THE UNEASY CASE OF PROGRAMMED OBSOLESCENCE.

Date01 January 2020
AuthorMoyse, Pierre-Emmanuel

I--Planned Obsolescence A--London's Law of Obsolescence B--Social Engineering: The Influence of Thorstein Veblen C--Technocrats II--Stories of Programmed Obsolescence A--The Light Bulb Affair 1--General Electric and the Phoebus Cartel 2--Evidence of Programmed Obsolescence 3--State Authorities and Product Lifespan B--Y2K Period. III--Epilogue: The Apple of Discord A--The Laws of Obsolescence B--The Bitten Apple IV--Conclusions This article is an attempt to understand the context in which the concept of programmed obsolescence has emerged and evolved to slowly make its appearance in today's legal landscape. It concludes the first phase of our four-year research project. The text aims at describing the genealogy of the concept of programmed obsolescence, not its legal treatment. The ambition here is to revisit common places of obsolescence, from its acceptance in Bernard London's famous pamphlet to the popular tale of the reduced life of the light bulbs. This essay focuses on facts surrounding obsolescence narratives. It describes the grammar of obsolescence, its epistemology. It is only in the second phase of our project that we will look at the legal and technical grounds, both in terms of specific remedies and statutory initiatives, to redress some of the negative impacts attributed to the phenomenon. The findings of this subsequent phase of our project constitute the object of an article in preparation.

The history and early manifestation of programmed obsolescence tells a compelling story about consumption and the contradictions of capitalism. To keep the wheels of the economy turning and workers active, more goods must be purchased. Innovation and competitive consumption are thought to be conditions of progress. Jean-Jacques Rousseau, in his 1754 work Discourse on Inequality, predicted such:

Insatiable ambition, the thirst of raising their respective fortunes, not so much from real want as from the desire to surpass others, inspired all men with a vile propensity to injure one another, and with a secret jealousy, which is the more dangerous, as it puts on the mask of benevolence, to carry its point with greater security. In a word, there arose rivalry and competition on the one hand, and conflicting interests on the other, together with a secret desire on both of profiting at the expense of others. All these evils were the first effects of property, and the inseparable attendants of growing inequality. (1) Upon walking through the early days of programmed obsolescence, we realized that law is perhaps ready to address programmed obsolescence for the reason that, in the Western world, to a large extent, both obsolescence and law are products of the market economy. Obsolescence might have been accepted as an unabridged matter of business, but not of law. Law, in our Western civilization overall embraces and supports the structure of the market. In this perspective, the law of programmed obsolescence seems to be a contradiction in terms, an oxymoron. If this assumption stands, it means that the recent legislative initiatives tackling programmed obsolescence signal an important shift and are explainable perhaps by social concerns strong enough to check the forces of the liberal economy. Such concerns involve the themes of overconsumption and environment.

Let's start with a generic definition of programmed obsolescence. Programmed obsolescence is generally understood as the engineered, premature breakdown of a product to trigger its replacement by its own maker. One can speak of an unvirtuous circle. This proposed definition is not scientific but captures the constitutive elements of programmed obsolescence. It points to the designer of the product, the engineer or the manufacturer. It conveys a certain idea of fault, some wrongdoing, in the nature of an engineered default which affects the durability of the product. The definition also takes into account the consumer's expectations with respect to the serviceability of the product. As it is, the definition reads almost as a commandment: replacement of the product, when provoked and not initiated by the consumer, ought to be addressed. And indeed, consumer law has traditionally offered protection to the purchaser when the product is of a lesser quality than expected. Durability is generally a ground of action recognized in most jurisdictions. Section 38 of the Quebec Consumer Protection Act, for example, prescribes that "[g]oods forming the object of a contract must be durable in normal use for a reasonable length of time, having regard to their price, the terms of the contract and the conditions of their use." (2)

