Waste Watch: Colorado and New York Pass Right to Repair Measures

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

The month of June saw two victories on the right to repair front. New York’s legislature passed the first-ever state digital electronics equipment right to repair bill; the bill still awaits  governor Kathy Hochul’s signature before it becomes law.

Earlier in the month, Colorado governor Jared Polis signed into law a right to repair measure, which gave power wheelchair users and independent repair services the means and parts needed to repair their devices. The Colorado measure is the first time a right to repair measure has reached a governor’s desk since Massachusetss voters approved an automobile right to repair ballot initiative in 2012.

Legislative support for the New York bill was overwhelming, with the state Assembly voting 145-1 in favour, following an earlier state Senate vote of 59-4, despite an intense lobbying campaign mounted against the measure by manufacturers of consumer electronics devices, according to the U.S. Public Interest Research Group (U.S. PIRG).

New York’s bill applies to a plethora wide of ‘digital electronic equipment,’ including mobile phones, tablets, laptops, and personal computers. The measure excludes farm and heavy equipment, household appliances, police radios, medical devices, gaming consoles, and automobiles (which are separately covered by a national right to repair agreement, spawned by a the 2012 Massachusetts ballot initiative). Some of the excluded areas – farm equipment for example- have themselves been subjects of their own right to repair battles (see Waste Watch: Europeans Get Right to Repair for Some Consumer Electrical Goods, While John Deere Reneges on Promise to U.S. Farmers to Make Diagnostic Software Freely Available).

The limited New York measure could establish a base for a de facto national measure, because once diagnostics information is available in New York, it can be shared everywhere via the internet. Moreover, the parts that the new measure mandates be made available in New York can be shipped more widely to consumers elsewhere. My Modern Met,reports in New York State Passes “Right to Repair” Law for Your Electronics:

Once the bill becomes law, repair prices will hopefully fall due to the break-up of the almost monopolistic control of manufacturers. Third-party retailers will be able to enter the market and offer their services. While it is a New York law, the internet is largely universal, so consumers in other states are likely to benefit from the release of information. This important issue of consumer protection has recently gained federal traction too.

It’s been a slow steady slog, but the right to repair movement has prodded some companies to reconsider their business models to embrace – or at least not so actively oppose – limited changes (see these earlier posts, Right to Repair: Will Corporate Concessions Suffice? and Failing the Fix: Grading Apple, Dell, Google, Microsoft on the Ease of Repair of Their Products). Even the major hold-out, the big Apple, has made concessions (see this earlier post, Apple Announces Unimpressive Self Service Repair Program for Some iPhone Models for further details).

But as I’ve written before, ‘voluntary’ corporate concessions won’t alone suffice, so I’m pleased to see New York taking the lead on such an important consumer initiative. Here I’d like to highlight one point, sparked by a statement released following New York’s passage of its right to repair measure by U.S. PIRG’s right to repair campaign director, Nathan Proctor, emphasising  the impact that measure might have in stemming the growth of e-waste:

“Electronic waste is the fastest growing American waste stream. It takes a massive toll on the environment to mine the materials, and then build and ship all these electronics. We cannot allow the manufacturer to block repairs, and force people to constantly replace products or pay through the nose for ‘authorized’ service. Right to Repair is common-sense: if it breaks, fix it. We hope to keep expanding repair access so that people can fix all the products they rely on.”

One point Proctor didn’t mention: extending the lifespan of consumer electronics products could also mitigate – albeit on a very limited basis – the current shortage of semiconductor chips. Each device that a consumer can repair rather than replace is one fewer device for which scarce chips won’t have to be found to manufacture an unnecessary replacement.

Arrayed in support of New York’s measure were U.S. PIRG and NYPIRG, iFixit, Electronic Frontiers Foundation, Consumer Reports Advocacy, Repair Preservation Group Action Fund, which Repair.org organized into an effective coalition to lobby against the big Tech behemoth. Permit me to allow some right to repair proponents to take a bow for their successful lobbying efforts. Per theU.S. Pirg statement cited above:

Gay Gordon-Byrne, Executive Director of Repair.org said: “Every consumer in New York is going to benefit from this landmark legislation. We’ll all be able to fix the stuff we like,  stop being forced to buy new things we don’t want, and make it possible for the secondary market to provide high quality options for reuse.”

Kyle Wiens, CEO of iFixit said: “This is a huge deal. iFixit has fought for over a decade for consumer’s right to repair their products. We’re looking forward to working with manufacturers to get service documentation in the hands of more people.” [Jerri-Lynn here: emphasis in original.]

I’m reporting the New York news from a glass half-full perspective, as I understand that the measure’s scope is indeed limited. That it doesn’t cover farm equipment represents a significant gap. But it provides a floor, first as I argued above, for dissemination of repair information nationwide via the internet. Additionally, the New York measure could provide a model for other states to emulate, or for the Federal Trade Commission (FTC) to consider as it mulls further right to repair action.

