Existing law, the Song-Beverly Consumer Warranty Act, provides a comprehensive set of procedures for the enforcement of express and implied warranties on consumer goods, as defined. Under existing law, every manufacturer making an express warranty with respect to an electronic or appliance product, including televisions, radios, audio or video recording equipment, major home appliances, antennas, and rotators, with a wholesale price to the retailer of not less than $50 nor more than $99.99 is required to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 3 years after the date a product model or type was manufactured, regardless of whether the 3-year period exceeds the warranty period for the product. Existing law also requires every manufacturer making an express warranty with respect to an electronic or appliance product, as described above, with a wholesale price to the retailer of $100 or more, to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 7 years after the date a product model or type was manufactured, regardless of whether the 7-year period exceeds the warranty period for the product.

This bill would enact the Right to Repair Act. The bill would require, except as specified and regardless of whether any express warranty is made, the manufacturer of an above-described electronic or appliance product, in the above-described circumstances, and in those same circumstances but sold to others outside of direct retail sales, to make available, on fair and reasonable terms, to product owners, service and repair facilities, and service dealers, the means, as described, to effect the diagnosis, maintenance, or repair of the product, as provided. The bill would also require a service and repair facility or service dealer that is not an authorized repair provider, as defined, of a manufacturer to provide a written notice of that fact to any customer seeking repair of an electronic or appliance product before the repair facility or service dealer repairs the product, and to disclose if it uses replacement parts that are used or from a supplier that is not the manufacturer. The bill would also authorize a city, a county, a city and county, or the state to bring an action in superior court to impose civil penalties on a person or entity for violating the Right to Repair Act, as provided. The bill would make these requirements and enforcement provisions operative on July 1, 2024.

Existing law, the Song-Beverly Consumer Warranty Act, provides a comprehensive set of procedures for the enforcement of express and implied warranties on consumer goods, as defined. Under existing law, every manufacturer making an express warranty with respect to an electronic or appliance product, including televisions, radios, audio or video recording equipment, major home appliances, antennas, and rotators, with a wholesale price to the retailer of not less than $50 nor more than $99.99 is required to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 3 years after the date a product model or type was manufactured, regardless of whether the 3-year period exceeds the warranty period for the product. Existing law also requires every manufacturer making an express warranty with respect to an electronic or appliance product, as described above, with a wholesale price to the retailer of $100 or more, to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 7 years after the date a product model or type was manufactured, regardless of whether the 7-year period exceeds the warranty period for the product.

This bill would enact the Right to Repair Act. The bill would require, except as specified and regardless of whether any express warranty is made, the manufacturer of an above-described electronic or appliance product, in the above-described circumstances, and in those same circumstances but sold to others outside of direct retail sales, to make available, on fair and reasonable terms, to product owners, service and repair facilities, and service dealers, the means, as described, to effect the diagnosis, maintenance, or repair of the product, as provided. The bill would also require a service and repair facility or service dealer that is not an authorized repair provider, as defined, of a manufacturer to provide a written notice of that fact to any customer seeking repair of an electronic or appliance product before the repair facility or service dealer repairs the product, and to disclose if it uses replacement parts that are used or from a supplier that is not the manufacturer. The bill would also authorize a city, a county, a city and county, or the state to bring an action in superior court to impose civil penalties on a person or entity for violating the Right to Repair Act, as provided. The bill would make these requirements and enforcement provisions operative on July 1, 2024.

Existing law, the Song-Beverly Consumer Warranty Act, provides a comprehensive set of procedures for the enforcement of express and implied warranties on consumer goods, as defined. Under existing law, every manufacturer making an express warranty with respect to an electronic or appliance product, including televisions, radios, audio or video recording equipment, major home appliances, antennas, and rotators, with a wholesale price to the retailer of not less than $50 nor more than $99.99 is required to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 3 years after the date a product model or type was manufactured, regardless of whether the 3-year period exceeds the warranty period for the product. Existing law also requires every manufacturer making an express warranty with respect to an electronic or appliance product, as described above, with a wholesale price to the retailer of $100 or more, to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 7 years after the date a product model or type was manufactured, regardless of whether the 7-year period exceeds the warranty period for the product.

This bill would enact the Right to Repair Act. The bill would require, except as specified and regardless of whether any express warranty is made, the manufacturer of an above-described electronic or appliance product, in the above-described circumstances, and in those same circumstances but sold to others outside of direct retail sales, to make available, on fair and reasonable terms, to product owners, service and repair facilities, and service dealers, the means, as described, to effect the diagnosis, maintenance, or repair of the product, as provided. The bill would also require a service and repair facility or service dealer that is not an authorized repair provider, as defined, of a manufacturer to provide a written notice of that fact to any customer seeking repair of an electronic or appliance product before the repair facility or service dealer repairs the product, and to disclose if it uses replacement parts that are used or from a supplier that is not the manufacturer. The bill would also authorize a city, a county, a city and county, or the state to bring an action in superior court to impose civil penalties on a person or entity for violating the Right to Repair Act, as provided. The bill would make these requirements and enforcement provisions operative on July 1, 2024.

Existing law, the Song-Beverly Consumer Warranty Act, provides a comprehensive set of procedures for the enforcement of express and implied warranties on consumer goods, as defined. Under existing law, every manufacturer making an express warranty with respect to an electronic or appliance product, including televisions, radios, audio or video recording equipment, major home appliances, antennas, and rotators, with a wholesale price to the retailer of not less than $50 nor more than $99.99 is required to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 3 years after the date a product model or type was manufactured, regardless of whether the 3-year period exceeds the warranty period for the product. Existing law also requires every manufacturer making an express warranty with respect to an electronic or appliance product, as described above, with a wholesale price to the retailer of $100 or more, to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 7 years after the date a product model or type was manufactured, regardless of whether the 7-year period exceeds the warranty period for the product.

This bill would enact the Right to Repair Act. The bill would require, except as specified and regardless of whether any express warranty is made, the manufacturer of an above-described electronic or appliance product, in the above-described circumstances, and in those same circumstances but sold to others outside of direct retail sales, to make available, on fair and reasonable terms, to product owners, service and repair facilities, and service dealers, the means, as described, to effect the diagnosis, maintenance, or repair of the product, as provided. The bill would also require a service and repair facility or service dealer that is not an authorized repair provider, as defined, of a manufacturer to provide a written notice of that fact to any customer seeking repair of an electronic or appliance product before the repair facility or service dealer repairs the product, and to disclose if it uses replacement parts that are used or from a supplier that is not the manufacturer. The bill would also authorize a city, a county, a city and county, or the state to bring an action in superior court to impose civil penalties on a person or entity for violating the Right to Repair Act, as provided.

Existing law, the Song-Beverly Consumer Warranty Act, provides a comprehensive set of procedures for the enforcement of express and implied warranties on consumer goods, as defined. Under existing law, every manufacturer making an express warranty with respect to an electronic or appliance product, including televisions, radios, audio or video recording equipment, major home appliances, antennas, and rotators, with a wholesale price to the retailer of not less than $50 nor more than $99.99 is required to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 3 years after the date a product model or type was manufactured, regardless of whether the 3-year period exceeds the warranty period for the product. Existing law also requires every manufacturer making an express warranty with respect to an electronic or appliance product, as described above, with a wholesale price to the retailer of $100 or more, to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 7 years after the date a product model or type was manufactured, regardless of whether the 7-year period exceeds the warranty period for the product.

This bill would enact the Right to Repair Act. The bill would require, except as specified and regardless of whether any express warranty is made, the manufacturer of an above-described electronic or appliance product, in the above-described circumstances, and in those same circumstances but sold to others outside of direct retail sales, to make available, on fair and reasonable terms, to product owners, service and repair facilities, and service dealers, the means, as described, to effect the diagnosis, maintenance, or repair of the product, as provided. The bill would also require a service and repair facility or service dealer that is not an authorized repair provider, as defined, of a manufacturer to provide a written notice of that fact to any customer seeking repair of an electronic or appliance product before the repair facility or service dealer repairs the product, and to disclose if it uses replacement parts that are used or from a supplier that is not the manufacturer. The bill would also authorize a city, a county, a city and county, or the state to bring an action in superior court to impose civil penalties on a person or entity for violating the Right to Repair Act, as provided.

Existing law, the Song-Beverly Consumer Warranty Act, provides a comprehensive set of procedures for the enforcement of express and implied warranties on consumer goods, as defined. Under existing law, every manufacturer making an express warranty with respect to an electronic or appliance product, including televisions, radios, audio or video recording equipment, major home appliances, antennas, and rotators, with a wholesale price to the retailer of not less than $50 nor more than $99.99 is required to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 3 years after the date a product model or type was manufactured, regardless of whether the 3-year period exceeds the warranty period for the product. Existing law also requires every manufacturer making an express warranty with respect to an electronic or appliance product, as described above, with a wholesale price to the retailer of $100 or more, to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 7 years after the date a product model or type was manufactured, regardless of whether the 7-year period exceeds the warranty period for the product.

This bill would enact the Right to Repair Act. The bill would require, except as specified and regardless of whether any express warranty is made, the manufacturer of an above-described electronic or appliance product, in the above-described circumstances, and in those same circumstances but sold to others outside of direct retail sales, to make available, on fair and reasonable terms, to product owners, service and repair facilities, and service dealers, the means, as described, to effect the diagnosis, maintenance, or repair of the product, as provided. The bill would also require a service and repair facility or service dealer that is not an authorized repair provider, as defined, of a manufacturer to provide a written notice of that fact to any customer seeking repair of an electronic or appliance product before the repair facility or service dealer repairs the product, and to disclose if it uses replacement parts that are used or from a supplier that is not the manufacturer. The bill would also authorize a city, a county, a city and county, or the state to bring an action in superior court to impose civil penalties on a person or entity for violating the Right to Repair Act, as provided.

Existing law, the Song-Beverly Consumer Warranty Act, provides a comprehensive set of procedures for the enforcement of express and implied warranties on consumer goods, as defined. Under existing law, every manufacturer making an express warranty with respect to an electronic or appliance product, including televisions, radios, audio or video recording equipment, major home appliances, antennas, and rotators, with a wholesale price to the retailer of not less than $50 nor more than $99.99 is required to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 3 years after the date a product model or type was manufactured, regardless of whether the 3-year period exceeds the warranty period for the product. Existing law also requires every manufacturer making an express warranty with respect to an electronic or appliance product, as described above, with a wholesale price to the retailer of $100 or more, to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 7 years after the date a product model or type was manufactured, regardless of whether the 7-year period exceeds the warranty period for the product.

This bill would enact the Right to Repair Act. The bill would require, except as specified and regardless of whether any express warranty is made, the manufacturer of an above-described electronic or appliance product, in the above-described circumstances, and in those same circumstances but sold to others outside of direct retail sales, to make available, on fair and reasonable terms, to product owners, service and repair facilities, and service dealers, the means, as described, to effect the diagnosis, maintenance, or repair of the product, as provided. The bill would also require a service and repair facility or service dealer that is not an authorized facility or dealer repair provider, as defined, of a manufacturer to provide a written notice of that fact to any customer seeking repair of an electronic or appliance product before the repair facility or service dealer repairs the product, and to disclose if it uses replacement parts that are used or from a supplier that is not the manufacturer. The bill would also authorize a city, a county, a city and county, or the state to bring an action in superior court to impose civil penalties on a person or entity for violating the Right to Repair Act, as provided.