However, programmed obsolescence seems to bring the question of durability to another level which goes beyond the jurisdictions of consumer law and its policy objective of informed choice and of commercial law. By being indissociable from obsolescence, the production of waste becomes a matter of environmental law and brings to the fore social concerns. Until obsolescence became associated with environmental concerns, the law did not develop the antibodies for a phenomenon it generally perceived as legal. In an effort to map the movements of ideas, we noticed that the topic of programmed obsolescence moved from the discreet sphere of private law, where it remained largely unnoticed, to the realm of public law. Signs of this shift appeared in other fields first. The topic of programmed obsolescence is covered in managerial economics and marketing. (3) It has also made some headway in engineering and design schools to address sustainability issues at the design and production stages of manufacturing. (4) This renewed interest is due, as already noted, to the social and environmental concerns raised by the volume of electronic waste as a result of the accelerated life cycle of products and limited recycling capacity. France's recent reform is on point. It pioneered the movement against programmed obsolescence in 2015 by enacting the Loi relative a la transition energetique pour la croissance verte, (5) which criminalizes "techniques by which a manufacturer aims to deliberately reduce the life of a product to increase the replacement rate". (6) Quebec too followed suit. Inspired by France's initiative, it tabled its Bill 197, entitled An Act to amend the Consumer Protection Act to Fight Planned Obsolescence and Assert the Right to Repair Goods. (7) Similar initiatives mushroomed elsewhere. But nowhere has the very phenomenon of programmed obsolescence been seriously studied. Its very existence has been largely presumed. There are a plethora of data and statistics with respect to the durability of various classes of products. Consumers' literature and social media fuel the suspicion that the premature death of objects is part of a greater industrial plan or conspiracy. We remain skeptical. Legal documentation contains very little evidence of the engineered practice of obsolescence forcing the acquisition of a replacement product offered by the same maker. Is programmed obsolescence a specific and provable practice to be regulated or is it a vague, cathartic expression which diffuses our ambiguous sentiments about consumption and capitalism?

This article is an attempt to understand the grammar of obsolescence: how the word came into being and what narratives have carried it over to the present day. The exercise is to a great extent historical and epistemological. It questions the inherent conditions of modern economy. In fact, we suspect obsolescence might have been a natural companion to the market economy before it acquired a negative ring. In theory, the market owes its dynamism to the large volume of transactions explaining why the replacement rate of goods is taken as a positive indicator. After all, the creative destruction process implies a constant substitution of solutions and products for the benefit of all. (8) The modern views on innovation suggests that obsolescence is consubstantial to technological progress. Obsolescence, in the evolutionary approach of modern economy, is the natural consequence of novelty and improvement. Yet, in recent years, it has caught the eye of the regulator and lawmakers. Programmed obsolescence invites us to research the reasons why manufacturers would jeopardize the goodwill built in their brands by sabotaging their own products or rendering them purposely less effective.

Thus, our journey begins at the turn of the 20th century in the United States with an original idea, that of "planned obsolescence" (I). The name of Bernard London is indissociable to an expression of which he is regarded as the author. Any proper research on the origin of obsolescence irremediably starts with him. In 1932, he published his work Ending the Depression Through Planned Obsolescence (9). His concept of planned obsolescence consists in assigning a legal term on the use of products in order to force their replacement, a solution to increase production and employment. London's proposal was an institutional response to overproduction and stalled consumption. A point of interest already emerges: the idea of planned obsolescence developed in London's work has little to do with programmed obsolescence as it is understood nowadays. Yet, the two expressions are used interchangeably. Our inquiry into the evolution of the meaning of obsolescence compels us, however, to distinguish London's planned obsolescence from today's programmed obsolescence. The former is a theoretical policy plan designed to accelerate the retirement of goods under state supervision to boost domestic economy. The latter refers to actual strategies put in place by manufacturers, to the same end, but for their own benefit. This clarification, which is perhaps the first contribution of this article, brings to the fore the first movement of a dialectic between the two variations of obsolescence. They are related, but distinct. This text, therefore, maintains...

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