Epidemic and Consumers’ Right to Repair

 

E-waste (10,000 tons)

E-waste per capita (kg)

Asia

2490

5.6

America

1310

13.3

Europe

1200

16.2

Africa

290

2.5

Oceania

70

16.1

On October 3rd, 2021, Hong Kong TVB broadcasted a piece of news stating that Hong Kong currently does not have a product repair right law (the PRRL). The European Union (the EU) is more advanced than Hong Kong in this matter. It passed the bill in November 2020 which took effect on March 6th, 2021. The PRRL gives consumers the right to have parts to repair their products by themselves.

Simply put, the right to repair (the RTR) means that consumers can obtain repair parts, tools, and information from the manufacturer, to eliminate obstacles to repair and achieve the purpose of repairing products by themselves. Without this right, consumers can only throw away the defective products and buy new ones. The RTR makes products more durable and reduces the demand for new products. The maintenance information and product parts can also be used by the maintenance companies and staff other than manufacturers to repair defective products, and hence manufacturers will not be able to monopolize and profit from the product maintenance market.

There has always been a saying of “premeditated elimination” in foreign countries. Since the manufacturer has the right to decide whether to continue to produce the parts, he naturally determines the life cycle of the product and the period for consumers to use the product. As the manufacturer naturally has a more accurate timetable to research and produce new products, the profit of the manufacturer is further guaranteed. All of which stems from the fact that consumers do not have the RTR.

In 2019, the coronavirus reduced people’s direct contact, promoted work from home, and further expanded the online world. What was unexpected is that it also activated consumers’ RTR. A typical example is the right to repair respirators. Some respirator manufacturers stipulate that when the respirator fails, only the original factory can send a technician to repair it. It is forbidden for the hospital to obtain parts and tools to repair it by themselves, and it is also forbidden to manufacture repair parts. After the outbreak, the manufacturer cut maintenance staff. If the respirator was damaged, the hospital could not directly repair it, which would hinder the treatment of patients who urgently needed respirators.In 2020, U.S. Democratic Senator Ron Wyden and Representative Yvette Diane Clark proposed the “Critical Medical Infrastructure Right-to-Repair Act of 2020”, thus would allow hospitals to legally perform third-party repairs, obtain parts, unlock software restrictions, and require the original factory to provide repair information and tools during an epidemic. This is the first time that the United States has seen the RTR bill in the federal government.

Why does the EU have the RTR? The United Nations’ report “Global E-waste Monitor 2020” pointed out that the total amount of electronic waste (e-waste) generated worldwide in 2019 was 53.6 million tons, and the recycling and reuse rate was only 17.4%, where most of the remaining amount was used as landfill. The report further predicts that e-waste will increase by 21% within the next five years; it is expected to reach 74 million tons in 2030. The figure below reveals that the EU ranks first in e-waste per capita, and that the situation must be improved.

When Hong Kong amended the Sale of Goods Ordinance, Cap. 26, Laws of Hong Kong (SOGO) in the 1990s, the RTR was considered. The consultation papers at that time pointed out that in the sale of goods (SOG) transaction, the buyer can refuse to accept defective goods. Since the right of rejection of defective goods is absolute, there was no need to consider the RTR.

After more than 20 years without the RTR, when facing the increasing amount of e-waste, Hong Kong passed the “Promotion of Recycling and Proper Disposal (Electrical Equipment and Electronic Equipment) (Amendment) Ordinance 2016” in March 2016 followed by the subsidiary legislation Chapter 603B “Product Eco-responsibility (Regulated Electrical Equipment) Regulation” in July 2017. From August 1st, 2018, the suppliers of air-conditioners, refrigerators, washing machines, televisions, computers, printers, scanners, and monitors must register with the Environmental Protection Department (the EPD), pay a recycling levy, and affix recycling labels to these electrical appliances before they can distribute them. The seller must have a removal service plan endorsed by the EPD before they can sell electrical appliances. If consumers wish to dispose of similar electrical appliances, sellers must take away the used electrical appliances free of charge at the request of consumers and provide consumers with receipts containing the prescribed words for recycling levy. After the EPD collects e-waste, it will be decomposed and repaired. The repaired electronic products will be later sent to families in need. This approach can reduce Hong Kong’s e-waste, but it does not provide consumers with the RTR.

In the issue of the Choice Magazine published by the Hong Kong Consumer Council of August 2020, there is a case in which Mr. Li bought a massage chair in 2017. In early 2020, he found out that the back roller could not move up and down. After inspection, it was found that the motherboard was faulty, and the massage chair could not be repaired because the production of the motherboard had been discontinued. Since the massage chair has already been used for more than two years and no parts were available, he had to discard the massage chair. Mr. Li also pointed out that if the parts had already been discontinued, there should have been no need to spend money for the inspection. He asked for a preferential replacement of the massage chair or a refund of the inspection fee, but all his wishes were rejected. This example shows that without the RTR, consumers have no choice but to abandon the product and pay the inspection fee, wasting time and money.

Statistics from the Environmental Protection Department (EPD), show that in 2019 there were 47,400 tons of e-waste in Hong Kong, accounting for 0.09% of the entire world’s total e-waste. However, we do not know how many cases in this total number are similar to Mr. Li’s massage chair case. What is certain is that if we want to protect consumers and reduce the total amount of e-waste, it is necessary to have the RTR. In order to achieve this goal, publicity and education are indispensable. Once Hong Kong residents realize the extreme importance of the RTR, the government can start taking the first step in legislation - public consultation.