Existing law, the Song-Beverly Consumer Warranty Act, provides a comprehensive set of procedures for the enforcement of express and implied warranties on consumer goods, as defined. Under existing law, every manufacturer making an express warranty with respect to an electronic or appliance product, including televisions, radios, audio or video recording equipment, major home appliances, antennas, and rotators, with a wholesale price to the retailer of not less than $50 nor more than $99.99 is required to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 3 years after the date a product model or type was manufactured, regardless of whether the 3-year period exceeds the warranty period for the product. Existing law also requires every manufacturer making an express warranty with respect to an electronic or appliance product, as described above, with a wholesale price to the retailer of $100 or more, to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 7 years after the date a product model or type was manufactured, regardless of whether the 7-year period exceeds the warranty period for the product.

This bill would enact the Right to Repair Act. The bill would require, except as specified and regardless of whether any express warranty is made, the manufacturer of an above-described electronic or appliance product, in the above-described circumstances, and in those same circumstances but sold to others outside of direct retail sales, to make available, on fair and reasonable terms, to product owners, service and repair facilities, and service dealers, the means, as described, to effect the diagnosis, maintenance, or repair of the product, as provided. The bill would also require a service and repair facility or service dealer that is not an authorized facility or dealer of a manufacturer to provide a written notice of that fact to any customer seeking repair of an electronic or appliance product before the repair facility or service dealer repairs the product. product, and to disclose if it uses replacement parts that are used or from a supplier that is not the manufacturer. The bill would also authorize a city, a county, a city and county, or the state to bring an action in superior court to impose civil penalties on a person or entity for violating the Right to Repair Act, as provided.

Existing law, the Song-Beverly Consumer Warranty Act, provides a comprehensive set of procedures for the enforcement of express and implied warranties on consumer goods, as defined. Under existing law, every manufacturer making an express warranty with respect to an electronic or appliance product, including televisions, radios, audio or video recording equipment, major home appliances, antennas, and rotators, with a wholesale price to the retailer of not less than $50 nor more than $99.99 is required to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 3 years after the date a product model or type was manufactured, regardless of whether the 3-year period exceeds the warranty period for the product. Existing law also requires every manufacturer making an express warranty with respect to an electronic or appliance product, as described above, with a wholesale price to the retailer of $100 or more, to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 7 years after the date a product model or type was manufactured, regardless of whether the 7-year period exceeds the warranty period for the product.

This bill would enact the Right to Repair Act. The bill would require, except as specified and regardless of whether any express warranty is made, the manufacturer of an above-described electronic or appliance product, in the above-described circumstances, and in those same circumstances but sold to others outside of direct retail sales, to make available, on fair and reasonable terms, to product owners, service and repair facilities, and service dealers, the means, as described, to effect the diagnosis, maintenance, or repair of the product, as provided. The bill would also require a service and repair facility or service dealer that is not an authorized facility or dealer of a manufacturer to provide a written notice of that fact to any customer seeking repair of an electronic or appliance product before the repair facility or service dealer repairs the product. The bill would also authorize a city, a county, a city and county, or the state to bring an action in superior court to impose civil penalties on a person or entity for violating the Right to Repair Act, as provided.

Existing law, the Song-Beverly Consumer Warranty Act, provides a comprehensive set of procedures for the enforcement of express and implied warranties on consumer goods, as defined. Under existing law, every manufacturer making an express warranty with respect to an electronic or appliance product, including televisions, radios, audio or video recording equipment, major home appliances, antennas, and rotators, with a wholesale price to the retailer of not less than $50 nor more than $99.99 is required to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 3 years after the date a product model or type was manufactured, regardless of whether the 3-year period exceeds the warranty period for the product. Existing law also requires every manufacturer making an express warranty with respect to an electronic or appliance product, as described above, with a wholesale price to the retailer of $100 or more, to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 7 years after the date a product model or type was manufactured, regardless of whether the 7-year period exceeds the warranty period for the product.

This bill would enact the Right to Repair Act. The bill would require, except as specified and regardless of whether any express warranty is made, the manufacturer of an above-described electronic or appliance product, in the above-described circumstances, and in those same circumstances but sold to others outside of direct retail sales, to make available, on fair and reasonable terms, to product owners, service and repair facilities, and service dealers, the means, as described, to effect the diagnosis, maintenance, or repair of the product, as provided. The bill would also require a service and repair facility or service dealer that is not an authorized facility or dealer of a manufacturer to provide a written notice containing specified information related to warranties of that fact to any customer seeking repair of an electronic or appliance product before the repair facility or service dealer repairs the product. The bill would also authorize a city, a county, a city and county, or the state to bring an action in superior court to impose civil penalties on a person or entity for violating the Right to Repair Act, as provided.

Existing law, the Song-Beverly Consumer Warranty Act, provides a comprehensive set of procedures for the enforcement of express and implied warranties on consumer goods, as defined. Under existing law, every manufacturer making an express warranty with respect to an electronic or appliance product, including televisions, radios, audio or video recording equipment, major home appliances, antennas, and rotators, with a wholesale price to the retailer of not less than $50 nor more than $99.99 is required to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 3 years after the date a product model or type was manufactured, regardless of whether the 3-year period exceeds the warranty period for the product. Existing law also requires every manufacturer making an express warranty with respect to an electronic or appliance product, as described above, with a wholesale price to the retailer of $100 or more, to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of the product for at least 7 years after the date a product model or type was manufactured, regardless of whether the 7-year period exceeds the warranty period for the product.

This bill would enact the Right to Repair Act. The bill would require, regardless of whether any express warranty is made, the manufacturer of an above-described electronic or appliance product, in the above-described circumstances, and in those same circumstances but sold to others outside of direct retail sales, to make available, on fair and reasonable terms, to product owners, service and repair facilities, and service dealers, the means, as described, to effect the diagnosis, maintenance, or repair of the product, as provided. The bill would also require a service and repair facility or service dealer that is not an authorized facility or dealer of a manufacturer to provide a written notice containing specified information related to warranties to any customer seeking repair of an electronic or appliance product before the repair facility or service dealer repairs the product. The bill would also authorize a city, a county, a city and county, or the state to bring an action in superior court to impose civil penalties on a person or entity for violating the Right to Repair Act, as provided.

 UNFINISHED BUSINESS  

Bill No: SB 244

Author: Eggman (D), et al.

Amended: 9/7/23

Vote: 21

SENATE JUDICIARY COMMITTEE: 9-0, 4/11/23

AYES: Umberg, Allen, Ashby, Durazo, Laird, McGuire, Min, Niello, Wiener

NO VOTE RECORDED: Wilk, Stern

SENATE APPROPRIATIONS COMMITTEE: 6-1, 5/18/23

AYES: Portantino, Ashby, Bradford, Seyarto, Wahab, Wiener

NOES: Jones

SENATE FLOOR: 38-0, 5/30/23

AYES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Laird, Limón, McGuire, Menjivar, Min, Newman, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

NO VOTE RECORDED: Jones, Nguyen

ASSEMBLY FLOOR: 65-1, 9/12/23 - See last page for vote

SUBJECT: Right to Repair Act

SOURCE: Californians Against Waste

CALPIRG

iFixit

DIGEST:

This bill requires manufacturers of an electronic or appliance product, as defined, with a wholesale price to the retailer of not less than $50 to make available, on fair and reasonable terms, sufficient service documentation and prescribed functional parts and tools to owners of the product, service and repair facilities, and service dealers for specified timeframes. This bill provides that a city, a county, a city and county, or the state may bring an action in superior court to impose civil liability on a person or entity that knowingly, or reasonably should have known that it violated, these provisions as provided.

Assembly Amendments

make these provisions operative July 1, 2024; provide a three year statute of limitation for bringing an action against an alleged violation; provide that these provisions do not apply if he manufacturer provides an equivalent or better, readily available replacement electronic or appliance product at no charge to the customer; define authorized repair provider; and, provide that a manufacturer or authorized repair provider is not liable for any damage or injury caused to any electronic or appliance product, person, or property that occurs as a result of repair, diagnosis, maintenance, or modification performed by a service dealer or owner.

ANALYSIS:

Existing law:

1. Establishes the Electronic and Appliance Repair Dealer Registration Law (EAR Law) to regulate service dealers and service contracts that address the maintenance, replacement, or repair of consumer goods, and defines certain terms for purposes of EAR Law. (Bus. & Prof. Code §§ 9800 et seq., 9801, & 9810.)
2. Requires that every manufacturer making an express warranty with respect to an electronic or appliance product described under the EAR Law as an antenna, appliance or major home appliance, electric set, or rotator with a wholesale price to the retailer of not less than $100 and to make available to service and repair facilities sufficient service literature and functional parts to effect the repair of a product for at least seven years after the date a product model or type was manufactured, regardless of whether the seven-year period exceeds the warranty period for the product. (Civ. Code § 1793.03.)

Requires the same for every manufacturer of those described products with a wholesale price of $100 or more, except that they are required to make the service literature and functional parts available for at least seven years after the product model or type was manufactured, regardless of whether the seven-year period exceeds the warranty period for the product. (Id.)

This bill:

1. Requires every manufacturer of an electronic or appliance product, as defined, with a wholesale price to the retailer, or to others outside of direct retail sale, of not less than $50 and not more than $99.99 to make available to owners of the product, service repair facilities, and service dealers sufficient documentation and functional parts and tools, inclusive of any updates, on fair and reasonable terms in order to effect the diagnosis, maintenance, or repair of a product for at least three years after the last date a product model or type was manufactured, regardless of whether the three-year period exceeds the warranty period for the product.
2. Requires the same for every manufacturer of an electronic or appliance product with a wholesale price of $100 or more, except that they are required to make the service literature and functional parts and tools available for at least seven years after the product model or type was manufactured, regardless of whether the seven-year period exceeds the warranty period for the product.
3. Provides that it does not require a manufacturer to divulge a trade secret or license any intellectual property, including copyrights or patents, except as may be necessary to comply with the bill’s provisions. Provides that the bill does not require the distribution of a product’s source code.
4. Defines certain terms for these purposes and provides for certain exceptions, as specified.
5. Requires a service and repair facility or service dealer that is not an authorized repair provider of a manufacturer to provide a written notice to any customer seeking repair of an electronic or appliance product before the repair facility or service dealer repairs the product that informs the customer that it is not an authorized repair provider for the product, and if it uses any used replacement parts or replacement parts provided by a supplier other than the manufacturer of the product.
6. Provides that a city, a county, a city and county, or the state may bring an action in superior court to impose civil liability on a person or entity that knowingly violates these provisions, or reasonably should have known that it violated these provisions, in the amount of $1,000 per day for the first violation, $2,000 per day for the second violation, and $5,000 per day for the third and any subsequent violations.
7. Provides that a manufacturer or authorized repair provider is not liable for any damage or injury caused to any electronic or appliance product, person, or property that occurs as a result of repair, diagnosis, maintenance, or modification performed by a service dealer or owner.