Colorado and Power Wheelchairs

On June 2, Colorado governor Polis signed into law a measure that requires manufacturers of power wheelchairs  to make parts, diagnostics, tools, repair manuals, and digital access to owners of these devices and independent repair services at fair and reasonable price, according to Fox x News, Colorado governor signs nation’s first Right to Repair wheelchair bill into law.

U.S. PIRG produced a key report that was instrumental to the state bill’s passage, according to REPORT: ‘Stranded’ shows how new Colorado wheelchair Right to Repair law is essential.  This report documents the difficulties wheelchair users faced, due to the concentration of the wheelchair market in the U.S.  US PIRG’s Colorado affiliate was active in the campaign that led to adoption of the new Colorado law.

Kaiser Health News produced an expose that identified  a usual suspect lurking behind the curtain in restricting competition in the power wheelchair market Despite a First-Ever ‘Right-to-Repair’ Law, There’s No Easy Fix for Wheelchair Users:

The multibillion-dollar power-wheelchair market is dominated by two national suppliers, Numotion and National Seating and Mobility. Both are owned by private equity firms that seek to increase profits and cut spending. One way they do that is by limiting what they spend on technicians and repairs, which, when combined with insurance and regulatory obstacles, frustrates wheelchair users seeking timely fixes.

The $70 billion durable medical equipment market has been an attractive target for private equity investment because of the aging U.S. population, the increasing prevalence of chronic conditions, and a growing preference for older adults to be treated at home, according to the investment banking firm Provident Healthcare Partners. Medicare’s use of competitive bidding favors large companies that can achieve economies of scale in manufacturing and administrative costs, often at the price of quality and customer service.

Further exacerbating the power wheelchair situation are federal regulations. Again, according to Kaiser Health News:

Regulations set by Medicare and adopted by most Medicaid and commercial health plans have led to lower-quality products, no coverage for preventive maintenance, and enough red tape to bring wheelchairs to a halt.

Kaiser Health News did a deep dive into how the Colorado measures might change the status quo, so I encourage readers to read that account in full:

The right-to-repair bill may help, said Mark Schmeler, an associate professor of rehabilitation science and technology at the University of Pittsburgh, but it’s not a perfect solution. “There is a serious problem with wheelchair repairs, and the consumers are basically crying out for help,” he said.

Part of the problem, Schmeler said, is a Medicare decision not to cover preventive maintenance for power wheelchairs. Many wheelchair users are unfamiliar with or unable to do routine maintenance such as tightening the bolts or cleaning the casters. As a result, problems aren’t addressed until something breaks down, often leaving the user stranded.

Additionally, Medicare officials have interpreted the statute establishing payment for durable medical equipment to cover wheelchairs only for in-home use. Consequently, many power wheelchairs aren’t designed for outdoor use and are prone to failures when users take them outside. “It’s like you’re outside walking around all day with your slippers on,” Schmeler said.

When Medicare adopted competitive bidding for durable medical equipment in 2011, it allowed large companies to undercut the pricing of smaller, local wheelchair shops. Numotion and National Seating and Mobility bought out many smaller companies and now dominate the market.

Competitive bidding encourages suppliers to press manufacturers for lower-cost wheelchairs, which spurs manufacturers to use lower-quality parts. More than 1 in 4 repairs result in users being stranded, missing a medical appointment, or missing work, according to a study published in 2016 in the journal Archives of Physical Medicine and Rehabilitation.

Wheelchair suppliers make most of their money by selling the wheelchair and tend to lose money on repairs. So there is little incentive to hire more technicians or pay for training.

Colorado lawmakers weren’t swayed by familiar lyrics sung by wheelchair suppliers, testifying  that allowing independent repair would jeopardize user safety. Massachusetts and Pennsylvania have similar legislation pending, and the Kaiser health account also mentions three right to repair measures introduced to the current Congress, in addition to the FTC.

The Bottom Line

I’ll be keeping an eye on the New York and Colorado situations closely, to see just what the impacts the measures prove to have on their respective markets. These two state developments may spur action in further U.S. jurisdictions, both state and federal, as well as extendto broader coverage, with farm equipment an obvious area for further measures, and perhaps household appliances as well. Those who live in European Union countries enjoy a right to repair in both these areas. Why shouldn’t the same be available to those who reside in the U.S. as well?

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  1. flora

    Excellent news from Colorado! woot! (as the kids used to say) Hoping for equally good news from NY, but waiting to see. Thanks for this post.

    1. flora

      One point Proctor didn’t mention: extending the lifespan of consumer electronics products could also mitigate – albeit on a very limited basis – the current shortage of semiconductor chips. Each device that a consumer can repair rather than replace is one fewer device for which scarce chips won’t have to be found to manufacture an unnecessary replacement.

      With the supply chains so screwed up for the past couple of years and not looking to improve anytime soon, this seems like the most basic of common sense laws for US consumers.

    2. Jerri-Lynn Scofield Post author

      NY’s governor is expected to sign the measure. And with those vote tallies, I don’t think she really has a choice as, IIRC, the gist is a veto may be overridden via a 2/3 majority vote in each of the state Senate and Assembly.