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Legislation can provide consumer protection, but it takes time. It is impossible to create a law today and have it applied by tomorrow. A quicker and safer way is to consider changing the codes of practice on “Guide to Consumer Rights and Responsibilities” and “Good Corporate Citizen’s Guide - Rules”, issued by the Hong Kong Consumer Council. The purpose is to provide companies and consumers with clearer guidance, so that they know how sustainable companies operate their business, what rights consumers should have, and so on. After revising the codes, companies and consumers can further understand what companies need to give to consumers, and consumers can also know which kind of protection the RTR brings to them.

Compared with legislation, the procedure of amending the codes is simpler and faster, making it much easier to do. However, codes and laws cannot be compared, because only laws are mandatory so that everyone must abide by them. The codes are mere recommendations, and their adoption is voluntary. The consequences of not complying with the codes are not equivalent to violating the law, and for that reason, it is unlikely to have serious consequences.

Although the RTR brings benefits to consumers, there are still areas that need attention. In January 2021, before the EU implemented the PRRL, France introduced an Anti-waste Law. Electronic products must have a repairing index label to list the repairability of the product. The index is made based on different indicators, such as whether it is easy to disassemble, the price of parts, etc. This index ranges from 0 to 10, where the lower the index, the lower the repairability of the product. From the legislative perspective, the PRRL must have the relevant provisions, like the French Anti-waste Law, with such critical information as the ease of assembly of the product and the price of the parts, etc. helping consumers to judge whether the defective product is worth repairing. Second, from the consumer’s point of view, if the price of the parts is high, where sometimes the cost of buying a new product is approximately the same as the cost of repairing the defective product, consumers are likely to give up repairing the defective product and directly purchase a new one. The law cannot regulate the price of parts. This matter can only be determined by the manufacturer. In the case of excessively high prices of parts, it is equivalent to no RTR. Third, from a practical point of view, with the PRRL, consumers can exercise the RTR, but this does not mean that consumers have the necessary maintenance skills and can properly maintain their products. If the product is improperly repaired, this has nothing to do with the manufacturer, and the manufacturer should not be liable for the consequences. An example is when repairing a mobile phone, if the screw or casing is not correctly replaced, the battery may be damaged, causing it to overheat, which may harm the consumer. In these cases, the manufacturer should not be liable for such problems caused by improper repair.

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In the absence of a law which protects consumers’ right to repair, what can solicitors do to protect the best interest of their clients? If clients can directly purchase electronic products from manufacturers, they can make a SOG contract, which is subject to the SOGO. Section 4 stipulates that a buyer must be a consumer, otherwise, the SOGO is not applicable. Therefore, after confirming the identity of the consumer, the solicitor can add terms to the SOG contract to ensure that the client has the right to repair goods or enjoy the repair service. During the validity period of the SOG contract, the manufacturer must provide the client with the right to repair and maintenance services of electronic products, and it cannot avoid performing the SOG contract on the grounds that there are no parts for relevant products. If the parts of the product will likely be supplied to other buyers, the solicitor can add a pre-emption clause for the priority purchase of the parts of the product to the SOG contract to protect the best interests of their client.

Of course, it is not difficult to draft these terms. The problem lies in the manufacturer’s failure to provide parts, which renders it impossible to repair the product. What is the most appropriate compensation? My learned friends are familiar with the rules of monetary compensation in case of breach of contract, so it is not necessary to elaborate on the relevant rules here. But what could be done if the monetary compensation fails to solve the client’s problem? My learned friends can consider product substitution. Even if a defective product has no parts, and therefore cannot be repaired, the client can always ask the manufacturer to recycle the defective product and compensate him with another product as a substitute in order to have the same benefit. If the client has a high bargaining power when signing the SOG contract, the client can also require the manufacturer to recycle the product after a period of use, and the manufacturer should use a cheaper price to sell the new product to the client. The “old-for-new” term not only avoids the problem of no spare parts available but also eliminates the need for the clients to repair the products.

In reality, a solicitor can draft a SOG contract for the client, add the RTR contractual clause, and add the old-for-new term thereby ensuring that the client has the available products as well as the RTR for the product. However, this method is only suitable for large-value transactions or special transactions. Generally, in retail, most of the sales in the market constitute a SOG contract by conduct. In the absence of a written SOG contract, the protection of customers is very limited.

This article maintains that in the absence of the RTR, relevant terms can be added to the SOG contract by solicitors to protect the rights and interests of clients. However, this can only be used in special circumstances, and is not a universal guarantee. Only by legislation can consumers be given comprehensive protection. It is not known when the epidemic will end, but this epidemic has certainly changed our lives, and the law must also keep pace with these changes. Only when we fully cooperate with each other can we have a better living environment. 

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Jurisdictions

Associate Professor, Macao Polytechnic Institute

David received his legal education in China, Hong Kong and Macao. He is currently engaged in legal training and research. He is also a columnist for Portuguese newspapers, commenting on current affairs and laws. David loves music and is currently the legal consultant of the Macau Jazz Music Association.