Comments

Over the past decade, a movement has arisen that advocates for consumer rights to repair products they own or take those products to any repair professional of their choice. Right-to-repair legislation has been introduced in more than 25 states and most recently in Congress under The Fair Repair Act. In 2021, President Biden issued an executive order that allows farmers and motorists the right to repair their own vehicles without voiding warranty protections. Massachusetts passed the Motor Vehicle Owners Right to Repair Act in 2012, which requires auto manufacturers to allow independent mechanics to access diagnostic tools in cars so consumers can have their cars serviced by mechanics of their choice. In 2014, major national auto industry groups signed a memorandum of understanding that made the requirements of Massachusetts Automotive Right to Repair bill a national policy. In 2022, New York passed and the Governor signed the Digital Fair Repair Act providing consumers with the right to repair certain electronic products. Colorado passed a bill in 2022 granting powered wheelchair owners the right to repair their own wheel chairs. Additionally, the U.S. House of Representatives held a hearing regarding the right to repair before the Subcommittee on Underserved, Agricultural, and Rural Business Development of the Committee on Small Business on September 14, 2022. There are right to repair bills pending in other states as well, such as Oregon’s SB 542 and Minnesota’s SF 1598 and companion bill HF 1337.

The Federal Trade Commission (FTC) has also been investigating issues around right-to-repair and the effect manufacturer restrictions on repair has on consumers and the market. In 2021 it released a report, Nixing the Fix: An FTC Report to Congress on Repair Restrictions, and found that “[m]any consumer products have become harder to fix and maintain” because repairs tend to require “specialized tools, difficult-to-obtain parts, and access to proprietary diagnostic software.” In addition, many manufacturers restrict repairs only to authorized repair networks during the warranty period or will only make parts available to authorized repair networks. Manufacturers also, increasingly, build proprietary software keys into their products: the key is essential to fix the product, but only the manufacturer and its authorized repair networks have access to the key, effectively preventing any other party (including the owner) from conducting repairs themselves. The FTC stated, that these restrictions on repair “fall more heavily on communities of color and lower-income communities” noting that “Black and Hispanic Americans are about twice as likely as white Americans to have smartphones, but no broadband access at home” and that many “Black-owned businesses are in the repair and maintenance industries.”

This bill requires manufacturers of various electronics and appliance products to make available documentation and all functional parts and tools, inclusive of any updates, on fair and reasonable terms, to owners of the product, service and repair facilities, and service dealers in order for them to diagnose, maintain, or repair a product. The bill intends to cover consumer electronics, and therefore, its provisions apply to products defined as antenna, appliance or major home appliance, electric set, and rotator as defined under the EAR Law. This bill specifically states it does not apply to equipment or repair parts as defined under the Fair Practices of Equipment Manufacturers, Distributors, Wholesalers, and Dealers Act, to a product or component of an “alarm system” as defined under the Alarm Company Act, or to a video game console, as defined. This bill authorizes a city, a county, a city and county, or the state to bring an action in superior court to impose civil liability on a person or entity that knowingly, or reasonably should have known that it violated in the amount of $1,000 per day for the first violation, $2,000 per day for the second violation, and $5,000 per day for the third and any subsequent violations.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Assembly Appropriations Committee, costs to the Department of Justice (DOJ) in the hundreds of thousands of dollars annually to bring actions authorized by the bill. DOJ reports that its Consumer Protection Section will need an additional attorney, a legal secretary, and funding for expert consultants, for costs of $241,000 in fiscal year 2023-24 and $409,000 in fiscal year 2024-25 and ongoing. Costs of an unknown but potentially significant amount to the courts to adjudicate civil actions brought under this bill. Actual costs will depend on the number of violations, the number of cases filed, and the amount of court time needed to resolve each case. It costs approximately $1,000 to operate a courtroom for one hour. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The 2023-24 budget includes $105 million from the General Fund to backfill declining revenue to the Trial Court Trust Fund.

SUPPORT: (Verified 9/11/23)

Californians Against Waste (co-source)

CALPIRG (co-source)

iFixit (co-source)

350 Conejo/San Fernando Valley

Active San Gabriel Valley

Apple, Inc.

AscdiNatd

Aspiration

Associated Students, California State University, Northridge

Ban SUP

Breast Cancer Prevention Partners

California Democratic Party

California Environmental Voters

California Product Stewardship Council

Carbon Cycle Institute

Citizens' Climate Santa Cruz

City of Berkeley Zero Waste Commission

City of Beverly Hills

City of Laguna Beach

City of Mountain View

City of Thousand Oaks

City of San Diego

Clean Water Action

CleanEarth4Kids.org

Climate Action California

Climate Reality Project: Los Angeles Chapter

Climate Reality Project: San Fernando Valley Chapter

Consumer Action

Consumer Federation of California

Consumer Reports

Consumer Watchdog

Democrats of Rossmoor

Educate. Advocate.

Electronic Frontier Foundation

Environment California

Fillgood

Fixit Clinic

Fort Ord Environmental Justice Network

Friends Committee on Legislation of California

goTRG

Heal the Bay

Homeboy Electronics Recycling

HP

Hyde Consulting

Los Angeles County

Los Angeles Unified School District

Media Alliance

Mojave Desert and Mountain Recycling Authority

Moore Institute for Plastic Pollution Research

National Stewardship Action Council

Natural Resources Defense Council

Northern California Recycling Association

Oakland Privacy

Plastic Free Future

Plastic Oceans International

Plastic Pollution Coalition

Privacy Rights Clearinghouse

Recycle2riches

ReGen Monterey

Repair Cafe Palo Alto/Mountain View

Reuse Alliance

Salinas Valley Recycles

Santa Cruz Climate Action Network

Santa Monica Community College

Save Our Shores

SecuRepair

Service Industry Association

Seventh Generation Advisors

Sierra Club California

South Bayside Waste Management Authority (RethinkWaste)

Surfrider Foundation

Sustainable Rossmoor

Tech Care Assoication

The 5 Gyres Institute

The Center for Oceanic Awareness, Research, and Education

The Culture of Repair Project

The Last Plastic Straw

The Repair Association

The Story of Stuff Project

Tradeloop

Trident Computer Resources, Inc.

Waveform

Wishtoyo Chumash Foundation

Zero Waste USA

22 individuals

109 local elected officials

OPPOSITION: (Verified 9/11/23)

Air Conditioning Heating and Refrigeration Institute

Association of Home Appliance Manufacturers

Bradford White Corporation

California Chamber of Commerce

California Manufacturers and Technology Association

Civil Justice Association of California

Consumer Technology Association

CTIA – The Wireless Association

Information Technology Industry Council

Internet Coalition

Medical Imaging & Technology Alliance

National Electronic Manufacturers Association

NetChoice

PRBA - the Rechargeable Battery Association

Repair Done Right

State Privacy and Security Coalition, Inc.

TechNet

Telecommunications Industry Association

The Toy Association

ARGUMENTS IN SUPPORT: The sponsors of this bill, CALPIRG, Californians Against Waste, and iFixit, write:

Too often, owners of electronics and independent repair shops don’t have access to repair guides or the tools and parts that are essential to extending the life of consumer electronics. When only the manufacturer or their “authorized technician” can fix something, they can charge whatever they want or claim that it can’t be fixed, to push consumers into buying new devices, leading to more waste.

SB 244 is an important way to slow the creation of electronic waste by providing independent repair shops and consumers with the repair materials they need to keep their stuff in use and out of the trash.

ARGUMENTS IN OPPOSITION: According to a coalition of opponents comprised of various associations representing businesses and manufacturers, including, among others, Association of Home Appliance Manufacturers, California Chamber of Commerce, Civil Justice Association of California, Consumer Technology Association, Internet Coalition, and TechNet:

SB 244 mandates that OEMs treat any independent repair provider in much the same way as authorized network providers – but without any contractual protections, requirements, or restrictions. In doing so, the bill places consumers and their data at risk, undermines the business of California companies that are part of OEM-authorized networks, and stifles innovation by putting hard-earned intellectual property in the hands of hundreds, if not thousands, of new entities. Further, the bill fails to account for the wide range of repair and refurbishment options currently available to California consumers from both OEM-authorized and independent repair sources. It also does not address advancements in sustainability by electronic product manufacturers.

ASSEMBLY FLOOR: 65-1, 9/12/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Kalra, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Flora

NO VOTE RECORDED: Chen, Megan Dahle, Davies, Dixon, Essayli, Vince Fong, Gallagher, Jones-Sawyer, Lackey, McKinnor, Jim Patterson, Joe Patterson, Blanca Rubio, Sanchez

Prepared by: Amanda Mattson / JUD. / (916) 651-4113

9/12/23 19:33:25

**** END ****

SENATE THIRD READING

STR Bill Id:SB 244

Author:(Eggman)

As Amended Ver:September 7, 2023

Majority vote

SUMMARY

Requires a manufacturer of electronic or appliance products to make available to product owners and repair shops, on fair and reasonable terms, sufficient documentation and functional parts and tools, to effect the diagnosis, maintenance, or repair of the product.

Major Provisions

1. Establishes the Right to Repair Act, codifying the intent of the Legislature to provide a fair marketplace for the repair of electronic and appliance products and to prohibit intentional barriers and limitations to third-party repair.
2. Requires every manufacturer of an electronic or appliance product with a wholesale price of $50 or more to make available sufficient documentation and functional parts and tools, inclusive of any updates, on fair and reasonable terms (as defined), to effect the diagnosis, maintenance, or repair of the product. These must be made available to owners of the product, to service and repair facilities, and to service dealers.
3. Provides that if the product's price was between $50 and $99.99, the requirement under 2) extends for at least three years after the last date a product model or type was manufactured, and if the product's price was $100 or more, the requirement extends for seven years, regardless of whether the specified period exceeds the product's warranty period.
4. Exempts manufacturers from the requirements of 2) and 3) if they provide an equivalent or better, readily available replacement electronic or appliance product at no charge to the customer.
5. Provides specified protections for manufacturers, including that the bill does not require a manufacturer to divulge a trade secret or license any intellectual property, including copyrights or patents, and that it does not require the distribution of a product's source code.
6. Excludes certain products from the bill, including alarm systems and video game consoles.
7. Permits a city, a county, a city and county, or the state to bring an action in superior court to impose civil liability on a person or entity that knowingly, or reasonably should have known it, violates these provisions. Civil penalties are $1,000 per day for the first violation, $2,000 per day for the second violation, and $5,000 per day for the third and any subsequent violations. Establishes a three-year statute of limitations. The bill does not allow for a private right of action.
8. Specifies an effective date of July 1, 2024.

COMMENTS

Background. Recent years have seen the emergence of a grassroots "right to repair" movement, both in the United States and globally. As computer chips and software have become more common in ordinary household products and appliances, it has become more difficult for their owners and small repair shops to diagnose and fix problems with these devices. Even if a manufacturer repairs its own products, or establishes a network of authorized repair providers to provide repair services, there may be delays in getting the product fixed through these channels, and the repairs may be more expensive than if a competitive repair market existed. Alternately, if no means of repair is provided, product owners are left with little choice but to throw away the broken product and buy a replacement – if they are lucky enough to be able to afford one.

As consumer frustration with this state of affairs has grown, federal and state lawmakers have responded. In July 2021, President Biden signed an "Executive Order on Promoting Competition in the American Economy." Among the initiatives therein was an order directing the Federal Trade Commission (FTC) to "address persistent and recurrent practices that inhibit competition…such as unfair anticompetitive restrictions on third-party repair or self-repair of items[.]" The order can be found at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/. In December 2022, New York enacted the Digital Fair Repair Act, the first "right to repair" legislation in the country to cover consumer electronics. (N.Y. Gen. Bus. Law § 399-nn.) In May 2023, Minnesota enacted its own Digital Fair Repair Act, with even broader scope than the New York law, for it does not exclude products not sold at retail. (2023 Minn. Chap. Law 57.)

