself or a repair vendor that is directly affiliated with or licensed by the OEM.

Independent Repair Providers (IRPs): This term is used broadly and refers to anyone making repairs that is not considered an ARP. Essentially, an individual or business that conducts repairs on DEE and is not affiliated with or licensed by the OEM.

Comparison Chart

Key Takeaways

“Right to repair” laws will soon go into effect, expanding quickly into more U.S. jurisdictions. While they share many similarities, these laws can vary significantly in scope. Currently the Model Act is the broadest and offers the fewest exceptions for manufacturers, presenting significant implications for a business’s intellectual property portfolio, trade secrets, and product security features.

Businesses should verify whether their products are considered DEE and fall under the scope of these laws, what compliance measures are necessary, and if those compliance measures satisfy requirements in all applicable jurisdictions. The most challenging determination is likely whether individual products are considered covered DEE in each jurisdiction. The statutory definitions are vague, with no available precedent to help determine whether products not explicitly addressed qualify.

Overall, taking a proactive approach will help businesses reduce the risk of encountering unexpected “right to repair” enforcement actions. There is still time to develop effective and cost-efficient compliance strategies before these laws go into effect. Morrison Foerster’s products liability team is ready to assist in these efforts and will provide updates as future legislation and enforcement actions develop.

Julie Harrison, a summer associate in Morrison Foerster’s San Diego office, contributed to this alert.

[1] The CA Act is silent on this topic. However, the CA Assembly on Privacy and Consumer Protection’s 06/23/23 Analysis stated that “the bill’s definition of ‘part’ includes an ‘assembly of parts.’ [So] if it would be hazardous for a product owner or repairperson to handle a specific component, the manufacturer can provide the component as part of a safer-to-handle assembly.” Jesse Gabriel, SB-244 Bill Analysis, CA Assembly Committee on Privacy and Consumer Protection (June 21, 2023).

[2] No, “except as necessary to provide documentation, parts, and tools on fair and reasonable terms.” Minn. Chap. Law 57 Sec. 11 Subd. 5(a) (2023).

[3] No, “except as necessary to comply with this section.” S.B 244, Leg. 42488.2 (c), 2023-2024 Reg. Sess. (Cal. 2023).

[4] No, “except as necessary to provide documentation, parts, and tools on fair and reasonable terms.” Minn. Chap. Law 57 Sec. 11 Subd. 5(a) (2023).

[5] No, “except as necessary to comply with this section.” S.B 244, Leg. 42488.2 (c), 2023-2024 Reg. Sess. (Cal. 2023).