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?