What would this bill do? This bill rests on a number of highly-technical and nuanced definitions of terms such as "fair and reasonable terms," "documentation," and "tool." But at its core, the bill works as follows:

1. It would apply to consumer electronics, such as televisions, personal computers, printers, speakers, cellphones, and tablets, and appliances, such as microwaves, refrigerators, washers, dryers, and dishwashers, that are normally used or sold for personal, family, household, or home office use.
2. A manufacturer of a covered product would have to make available sufficient documentation, parts, and tools to allow either the product's owner or an independent repair shop to diagnose issues with, maintain, and repair the product.
3. The manufacturer would have to make documentation, parts, and tools available on "fair and reasonable terms": essentially, at costs and on terms equivalent to those under which the manufacturer makes these things available to one of its authorized repair providers, or if there are no such providers, at its actual cost to produce and deliver these things.
4. Manufacturers would be exempted from #2 and #3 if they provide customers with an equivalent or better, readily available replacement at no charge.
5. If a repair shop is not a manufacturer's authorized repair provider, then it must provide customers with a written notice informing them of this fact, as well as whether the shop uses replacement parts that are used or provided by a supplier other than the manufacturer.
6. The bill may only be enforced by a city, county, or the state, with civil penalties assessed for violations.

Anticipated benefits. This bill's anticipated benefits are as follows:

1. Faster repair times and reduced costs for product owners.
2. Reduced electronic waste, by facilitating repair, rather than replacement.
3. Allowing small businesses to provide independent repair services, thereby creating competition in the repair market, leading to both lower costs and faster repair times.
4. Incentivizing of manufacturers to design products to be more easily repairable, in order to more easily meet this bill's requirements.
5. Increased safety and reliability of repaired devices, as repairs will no longer require counterfeit or "grey market" replacement parts.
6. A variety of economic benefits for people with low incomes, the FTC notes are less likely to be able to afford to replace broken devices, and people of color, who, per the FTC, are more likely to be entrepreneurs who provide independent repair services.

Does this bill impair manufacturers' intellectual property rights? A coalition of bill opponents contend that "SB 244 puts at risk the intellectual property that manufacturers have developed." This risk seems overstated. The bill includes explicit protections for manufacturers' intellectual property, and both copyright and patent law recognize exceptions for repair.

Most importantly, this bill would simply provide Californians with rights similar to those now enjoyed by New Yorkers and Minnesotans under their "right to repair" statutes. If a "right to repair" law facilitates theft or infringement of intellectual property, a criminal will simply use the laws in those states to commit those crimes; passing this bill does not make infringement any easier or more likely

According to the Author

SB 244 would make it easier and cheaper to get our consumer electronics and appliances fixed. Manufacturers currently have broad authority to restrict who can access repair information, replacement parts, and the specialized tools that they design devices and products to require. This is authority that we know they are using despite little evidence of the harms they claim to protect against, according to a report to Congress by the Federal Trade Commission. Restrictions on repair have direct costs to consumers when they have to pay exorbitant prices to have devices repaired through manufacturer-authorized networks or replace the product entirely. These restrictions also ripple out into the economy, hurting local, regulated repair shops, contributing to our growing e-waste crisis, and stifling the practicality of product owners to resell their property if they choose to do so.

Electronic devices have become an essential part of our lives, and we need access to more choices when it comes to the inevitable repairs that will be needed. Providing independent repair shops and product owners with the correct information and parts to make repairs efficiently will stimulate jobs within the communities where repairs are needed, reduce the need to replace products with simple fixes, and save money for consumers.

Arguments in Support

A coalition of twelve law professors who specialize in intellectual property law summarize this bill's merits as follows:

The right to repair our devices is crucial, not only to our autonomy as individuals, but to our collective obligations to the planet. This bill would provide the citizens of California with tools to regain control over the consumer devices they rely on every day and to stem the environmental harms of a throwaway consumer culture. As consumers as well as IP experts, we think that allowing people to repair the things they own makes common sense. It saves money by making the products we buy last longer. It eliminates waste in the form of discarded devices. And it reduces the need to extract raw materials from the earth. Device makers now assert exclusive control over the supply of replacement parts, tools, software, and diagnostic information necessary for consumers to repair devices themselves or to rely on independent repair providers. As a result, independent repair shops are being driven out of business, which only reinforces the dominance of device makers and their authorized repair partners. Faced with monopoly pricing in the repair market, consumers are often persuaded to replace their devices rather than repair them. We think the people of California would benefit from the existence of more competition and the opportunity to do repairs themselves

Arguments in Opposition

A coalition of manufacturers and trade associations contends that the supposed environmental benefits of this bill do not take recent developments into account:

The bill is partly based on an inaccurate assumption that the bill will aid in the reduction of electronic waste in the state of California. According to a recent study by Yale and Rochester Institute of Technology researchers, e-waste generation in the U.S. peaked in 2015 and is in a period of extended decline (see "Electronic Waste on the Decline, New Study Finds"). This trend is corroborated by the most recent data from the U.S. Environmental Protection Agency whose data shows consumer electronics as the fastest declining part of the municipal solid waste stream. Electronic product manufacturers have developed robust policies and programs to ensure that they are continuously improving the sustainability of their products for their whole lifecycle, from design, to material sourcing, product performance, reuse, and responsible end of life management. This has led to continued innovation and the use of new technologies which provide consumers improved devices while simultaneously reducing the overall amount of e-waste generated–-all under the existing product repair environment.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, the Department of Justice estimates annual costs in the hundreds of thousands of dollars annually to bring actions authorized by the bill. DOJ reports that its Consumer Protection Section will need an additional attorney, a legal secretary, and funding for expert consultants, for costs of $241,000 in fiscal year 2023-24 and $409,000 in fiscal year 2024-25 and ongoing. Additional costs to the trial courts will depend on the number of violations, the number of cases filed, and the amount of court time needed to resolve each case.

VOTES

SENATE FLOOR: 38-0-2

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Laird, Limón, McGuire, Menjivar, Min, Newman, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Jones, Nguyen

ASM PRIVACY AND CONSUMER PROTECTION: 7-0-4

YES: Gabriel, Bennett, Hart, Irwin, Lowenthal, Papan, Wicks

ABS, ABST OR NV: Joe Patterson, Bauer-Kahan, Essayli, Vince Fong

ASM JUDICIARY: 8-0-3

YES: Maienschein, Connolly, Haney, Kalra, Pacheco, Papan, Reyes, McKinnor

ABS, ABST OR NV: Essayli, Dixon, Sanchez

ASM APPROPRIATIONS: 12-1-3

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Weber, Wilson

NO: Dixon

ABS, ABST OR NV: Megan Dahle, Sanchez, Soria

UPDATED

VERSION: September 7, 2023

CONSULTANT: Jith Meganathan / P. & C.P. / (916) 319-2200 FN: 0001922

SENATE THIRD READING

STR Bill Id:SB 244

Author:(Eggman)

As Amended Ver:September 1, 2023

Majority vote

SUMMARY

Requires a manufacturer of electronic or appliance products to make available to product owners and repair shops, on fair and reasonable terms, sufficient documentation and functional parts and tools, to effect the diagnosis, maintenance, or repair of the product.

Major Provisions

1. Establishes the Right to Repair Act, codifying the intent of the Legislature to provide a fair marketplace for the repair of electronic and appliance products and to prohibit intentional barriers and limitations to third-party repair.
2. Requires every manufacturer of an electronic or appliance product with a wholesale price of $50 or more to make available sufficient documentation and functional parts and tools, inclusive of any updates, on fair and reasonable terms (as defined), to effect the diagnosis, maintenance, or repair of the product. These must be made available to owners of the product, to service and repair facilities, and to service dealers.
3. Provides that if the product's price was between $50 and $99.99, the requirement under 2), above, extends for at least three years after the last date a product model or type was manufactured, and if the product's price was $100 or more, the requirement extends for seven years, regardless of whether the specified period exceeds the product's warranty period.
4. Provides specified protections for manufacturers, including that the bill does not require a manufacturer to divulge a trade secret or license any intellectual property, including copyrights or patents, and that it does not require the distribution of a product's source code.
5. Excludes certain products from the bill, including alarm systems and video game consoles.
6. Permits a city, a county, a city and county, or the state to bring an action in superior court to impose civil liability on a person or entity that knowingly, or reasonably should have known it, violates these provisions. Civil penalties are $1,000 per day for the first violation, $2,000 per day for the second violation, and $5,000 per day for the third and any subsequent violations. Establishes a three-year statute of limitations. The bill does not allow for a private right of action.

COMMENTS

Background. Recent years have seen the emergence of a grassroots "right to repair" movement, both in the United States and globally. As computer chips and software have become more common in ordinary household products and appliances, it has become more difficult for their owners and small repair shops to diagnose and fix problems with these devices. Even if a manufacturer repairs its own products, or establishes a network of authorized repair providers to provide repair services, there may be delays in getting the product fixed through these channels, and the repairs may be more expensive than if a competitive repair market existed. Alternately, if no means of repair is provided, product owners are left with little choice but to throw away the broken product and buy a replacement – if they are lucky enough to be able to afford one.

As consumer frustration with this state of affairs has grown, federal and state lawmakers have responded. In July 2021, President Biden signed an "Executive Order on Promoting Competition in the American Economy." Among the initiatives therein was an order directing the Federal Trade Commission (FTC) to "address persistent and recurrent practices that inhibit competition…such as unfair anticompetitive restrictions on third-party repair or self-repair of items[.]" The order can be found at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/. In December 2022, New York enacted the Digital Fair Repair Act, the first "right to repair" legislation in the country to cover consumer electronics. (N.Y. Gen. Bus. Law § 399-nn.) In May 2023, Minnesota enacted its own Digital Fair Repair Act, a right to repair law with even broader scope than the New York law, for it does not exclude products not sold at retail. (2023 Minn. Chap. Law 57.)

What would this bill do? This bill rests on a number of highly-technical and nuanced definitions of terms such as "fair and reasonable terms," "documentation," and "tool." But at its core, the bill works as follows:

1. It would apply to consumer electronics, such as televisions, personal computers, printers, speakers, cellphones, and tablets, and appliances, such as microwaves, refrigerators, washers, dryers, and dishwashers, that are normally used or sold for personal, family, household, or home office use.
2. A manufacturer of a covered product would have to make available sufficient documentation, parts, and tools to allow either the product's owner or an independent repair shop to diagnose issues with, maintain, and repair the product.
3. The manufacturer would have to make documentation, parts, and tools available on "fair and reasonable terms": essentially, at costs and on terms equivalent to those under which the manufacturer makes these things available to one of its authorized repair providers, or if there are no such providers, at its actual cost to produce and deliver these things.
4. If a repair shop is not a manufacturer's authorized repair provider, then it must provide customers with a written notice informing them of this fact, as well as whether the shop uses replacement parts that are used or provided by a supplier other than the manufacturer.
5. The bill may only be enforced by a city, county, or the state, with civil penalties assessed for violations.

Anticipated benefits. The bill's anticipated benefits are as follows:

1. Faster repair times and reduced costs for product owners.
2. Reduced electronic waste, by facilitating repair, rather than replacement.
3. Allowing small businesses to provide independent repair services, thereby creating competition in the repair market, leading to both lower costs and faster repair times.
4. Incentivizing of manufacturers to design products to be more easily repairable, in order to more easily meet this bill's requirements.
5. Increased safety and reliability of repaired devices, as repairs will no longer require counterfeit or "grey market" replacement parts.
6. A variety of economic benefits for people with low incomes, the FTC notes are less likely to be able to afford to replace broken devices, and people of color, who, per the FTC, are more likely to be entrepreneurs who provide independent repair services.