  2. drumlin woodchuckles

    The Lords of Planned Obsolescence are very cynical and very wily. They will respond to this by re-designing their products so that they absolutely positively cannot be repaired. Then they will laugh as people excercise their “Right to Repair” by trying to repair the non-repairable. ” You have the Right to Repair that object which we have designed to be physically non-reparable no matter what. Your mission, should you decide to accept, is to repair that non-reparable object. Best of luck.”

    The Lords of Planned Obsolescence will have to be tortured to design their things to be fixable in fact as well as in theory. Perhaps this could open up a market niche for makers of fixable things.

    1. Fraibert

      It’s not even a matter of redesigning the products. For various design and economic reasons, parts in electronics can be heavily integrated to the point where the most rational repair to one particular subsystem is to replace an entire component. For example, if a RAM chip on a cell phone’s motherboard fails, it’s not going to make sense to desolder the single chip and replace it (it’s probably not even rational to spend the time figuring out which chip failed). Instead, any reasonable technician is going to just replace the entire motherboard.

      The above means that repairs aren’t necessarily economical or otherwise just reasonable to a normal person. I’d estimate, for example, that a motherboard replacement on my current smart phone (after a quick google search) would be somewhere around $250 – $300, including $185 for a used motherboard. Given that my phone is already 3+ years old and no longer receives OS updates (Android), the balance is just to replace the device anyways…

      The equation changes on high ticket items. Farm equipment definitely makes sense to repair, and even high end consumer devices (e.g., flagship tier TVs) can be spendy enough to justify repair expenses. But no one’s going to repair the $200 TV they bought for the basement.

      1. drumlin woodchuckles

        Then we need forcible take-back laws forcing every business which makes things to take back their unfixable things for recycling. Perhaps the German laws should be word-for-word adopted here.

      2. playon

        With cellphones, it wouldn’t seem that difficult to socket certain key components to allow them to be more easily replaced, as they are on many laptops.

    2. JohnnySacks

      We’ve seen it all before, the script is tiring. You’ll need a toolbox full of specialized tools required to remove the widgets to enable access to the broken megaphelators.

  3. Alice X

    Each device that a consumer can repair rather than replace is one fewer device for which scarce chips won’t have to be found to manufacture an unnecessary replacement.

    One less device in the landfills, but as drumlin notes, I’m not so optimistic.

  4. Arizona Slim

    I just tried to post a link to this article on Louis Rossman’s YouTube channel. Alas, my comment ran afoul of the YouTube algorithm. I guess it doesn’t like the name of this website.

  5. John Zelnicker

    If wheelchair suppliers make their money on the sale and lose money on repairs, you’d think they would be glad to pass off the repairs to other folks.

    I know, I know, that’s too logical. Control, at any cost, is what’s important.

    Just goes to show these private equity idiots aren’t the geniuses they make themselves out to be.

    It’s good to see the progress being made, however modest it may be.

    Keep us posted, Jerri-Lynn.

  6. Big River Bandido

    I’m not so impressed with the Colorado bill — it’s a perfect example of the “trimming” and phoniness I’ve come to expect from a Democrat like Jared Polis. Only PMC sh!tlibs would take a popular benefit that ought to be applied universally…and tailor it so that only the smallest possible subset of people actually benefit.

    1. Alec Cox

      I lived in Colorado and saw Jared Polis up close. The man is not to be trusted under any circumstances. Any ‘progressive’ action on his part is purely for appearance’s sake. Behind the scenes his people will already be working to undermine it.

    2. drumlin woodchuckles

      I like the word ” sh!tlibs”. I wish I had thought of it. I will try to integrate forms of it into relevant comments going forward.

    3. JohnnySacks

      Miniscule carveouts that can be sold as big wins and the tweaks to expand to add more miniscule carveouts used for future electoral donations. Shitlibs in a nutshell – it’s practically their trademark.

      See also: special health care packages applied only to specific classes of citizens. (e.g. patriotic litmus tests)

      1. playon

        A case in point would be the senate “gun reform” package which is primarily theatrical.

  7. Ana

    In the late 1970’s I worked as a law clerk on the class action lawsuit handled through the Western Law Center for the Handicapped that broke the world wide monopoly Everest and Jennings had on mfg of wheelchairs. Those of us who used them called them “tanks” because they were so heavy and ill fitting.

    How ugly and scary it was to work on the case was is another story. I found out companies with money can hire large scary people to follow you anywhere including home and pound on your door in the middle of the night.

    We won eventually and broke their monopoly. So many new small companies were formed that invented interchangable parts and lightweight construction. It was wonderful.

    And now it’s all lost as one by one the innovative makers were bought out, forced out and rolled up. Including the one here in Sacramento founded by three friends of mine. It’s now owned by Numotion.

    I despair seeing what I thought of as gains for the people being obliterated.

    Ana in Sacramento

    1. drumlin woodchuckles

      I would never suggest an illegal countermeasure for the doorpounders like . . . . figuring out just where on the door they pounded and putting some poison ivy oil on just that exact part of the door. That would be illegal.

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