Does this bill impair manufacturers' intellectual property rights? A coalition of bill opponents contend that "SB 244 puts at risk the intellectual property that manufacturers have developed." This risk seems overstated. This bill includes explicit protections for manufacturers' intellectual property, and both copyright and patent law recognize exceptions for repair.

Most importantly, this bill would simply provide Californians with rights similar to those now enjoyed by New Yorkers and Minnesotans under their "right to repair" statutes. If a "right to repair" law facilitates theft or infringement of intellectual property, a criminal will simply use the laws in those states to commit those crimes; passing this bill does not make infringement any easier or more likely

According to the Author

SB 244 would make it easier and cheaper to get our consumer electronics and appliances fixed. Manufacturers currently have broad authority to restrict who can access repair information, replacement parts, and the specialized tools that they design devices and products to require. This is authority that we know they are using despite little evidence of the harms they claim to protect against, according to a report to Congress by the Federal Trade Commission. Restrictions on repair have direct costs to consumers when they have to pay exorbitant prices to have devices repaired through manufacturer-authorized networks or replace the product entirely. These restrictions also ripple out into the economy, hurting local, regulated repair shops, contributing to our growing e-waste crisis, and stifling the practicality of product owners to resell their property if they choose to do so.

Electronic devices have become an essential part of our lives, and we need access to more choices when it comes to the inevitable repairs that will be needed. Providing independent repair shops and product owners with the correct information and parts to make repairs efficiently will stimulate jobs within the communities where repairs are needed, reduce the need to replace products with simple fixes, and save money for consumers.

Arguments in Support

A coalition of twelve law professors who specialize in intellectual property law summarize this bill's merits as follows:

The right to repair our devices is crucial, not only to our autonomy as individuals, but to our collective obligations to the planet. This bill would provide the citizens of California with tools to regain control over the consumer devices they rely on every day and to stem the environmental harms of a throwaway consumer culture. As consumers as well as IP experts, we think that allowing people to repair the things they own makes common sense. It saves money by making the products we buy last longer. It eliminates waste in the form of discarded devices. And it reduces the need to extract raw materials from the earth. Device makers now assert exclusive control over the supply of replacement parts, tools, software, and diagnostic information necessary for consumers to repair devices themselves or to rely on independent repair providers. As a result, independent repair shops are being driven out of business, which only reinforces the dominance of device makers and their authorized repair partners. Faced with monopoly pricing in the repair market, consumers are often persuaded to replace their devices rather than repair them. We think the people of California would benefit from the existence of more competition and the opportunity to do repairs themselves.

Arguments in Opposition

A coalition of manufacturers and trade associations contends that the supposed environmental benefits of this bill do not take recent developments into account:

The bill is partly based on an inaccurate assumption that the bill will aid in the reduction of electronic waste in the state of California. According to a recent study by Yale and Rochester Institute of Technology researchers, e-waste generation in the United States (U.S.) peaked in 2015 and is in a period of extended decline (see "Electronic Waste on the Decline, New Study Finds"). This trend is corroborated by the most recent data from the U.S. Environmental Protection Agency whose data shows consumer electronics as the fastest declining part of the municipal solid waste stream.

Electronic product manufacturers have developed robust policies and programs to ensure that they are continuously improving the sustainability of their products for their whole lifecycle, from design, to material sourcing, product performance, reuse, and responsible end of life management.

This has led to continued innovation and the use of new technologies which provide consumers improved devices while simultaneously reducing the overall amount of e-waste generated–-all under the existing product repair environment.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, the Department of Justice estimates annual costs in the hundreds of thousands of dollars annually to bring actions authorized by the bill. DOJ reports that its Consumer Protection Section will need an additional attorney, a legal secretary, and funding for expert consultants, for costs of $241,000 in fiscal year 2023-24 and $409,000 in fiscal year 2024-25 and ongoing. Additional costs to the trial courts will depend on the number of violations, the number of cases filed, and the amount of court time needed to resolve each case.

VOTES

SENATE FLOOR: 38-0-2

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Laird, Limón, McGuire, Menjivar, Min, Newman, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Jones, Nguyen

ASM PRIVACY AND CONSUMER PROTECTION: 7-0-4

YES: Gabriel, Bennett, Hart, Irwin, Lowenthal, Papan, Wicks

ABS, ABST OR NV: Joe Patterson, Bauer-Kahan, Essayli, Vince Fong

ASM JUDICIARY: 8-0-3

YES: Maienschein, Connolly, Haney, Kalra, Pacheco, Papan, Reyes, McKinnor

ABS, ABST OR NV: Essayli, Dixon, Sanchez

ASM APPROPRIATIONS: 12-1-3

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Weber, Wilson

NO: Dixon

ABS, ABST OR NV: Megan Dahle, Sanchez, Soria

UPDATED

VERSION: September 1, 2023

CONSULTANT: Jith Meganathan / P. & C.P. / (916) 319-2200 FN: 0001535

Date of Hearing: August 16, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

SBPCA Bill Id:SB 244

Author:(Eggman) – As Amended Ver:June 29, 2023

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill creates a right to repair for certain consumer appliances and electronic products, allowing owners and independent repair providers to obtain from a qualifying product’s manufacturer, on fair and reasonable terms, the documentation, parts, software, and tools needed to repair the product.

The bill authorizes a city, a county, a city and county, or the state to bring an action in superior court to impose civil penalties on a person or entity that knew or reasonably should have known they violated this bill’s provisions.

FISCAL EFFECT:

1. Costs (Public Rights Law Enforcement Special Fund) to the Department of Justice (DOJ) in the hundreds of thousands of dollars annually to bring actions authorized by the bill. DOJ reports that its Consumer Protection Section will need an additional attorney, a legal secretary, and funding for expert consultants, for costs of $241,000 in fiscal year 2023-24 and $409,000 in fiscal year 2024-25 and ongoing.
2. Costs (Trial Court Trust Fund, General Fund) of an unknown but potentially significant amount to the courts to adjudicate civil actions brought under this bill. This bill allows public prosecutors to file a civil lawsuit to enforce the right to repair created by the bill. Actual costs will depend on the number of violations, the number of cases filed, and the amount of court time needed to resolve each case. It costs approximately $1,000 to operate a courtroom for one hour. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund. The 2023-24 budget includes $105 million from the General Fund to backfill declining revenue to the Trial Court Trust Fund.

COMMENTS:

1. Purpose. According to the author:

SB 244 would make it easier and cheaper to get our consumer electronics and appliances fixed. Manufacturers currently have broad authority to restrict who can access repair information, replacement parts, and the specialized tools that they design devices and products to require. This is authority that we know they are using despite little evidence of the harms they claim to protect against, according to a report to Congress by the Federal Trade Commission. Restrictions on repair have direct costs to consumers when they have to pay exorbitant prices to have devices repaired through manufacturer-authorized networks or replace the product entirely. These restrictions also ripple out into the economy, hurting local, regulated repair shops, contributing to our growing e-waste crisis, and stifling the practicality of product owners to resell their property if they choose to do so.

Electronic devices have become an essential part of our lives, and we need access to more choices when it comes to the inevitable repairs that will be needed. Providing independent repair shops and product owners with the correct information and parts to make repairs efficiently will stimulate jobs within the communities where repairs are needed, reduce the need to replace products with simple fixes, and save money for consumers.

1. Background. Many products have become more difficult for consumers to repair, particularly products that require special tools, scarce parts, or proprietary diagnostic software or instructional information to fix. When these products break, consumers have very few options for obtaining repairs and must often turn to manufacturers or a limited number of certified repair providers who are authorized by the manufacturers. As a result, consumers are at the mercy of manufacturers and face lengthy waits and expensive repairs, or are forced to purchase new products because they cannot repair their existing goods. In response to this issue, there is a growing “right to repair” movement, which seeks to provide consumers the legal right to access timely, affordable repairs for products like household appliances, cars, agricultural equipment, cellphones, and other consumer electronics.

This bill creates a right to repair for specified consumer electronics and appliances. Under the bill, the manufacturer of a qualifying product must provide, on “fair and reasonable terms,” the product’s owner or an independent repair shop with sufficient documentation, tools, and parts needed to repair the product. The duration of the manufacturer’s obligation depends on the price of the product; for products that cost more than $100, the manufacturer must make documentation, parts, and tools available for seven years, with shorter time periods for cheaper products.

The right to repair applies to specified electronics and appliances that are normally used or sold for personal, family, household, or home office use, including products sold outside of direct retail sale, including televisions, computers, cellphones, tablets, microwaves, refrigerators, washers, dryers, and dishwashers. Alarm systems, video game consoles, and heavy machinery are expressly exempt from the right to repair. The bill covers products with a wholesale price of at least $50 that have been first sold or used in California on or after July 1, 2021, including products sold outside of direct retail sale. The bill authorizes a city, county, city and county, and the state to bring litigation to enforce a violation of the right to repair and specifies available civil penalties.

1. Related Legislation. SB 271 (Dodd) creates a right to repair for powered wheelchairs, which is enforceable by specified public prosecutors and a private right of action. SB 271 is pending in this committee.
2. Prior Legislation. SB 983 (Eggman), of the 2021-2022 session, would have created a right to repair for specified appliances and electronic products similar to the right created by this bill. SB 983 was held on the Senate Appropriations Committee’s suspense file.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: July 5, 2023

ASSEMBLY COMMITTEE ON JUDICIARY

Brian Maienschein, Chair

SBPCA Bill Id:SB 244

Author:(Eggman) – As Amended Ver:June 29, 2023

SENATE VOTE: 38-0

SUBJECT: Right to Repair Act

KEY ISSUE: SHOULD MANUFACTURERS BE REQUIRED TO MAKE AVAILABLE TO OWNERS AND INDEPENDENT REPAIR PROVIDERS TOOLS, PARTS, AND DOCUMENTATION ON ‘FAIR AND REASONABLE TERMS’ SO THAT THEY HAVE A RIGHT TO REPAIR THEIR consumer appliances and electronics?

SYNOPSIS

Before the advent of software-embedded technology, repairing appliances was generally straightforward, especially if one was handy enough to know how to do it. Today, however, software is embedded in nearly every device that was once strictly mechanical. No matter how many efficiencies technology has provided to our lives, this new layer of digital complexity often requires the use of diagnostic software before even the most basic mechanical problems can be fully fixed. Diagnostic software is generally only available from either the product’s original manufacturer or a licensed repair provider answering directly to the manufacturer. Even if a manufacturer repairs its own products, or establishes a network of authorized repair providers to provide repair services, there are now frequent delays in getting the product fixed through these channels, and the repairs may be more expensive than if a competitive repair market existed. Alternately, if no means of repair is provided, product owners are left with little choice but to throw away the broken product and buy a replacement. This waste hurts consumers’ pocketbooks and the environment, all while reducing competition and limiting the ability of small, local repair shops to stay in business. This bill is a culmination of several years of effort by the author to enact legislation to address this issue.

This bill provides a thoughtful and comprehensive framework that will enable independent repair shops and owners of consumer appliances and electronics to fix broken products—and a broken system. The bill in print addresses many of the concerns manufacturers raised regarding liability, and is modeled in large part on “right to repair” legislation enacted in other states. The bill is supported by a broad coalition of environmental and consumer rights’ advocates. Recent amendments, now reflected in the bill as currently in print, address some of the concerns raised by manufacturing groups initially opposed to the measure. Nevertheless, opponents still continue to argue that a right to repair as established by this bill endangers consumer safety and security. However, the proponents of this measure reiterate that this bill provides meaningful consumer protection and environmental benefits. This measure was previously heard and approved by the Committee on Privacy and Consumer Protection by a vote of seven to zero.

SUMMARY: Requires a manufacturer of electronic or appliance products, as defined, to make available to product owners and repair shops, on fair and reasonable terms, sufficient documentation and functional parts and tools, to effect the diagnosis, maintenance, or repair of the product. Specifically, this bill:

1. Establishes the Right to Repair Act, consisting of the provisions below.
2. Codifies the intent of the Legislature to provide a fair marketplace for the repair of electronic and appliance products and to prohibit intentional barriers and limitations to third-party repair.
3. Requires, notwithstanding any other law, every manufacturer of an electronic or appliance product with a wholesale price to the retailer (or to others, if outside of retail sale) of fifty dollars ($50) or more to make available sufficient documentation and functional parts and tools, inclusive of any updates, on fair and reasonable terms, to effect the diagnosis, maintenance, or repair of the product.
4. Provides that if the product’s price was between fifty dollars ($50) and nine-nine dollars and ninety-nine cents ($99.99), the requirement under 3) extends for at least three years after the last date a product model or type was manufactured, regardless of whether the three-year period exceeds the product’s warranty period.
5. Provides that if the product’s price was one hundred dollars ($100) or more, the requirement under 3) extends for at least seven years after the last date a product model or type was manufactured, regardless of whether the seven-year period exceeds the product’s warranty period.
6. Clarifies the following:
   1. Except as necessary to comply with the bill’s requirements, the bill does not require a manufacturer to divulge a trade secret or license any intellectual property, including copyrights or patents;
   2. The bill does not require the distribution of a product’s source code;
   3. The bill should not be construed to require a manufacturer to make available special documentation, tools, and parts that would disable or override antitheft security measures set by the owner of the product, absent the owner’s authorization; and
   4. The bill does not require a manufacturer to sell service parts that it no longer provides or that it no longer makes available to an authorized repair provider.
7. Requires a service and repair facility or service dealer that is not an authorized repair provider to provide customers with a written notice, prior to repairing a product, that does both of the following:
   1. Informs the customer that the facility or dealer is not an authorized repair provider for the product; and
   2. Discloses if the facility or dealer uses any replacement parts that are either used parts or parts provided by a supplier other than the manufacturer.
8. Defines the terms “electronic or appliance product” and “product” to mean a product that meets all of the following criteria:
   1. The product is an “electronic set,” “appliance,” “major home appliance,” “antenna,” or “rotator,” as those terms are defined under the Electronic and Appliance Repair Dealer Registration Law in the Business and Professions Code. The product is also included if it is sold to schools, businesses, local governments, or other methods outside of direct retail sale;
   2. The product is one for which the manufacturer makes available tools, parts, and documentation to itself or to authorized repair providers; and
   3. The product was manufactured for the first time, and first sold or used in California, on or after July 1, 2021.
9. Excludes from the definitions of “electronic or appliance product” and “product” the following:
   1. “Equipment” and “repair parts,” as those terms are defined under the Fair Practices of Equipment Manufacturers, Distributors, Wholesalers, and Dealers Act in the Business and Professions Code;
   2. An “alarm system,” as defined under the Alarm Companies Act in the Business and Professions Code, including a fire protection system, as defined in the California Fire Code; and
   3. Video game consoles.
10. Defines “authorized repair provider” as an individual or business that is unaffiliated with a manufacturer and that has an arrangement with the manufacturer, for a definite or indefinite period, under which the manufacturer grants to the individual or business a license to use a trade name, service mark, or other proprietary identifier to offer diagnostic, maintenance, or repair services for electronic or appliance products under i) the name of the manufacturer or ii) an arrangement with the manufacturer to offer such services on behalf of the manufacturer.
11. Clarifies that a manufacturer is itself considered an “authorized repair provider” with respect to its own electronic or appliance products if it offers diagnostic, maintenance, or repair services for these products—but only if the manufacturer does not have an arrangement, as described in 10), with an unaffiliated individual or business.
12. Defines “fair and reasonable terms” to mean:
    1. At costs and terms that are equivalent to the most favorable costs and terms under which the manufacturer offers the part, tool, or documentation to an authorized repair provider, accounting for any discount, rebate, convenient and timely means of delivery, means of enabling fully restored and updated functionality, rights of use, or other incentive or preference the manufacturer offers to an authorized repair provider;
    2. For documentation, including any relevant updates, at no charge, except that, when the documentation is requested in physical printed form, a charge may be included for the reasonable actual costs of preparing and sending the copy;
    3. For tools, at no charge and without imposing impediments to access or use of the tools to diagnose, maintain, or repair and enable full functionality of the product, or in a manner that impairs the efficient and cost-effective performance of any such diagnosis, maintenance, or repair, except that, when a tool is requested in physical form, a charge may be included for the reasonable, actual costs of preparing and sending the tool; and
    4. If a manufacturer does not use an authorized repair provider for a given repair, at a price that reflects the actual cost to the manufacturer to prepare and deliver the part, tool, or documentation, exclusive of any research and development costs incurred.
13. Defines “documentation” to mean any electronic or appliance product manual, diagram, reporting output, service code description, schematic, or similar information that is provided by a manufacturer to an authorized repair provider (or that is for use by the manufacturer if the manufacturer does not have any authorized repair providers) for purposes of effecting the services of diagnosis, maintenance, or repair of the electronic or appliance product.
14. Defines “part” to mean any replacement part or assembly of parts, either new or used, made available by a manufacturer of an electronic or appliance product to an authorized repair provider to facilitate the maintenance or repair of a product sold by the manufacturer.
15. Defines “tool” to mean any software program, hardware implement, or other apparatus made available by a manufacturer of an electronic or appliance product to an authorized repair provider for the diagnosis, maintenance, or repair of the product, including software or other mechanisms that provision, program, pair a part, provide, or calibrate functionality, or perform any other function required to repair the product or part back to fully functional condition, including any updates.
16. Exempts a manufacturer or authorized repair provider from liability for any damage or injury caused to any electronic or appliance product, person, or property that occurs as a result of repair, diagnosis, maintenance, or modification performed by a service dealer or owner, including, but not limited to, any of the following:
    1. Any indirect, incidental, special, or consequential damages;
    2. Any loss of data, privacy, or profits; and
    3. Any inability to use, or reduced functionality of, the electronic product or appliance.
17. Clarifies that the liability protection in 16) does not apply to a design defect or manufacturing flaw that existed prior to, or independent of, the repair, diagnosis, maintenance, or modification performed pursuant to this bill.
18. Permits a city, a county, a city and county, or the state to bring an action in superior court to impose civil liability on a person or entity that knowingly, or reasonably should have known it, violates these provisions, in the amount of $1,000 per day for the first violation, $2,000 per day for the second violation, and $5,000 per day for the third and any subsequent violations.
19. Provides that any civil penalties collected are to be paid to the office of the city attorney, county counsel, district attorney, or Attorney General, based on whichever office brought the action.
20. Establishes that any penalty collected pursuant to 18) must be deposited into the Public Rights Law Enforcement Special Fund.

EXISTING LAW:

1. Defines the following terms under the Electronic and Appliance Repair Dealer Registration (EAR) Law:
   1. “Electronic set” includes, but is not limited to, any television, radio, audio or video recorder or playback equipment, video camera, video game, video monitor, computer system, photocopier, or facsimile machine normally used or sold for personal, family, household, or home office use. (Business and Professions Code Section 9801 (h).)
   2. “Appliance” or “major home appliance” includes, but is not limited to, any refrigerator, freezer, range, microwave oven, washer, dryer, dishwasher, trash compactor, or room air-conditioner normally used or sold for personal, family, household, or home office use, or for use in private motor vehicles. (Business and Professions Code Section 9801 (i).)
   3. “Antenna” includes, but is not limited to, a resonant device designed especially for the purpose of capturing electromagnetic energy transmitted by direct satellite or commercial radio or television broadcasting facilities. (Business and Professions Code Section 9801 (j).)
   4. “Rotator,” when used in connection with an antenna installation or repair, includes, but is not limited to, an electromechanical device operated from a remote location to rotate an antenna on a horizontal plane. (Business and Professions Code Section 9801 (k).)
   5. “Service dealer” means persons who, for compensation, engage in, or hold themselves out to the public as offering services in the business of one of the following:
      1. Repairing, servicing, or maintaining an electronic set normally used or sold for personal, family, household, or home office use.
      2. Installing, repairing, servicing, or maintaining equipment or a burglar alarm system for use in private motor vehicles.
      3. Installing, repairing, servicing, or maintaining television or radio receiver antennas, rotators, and accessories or direct satellite signal receiving equipment located on or adjacent to a residence, provided the person is not subject to regulation under the Contractors State License Law.
      4. Repairing, servicing, or maintaining major appliances. (Business and Professions Code Section 9801 (f).)
2. Defines “trade secret” as information, including a formula, pattern, compilation, program, device, method, technique, or process, that both:
   1. Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
   2. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. (Civil Code Section 3426.1 (d); Penal Code Section 499c (a) (9).)
3. Requires that every manufacturer making an express warranty with respect to an electronic or appliance product, as specified, with a wholesale price to the retailer of not less than $50 and not more than ninety-nine dollars and ninety-nine cents ($99.99), make available to service and repair facilities sufficient service literature and functional parts to effect the repair of a product for at least three years after the date a product model or type was manufactured, regardless of whether the three-year period exceeds the warranty period for the product. (Civil Code Section 1793.03.)
4. Requires, in the same manner as provided in 3), that every manufacturer of those described products with a wholesale price of $100 or more, make available to service and repair facilities sufficient service literature and functional parts to effect the repair of a product for at least seven years after the date a product model or type was manufactured, regardless of whether the seven-year period exceeds the warranty period for the product. (Id.)
5. Defines the following terms under the Fair Practices of Equipment Manufacturers, Distributors, Wholesalers, and Dealers Act:
   1. “Equipment” means all-terrain vehicles (but does not include self-propelled vehicles designed primarily for the transportation of persons or property on a street or highway) and other machinery, equipment, implements, or attachments used for, or in connection with, any of the following purposes:
      1. Lawn, garden, golf course, landscaping, or grounds maintenance.
      2. Planting, cultivating, irrigating, harvesting, and producing agricultural or forestry products.
      3. Raising, feeding, or tending to, or harvesting products from, livestock and any other activity in connection with those activities.
      4. Industrial, construction, maintenance, mining, or utility activities or applications, including, but not limited to, material handling equipment. (Business and Professions Code Section 22901 (j).)
   2. “Repair parts” means all parts and products related to the service or repair of “equipment” under 5) a), including superseded parts. (Business and Professions Code Section 22901 (s).)
6. Defines an “alarm system” as an assembly of equipment and devices arranged to detect a hazard or signal the presence of an off-normal situation, but excludes a “fire protection system,” as defined under the California Fire Code, from this definition. (Business and Professions Code Section 7590.1 (c).)
7. Establishes the Public Rights Law Enforcement Special Fund in the State Treasury, to be administered by the Department of Justice, moneys from which, upon appropriation by the Legislature, are to be used by the Attorney General to support the investigation and prosecution of any matter within the authority of the Department of Justice’s Public Rights Division. (Government Code Section 1350.)
8. Provides that “a manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” (Greenman v. Yuba Power Prods., Inc. (1963) 59 Cal. 2d 57, 62.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Before the advent of software-embedded technology, repairing appliances was straightforward if one knew how to do it. Today, however, software is embedded in devices that were once strictly mechanical, adding a layer of digital complexity, and thus requiring diagnostic software to fully fix any problems. Diagnostic software is generally only available from either the manufacturer or a licensed repair provider answering directly to the manufacturer. Even if a manufacturer repairs its own products, or establishes a network of authorized repair providers to provide repair services, there may be delays in getting the product fixed through these channels, and the repairs may be more expensive than if a competitive repair market existed. Alternately, if no means of repair is provided, product owners are left with little choice but to throw away the broken product and buy a replacement. Electronics are no different. This waste hurts consumers’ pocketbooks and the environment, all while reducing competition and limiting the ability of small, local repair shops to stay in business.

The author’s proposed solution is SB 244, California’s “right to repair” legislation, which promises to bring more competition to the repair marketplace and give Californians more repair options. According to the author:

SB 244 would make it easier and cheaper to get our consumer electronics and appliances fixed. Manufacturers currently have broad authority to restrict who can access repair information, replacement parts, and the specialized tools that they design devices and products to require. This is authority that we know they are using despite little evidence of the harms they claim to protect against, according to a report to Congress by the Federal Trade Commission. Restrictions on repair have direct costs to consumers when they have to pay exorbitant prices to have devices repaired through manufacturer-authorized networks or replace the product entirely. These restrictions also ripple out into the economy, hurting local, regulated repair shops, contributing to our growing e-waste crisis, and stifling the practicality of product owners to resell their property if they choose to do so.

Electronic devices have become an essential part of our lives, and we need access to more choices when it comes to the inevitable repairs that will be needed. Providing independent repair shops and product owners with the correct information and parts to make repairs efficiently will stimulate jobs within the communities where repairs are needed, reduce the need to replace products with simple fixes, and save money for consumers.

Power to the people: the ‘right to repair’ movement is a consumer rights and environmental movement that advocates for the right of consumers to repair and modify their own electronic devices, appliances instead of being forced to rely on the manufacturer for repairs. Members of the movement argue that manufacturers are increasingly designing products that are difficult or impossible to repair, leading to more electronic waste and higher costs for consumers. The right to repair movement seeks to require manufacturers to provide consumers with access to repair information, tools, and parts, and to make the repair process more affordable and accessible.

According to an October 2020 article in the New York Times entitled “Fix, or Toss? The ‘Right to Repair’ Movement Gains Ground,” manufacturers of a wide range of products have made it increasingly difficult over the years to repair things, for instance by limiting availability of parts or by putting prohibitions on who gets to tinker with them. It affects a wide range of commonly-used products, from cellphones to refrigerators. The movement has gained momentum in recent years. In March 2023, the European Commission adopted a new proposal on common rules promoting the repair of goods. (Rules promoting the repair of goods, https://commission.europa.eu/law/law-topic/consumer-protection-law/consumer-contract-law/rules-promoting-repair-goods_en.)

In May 2021, the Federal Trade Commission (FTC) released a comprehensive report, in response to Congressional direction, identifying repair restrictions, assessing justifications for these restrictions, and exploring means of expanding consumers’ repair options. (FTC, Nixing the Fix: An FTC Report to Congress on Repair Restrictions (May 2021), available at https://www.ftc.gov/system/files/documents/reports/nixing-fix-ftc-report-congress-repair-restrictions/nixing_the_fix_report_final_5521_630pm-508_002.pdf [hereinafter, “FTC Report”].) In July 2021, President Biden signed an “Executive Order on Promoting Competition in the American Economy.” Among the initiatives therein is an order directing the FTC to “address persistent and recurrent practices that inhibit competition…such as unfair anticompetitive restrictions on third-party repair or self-repair of items[.]” (https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/.) An accompanying White House fact sheet explains that the initiative will “[m]ake it easier and cheaper to repair items you own by limiting manufacturers from barring self-repairs or third-party repairs of their products.” The fact sheet can be found at https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/09/fact-sheet-executive-order-on-promoting-competition-in-the-american-economy/. Congress so far has failed to act on a federal right to repair measure.

According to the FTC Report, “right to repair bills have been introduced in at least 20 state legislatures in the last few years.” (FTC Report, supra, p. 47.) Those include states such as Minnesota and New York. The Minnesota law requires manufacturers of electronic devices such as phones, tablets, laptops and household appliances to provide parts, tools, and instructions on how to fix equipment to independent repair shops and consumers. But lawmakers exempted farm equipment, video game consoles, specialized cybersecurity tools, medical devices and vehicles from the bill before it was approved. New York’s version is narrower, in that it excludes, for example, any “product sold under a specific business-to-government or business-to-business contract … not otherwise offered for sale directly by a retail seller.” New York’s measure only applies to products made after July 1, 2023, which excludes most products currently in use.

Copyright, trade secret, state warranty law, and consumer protection issues. Existing law, California’s Song-Beverly Consumer Warranty Act, requires that any manufacturer making an express warranty with respect to an electronic or appliance sold in California make available sufficient service literature and functional parts to service and repair facilities. (Civil Code Section 1793.03.) This requirement applies for three years after its last date of manufacture if the wholesale price was between $50 and $99.99 and seven years after manufacture if the wholesale price was $100 or more. (Id.) This is consistent with federal law, which prohibits the warranty provider on a consumer product from requiring the use of branded or trademarked items or services in connection with the product once it is purchased. (18 U.S.C. § 2302(c).) In other words, if a product owner chooses to use an independent repair shop or replacement parts purchased from a third-party vendor, doing so does not void the warranty on that product.

As discussed by a coalition of intellectual property law professors supporting this measure, any concerns about this measure conflicting with manufacturers’ intellectual property rights are overstated. That coalition points to longstanding legal precedent recognizing a right of repair against any claims of copyright and argue:

As early as 1901, courts have recognized a “right of repair or renewal” under U.S. copyright law. Doan v. American Book Co., 105 F. 772 (7th Cir. 1901). Since then, courts have repeatedly brushed back efforts to use copyright law to control the markets for repair parts and information. See ATC Distribution Grp., Inc. v. Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700, 703 (6th Cir. 2005) (holding part numbers and technical illustrations unoriginal); see also Southco, Inc. v. Kanebridge Corp., 258 F.3d 148 (3d Cir. 2001) (part numbers unprotectable); Toro Co. v. R & R Prod. Co., 787 F.2d 1208, 1213 (8th Cir. 1986) (part numbering system unoriginal).

Congress has also weighed in, consistently allowing a right to repair:

Amending § 117 of the Copyright Act, Congress explicitly embraced repair. See § 17 U.S.C § 117(c). And more recently, the Copyright Office has recognized that repairing a range of software-enabled devices, from smartphones to tractors, is non-infringing activity. See Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 86 Fed. Reg. 206, 59627 (October 28, 2021).

Preemption concerns have also been dismissed by a coalition of law professors, who purport to be experts in intellectual property, and submitted a letter in support of this measure writing:

Facilitating the repair of consumer devices is consistent with federal copyright law and policy. SB 244 is in no way preempted by the Copyright Act, which merely prohibits states from enacting exclusive rights “equivalent” to those provided under federal law. 17 U.S.C. § 301(a). Nor does SB 244 conflict with § 1201 of the Copyright Act. Some devices may not yet be subject to an exemption permitting the circumvention of technological protection measures for repair purposes. But SB 244 does not require, authorize, or even contemplate circumvention. To the extent those activities are unlawful under federal law, they will remain so after the enactment of SB 244.

If anything, the rules favoring repair under patent law are even clearer. Under the exhaustion doctrine, when a patentee sells a particular device to a consumer, it loses the right to control the use or subsequent transfer of that device. Exhaustion is why you can sell your used car without the manufacturer’s permission. It’s also why you can repair it free from any risk of patent liability. So long as you don’t “reconstruct” the patented article—that is, rebuild it entirely—there is simply no infringement. See Aro Mfg. Co., Inc. v. Convertible Top Co., 365 U.S. 336 (1961). More recently, the Supreme Court made clear that manufacturers cannot leverage their patent rights to restrict the repair of the devices they sell. Impression Prods., Inc. v. Lexmark Int’l, Inc., 581 U.S. ___ (2017).

Opponents argue that SB 244 has the potential to weaken the privacy and security features of various electronic products. This argument has been squarely addressed by the Committee on Privacy and Consumer Protection, the committee with primary jurisdiction over these issues, which recently heard and approved this bill. In sum, the Privacy’s Committee’s analysis points to the bill’s explicit protections for manufacturers’ intellectual property. The opponents also conflate between using firmware to protect intellectual property (which would be permissible) and using firmware to prevent product owners and repair shops from fixing their own products (which would not).

The opposition’s arguments also ignore advances from developers of electronic devices that enable a product that is being serviced to hide personal data and limit access to only functions required for troubleshooting. For example, Samsung has recently released “Samsung maintenance mode” for its products, which it claims can relieve user anxiety that comes with giving a personal device to someone for repairs, by letting users block access to their personal information, such as their photos, messages or contacts.

The Assembly Committee on Privacy and Consumer Protection’s analysis on SB 244 (pp. 9-15) provides a more comprehensive analysis of the issues identified above.

This bill provides a right to repair to a broad range of consumer electronics, such as televisions, personal computers, printers, speakers, cellphones, and tablets, and appliances, such as microwaves, refrigerators, washers, dryers, and dishwashers, that are normally used or sold for personal, family, household, or home office use. The bill also covers these products if they are sold outside of direct retail sale. The bill covers products that have been first sold or used in California (regardless of where they were manufactured, designed, or assembled) on or after July 1, 2021, and have a wholesale price of at least $50. This bill explicitly excludes alarm systems, video game consoles, and heavy machinery.

Under this bill, a manufacturer of a covered product would have to make available sufficient documentation, parts, and tools on “fair and reasonable terms” to allow either the product’s owner or an independent repair shop to diagnose issues with, maintain, and repair the product. Manufacturers would have to make documentation, parts, and tools available for three years from a product’s last date of manufacture if the product’s wholesale cost was between $50 and $99.99, and seven years if it was $100 or more. These prices and timeframes are based on California’s Song-Beverly Warranty Act.

The definition of “fair and reasonable terms” means that tools, parts, and documentation generally must be provided to owners and independent repair shops on the same terms they are offered to authorized repair providers. The definitions of “tools” and “documentation” require that they be offered “at no cost,” unless a physical tool or printout is requested. Opponents point out that manufacturers incur costs in producing such items, such as software, which is included in the definition of “tool” but is not necessarily produced in a “physical” form that would allow the manufacturer to charge reimbursement for by an independent repair provider. They argue that they do not necessarily offer such things to their own authorized repair providers free of charge, and would therefore put their own authorized repair providers at a competitive disadvantage. It appears that the intent of the bill is to require manufacturers to provide tools, documentation, and parts on equal terms to authorized and independent repair shops, and therefore the author may wish to update the definition of “fair and reasonable terms” to resolve any internal inconsistency.

The bill clarifies that a manufacturer is not required to sell service parts if the service parts are no longer provided by the manufacturer or made available to an authorized repair provider, and that it is not required to make available special documentation, tools, and parts that would disable or override antitheft security measures set by the owner of the product without the owner’s authorization. Other common-sense constraints imposed by the bill include a provision establishing that if a repair shop is not a manufacturer’s authorized repair provider, then it must provide customers with a written notice informing them of this fact, as well as whether the shop uses replacement parts that are used or provided by a supplier other than the manufacturer. This provision should assuage concerns that customers might be misled into thinking that an independent repair provider is affiliated with the manufacturer. This also ensures that the manufacturer’s brand is not tarnished by potentially sub-par repair work completed by an independent repair shop.

Liability protections & enforcement. In response to concerns regarding potential liability exposure to the manufacturer from extending a right to repair, the bill in print includes an express liability protection from any damage or injury caused to any electronic or appliance product, person, or property that occurs as a result of repair, diagnosis, maintenance, or modification performed by a service dealer or owner. The bill clarifies, however, that this protection in no way limits a manufacturer’s liability for a design defect or manufacturing flaw that existed prior to, or independent of, the repair, diagnosis, maintenance, or modification performed pursuant to this section.

Enforcement of this bill is reserved for a city, a county, a city and county, or the state, any of which may bring a claim for civil penalties for knowing or reasonably should have known violations.

This bill provides numerous consumer and environmental benefits. By promoting consumer’s ability to repair expensive and potentially toxic products this bill provides a significant benefit to everyday Californians and the natural environment they enjoy.

More choices for consumers. Many people don’t live close to a repair outlet ordained by the original manufacturer—whether that’s an Apple store to replace a phone battery or the Whirlpool outlet to fix a dishwasher. The author of this bill argues that people should have more repair choices, which are currently stifled by manufacturers.

Less waste. The average American family generates about 176 pounds of electronic waste each year, and nationally, the United States generates 6.9 million tons of electronic waste. CALPIRG estimates that Californians dispose of an astonishingly large total of 46,900 cell phones every day. As a nation Americans dispose of 141 million cell phones each year. Many of those devices could be used again, but simple repairs can become impossible without the proper tools and information.

Greater availability of affordable used devices. Many middle income Californians can’t afford the latest gadgets, which typically are “upgraded” annually. Extending the life of tablets, laptops and other electronics will allow more people more ongoing access to these important technologies. A 2021 report from U.S. PIRG, a consumer advocacy group, estimated that easy device repair could save an average family $330 every year. (See https://www.consumerreports.org/right-to-repair/new-state-law-could-make-it-easier-to-fix-your-electronics-a1914917475/.)

More opportunities for small business. Repair work is typically done by small local businesses, and more repair means more opportunities for those businesses to grow and new entrepreneurs to flourish. Employees would gain valuable skills as well. Last year CALPIRG and iFixit surveyed 63 California-based independent repair shops. Sixty-seven percent of those shops indicated that they had to turn away potential customers because of restricted access to repair parts, materials, software or information. Moreover, 59% of the shops surveyed indicated that they might have to close their doors if manufacturers continue to restrict access to repair materials. More access to repair parts, tools and information provide greater opportunities for local small businesses to grow or new businesses to start.

ARGUMENTS IN SUPPORT: A broad coalition of environmental organizations cite to staggering statistics in support of this measure:

Electronic waste (e-waste) is the fastest growing waste stream on the planet—up 21% from 2015–20201 —and our ability to process waste is not keeping up. It is estimated that Californians throw away 46,900 cell phones every day and discard 1.1 million tons of toxic electronic waste each year. E-waste accounts for 70% of heavy metals in our waste stream, including lead, mercury, and cadmium. When these metals leach into groundwater, they can accumulate in fish and other aquatic life, with devastating effects on human health, from kidney disease to diabetes to cancer. Recycling e-waste is certainly better for the environment, but electronics recycling is rare and incomplete. Of the 50 million tons of e-waste produced annually, less than 20% is recycled.6 Even when e-waste makes it to a formal recycling facility, much of it can’t be recovered. Smelters are only able to recover about one sixth of the metals inside. Those metals aren’t fully recovered, either—recovery rates for cobalt are about 30%. Nearly 20% of e-waste is made up of plastic, and little of that can be recycled.

Our best chance at reducing the damaging effects of electronics manufacturing on the environment is to keep our stuff around longer, slowing consumption. Electronics manufacturing creates a huge amount of waste, far more than consumers throw out. The production of devices like smartphones is so energy intensive that if we held onto phones one more year on average, the national emissions reductions would be equivalent to taking 636,000 cars off the road.

Appliances face many of the same issues. Producing a household appliances may require up to 100 times its weight in resources to produce, and mining and processing those resources “account for between 25% and 50% of all greenhouse gasses emitted during the life cycle of a household appliance,” according to a 2022 investigation into the consequences of appliance manufacturing by Canadian environmental research group Équiterre. Extending the lifespan of a washing 12 machine by six years reduces its overall environmental impact by 46%.

A coalition of consumer rights’ organizations also support the bill’s efforts to guarantee consumers’ right to repair:

Consumers who have been able in the past to choose to fix their own cars, machinery, appliances, or other products, or to call on a trusted neighborhood repair shop or mechanic, know how important these ownership rights are. But as products from smartphones and televisions to appliances become increasingly outfitted with computer software, it has become easier for manufacturers to interfere with these rights. It’s often difficult now for consumers to make simple repairs on their devices—even simple repairs such as changing a smartphone battery or replacing a cracked screen. Not only are the electronics frequently designed in a way to intentionally prevent easy repair, but manufacturers are restricting access to the basic diagnostic information, repair tools, and replacement parts needed to fix the products. Some manufacturers even put digital locks and disabling tripwires on devices to block third-party repair.

These tactics force consumers to rely on the manufacturer, or the manufacturer’s handpicked servicer, to fix these products. The manufacturer is then free to charge whatever it wishes, or even to refuse to repair the product and force the consumer to throw it away and buy a new product. Manufacturers and their representatives have worked to defeat Right to Repair legislation, often by using spurious arguments about safety and security. On the contrary, this right to repair would better ensure the safety of products, and without sacrificing consumer choice. Ultimately, the best way to ensure that all repairs are done safely is to give people the information, replacement parts, and tools they need. Independent repair technicians would also have to meet whatever certification requirements are set by state law, just like authorized repair technicians would. This bill would ensure that they all have the same access to proper instructions that are vetted for safety.

ARGUMENTS IN OPPOSITION: TechNet and the California Chamber of Commerce opposed the bill unless amended to include express liability protection, which was included in the most recent amendment to the bill. They raise other concerns as well:

SB 244 requires manufacturers to provide owners, service and repair facilities, and service dealers with the documentation, parts, and tools that they provide to authorized repair providers. In the definition of “authorized repair provider,” the bill treats a manufacturer itself as an authorized repair provider if the manufacturer lacks any existing arrangement with an unaffiliated authorized repair provider. This would mean that such manufacturers must hand over the documentation, parts, and tools used for their in-house diagnostic or repair offerings. In many cases, these repairs are offered exclusively in-house, are conducted under controlled environments, and require extensive technical and safety training. Manufacturers should not be required to treat in-house repairs the same as those that are arranged with an authorized repair provider. By removing this requirement, the bill would retain the parity it creates between what manufacturers provide to authorized repair providers and what they provide to owners, service and repair facilities, and service dealers.

As currently written, SB 244 is retroactive to July 1, 2021. Requiring existing electronic products to meet retroactive repair standards imposes new unanticipated costs on manufacturers and creates an unfair competitive landscape. Existing products were designed and manufactured to meet the repairability standards in place at the time the equipment was created. In addition, to ensure that documentation, parts, and tools are made available to the general public, manufacturers may need to renegotiate completed supply agreements or create new and costly supply chains for discontinued products. Companies have already made strategic pricing decisions based on cost assessments and other past business considerations. A retroactive requirement also creates a competitive disadvantage for companies of varying sizes and product lines, and this will be especially burdensome for smaller companies to comply.

Similar concerns have been raised by coalitions of a broad spectrum of manufacturers of home appliances, consumer electronics, HVACR, security equipment, toys, lithium-ion batteries, and other connected electronic products, as well as companies that rely on the secure operation of these devices:

SB 244 mandates that OEMs treat any independent repair provider in much the same way as authorized network providers – but without any contractual protections, requirements, or restrictions. In doing so, the bill places consumers and their data at risk, undermines the business of California companies that are part of OEM-authorized networks, and stifles innovation by putting hard-earned intellectual property in the hands of hundreds, if not thousands, of new entities. Further, the bill fails to account for the wide range of repair and refurbishment options currently available to California consumers from both OEM-authorized and independent repair sources. It also does not address advancements in sustainability by electronic product manufacturers.

REGISTERED SUPPORT / OPPOSITION:

Support

350 Conejo / San Fernando Valley

5 Gyres Institute

Aaron Perzanowski, Professor of Law & Oliver C. Schroeder Jr. Distinguished Research Scholar

Active San Gabriel Valley

Adam Rak - Mayor of San Carlos

Aida Ashouri - Los Feliz Neighborhood Council Representative

Alex Rounaghi - Laguna Beach City Councilmember

Alexander Pedersen - Capitola City Councilmember

Alison Hicks - Mayor of Mountain View

Alltech Computers

Amourence Lee - Mayor of San Mateo

Ann Bartow, University of New Hampshire Franklin Pierce School of Law

Ann Schneider - Mayor of Millbrae

Ariel Kelley - Mayor of Healdsburg

Arthur C. Brown- Mayor of Buena Park

Ascdinatd

Aspiration

Associated Students, California State University, Northridge

Ban Sup (single Use Plastic)

Barry Waite - Mayor of Lomita

Bay Area Computer Repairs

Bigfoot Repair

Bill Uphoff - Mayor Pro Tem of Lomita

Bitonik

Blair Stewart - Brea City Councilmember

Blu Rhoden - Los Feliz Neighborhood Council Alternate Youth Representative

Bonnie Turnbull, Board Trustee, Lake Tahoe Unified School District

Breast Cancer Prevention Partners

Brian Tabatabai - Mayor Pro Tempore of West Covina

Bruce Delgado - Mayor of Marina

Bryan Azevedo - Vice Mayor of San Leandro

Bryan Macdonald - Mayor Pro Tempore of Oxnard

California Chapters of The Solid Waste Association of North America's Legislative Task Force

California Environmental Voters

California Environmental Voters (formerly Clcv)

California Product Stewardship Council

Californians Against Waste

CALPIRGg, California Public Interest Research Group

Carbon Cycle Institute

Ceetee Repairs

Cellphone Repair Mobiletech

Center for Oceanic Awareness, Research, and Education, the

Cherise Khaund, School Board Member, Mt. Diablo Unified School District

Chris Duncan - Mayor of San Clemente

Chris Herrod - Healdsburg City Councilmember

Chris O'malley - Altadena City Councilmember

Chris Ricci - Modesto City Councilmember

Christian Dinco - Mayor Pro Tempore of Eastvale

Christine Krolik - Mayor of Hillsborough

Christopher P. Smith - Mayor Pro Tempore of Oakdale

Christy Holstege - Palm Springs City Councilmember

Citizens' Climate Santa Cruz

City and County of San Francisco

City of Berkeley Zero Waste Commission

City of Los Angeles Councilmember Nithya Raman

City of Perris

City of Sunnyvale Council Member Richard Mehlinger

City of Thousand Oaks

City of Thousand Oaks

Clean Water Action

Clevertech LLC