[co-author: McKayla Riter]*

As predicted in our previous articles, the “right to repair” movement continues to garner support as more state governments consider legislating in this area. We previously reported that in 2021, 27 states had pending legislation addressing “right to repair” laws (discussed in our previous article here). Already this year, 33 states have considered some form of “right to repair” legislation.[1] The latest of these legislative efforts comes out of California, where on September 13, the Senate unanimously passed SB-244, the Right to Repair Act.[2] Once Governor Newsom signs the bill into law, California will join Colorado, New York, and Minnesota as the fourth state to enact the “right to repair” legislation.[3] We expect more states to follow.

California’s Right to Repair Act requires electronics manufacturers to make repair guides and functional parts and tools available for at least three years from the date of manufacture for products with a wholesale price between $50 and $99.99.[4] For products with a wholesale price of $100 or more, these guides and tools must remain available for at least seven years.[5] If, however, a manufacturer provides readily available replacement electronics or appliances with a quality equivalent or better than the original, the act’s provisions do not apply.[6] The bill will supplement existing law, which already places similar requirements on electronics manufacturers that make express warranties for electronic or appliance products.[7]

Sponsors of SB-244 tout it as “a common sense bill that will help small repair shops, give choice to consumers, and protect the environment.”[8] Notably, a number of key industry stakeholders, including Apple, expressed their support for the bill, finding that it “includes requirements that protect individual users’ safety and security, as well as product manufacturers’ intellectual property.”[9] At the same time, 19 industry players registered their opposition to the bill, citing concerns that it does not adequately protect consumer data, stifles innovation by impinging on intellectual property rights, and fails to address the growing number of sustainability advancements made by manufacturers.[10] Many of these concerns echo those raised in response to President Biden’s earlier executive order, which compelled the Federal Trade Commission (FTC) to draft “right to repair” rules (discussed in our previous article here).

Why It Matters

Regardless of whether the Right to Repair Act did, in fact, strike the right balance, manufacturers and businesses should take notice and prepare to comply or face serious fines. The law provides that cities, counties, and the state may bring civil actions to enforce the act’s requirements.[11] Penalties for noncompliance are high: $1,000 per day for the first violation, $2,000 day for the second, and $5,000 a day for the third and all subsequent violations.[12] We expect that state attorneys general, who have already shown willingness to enforce the “right to repair” using existing consumer protection and antitrust laws (discussed in our previous article here), will be swift to bring enforcement actions under this new source of authority.

California’s bill is only one component of the growing “right to repair” movement. Manufacturers will likely face increased legislative and regulatory scrutiny on both the federal and state levels as the law continues developing in this area. Troutman Pepper continues to monitor changes to this complex legal landscape. Our team is committed to breaking down these complicated legal issues and helping manufacturers and businesses confidently navigate the dynamic regulatory environment.

[1] See https://www.ncsl.org/technology-and-communication/right-to-repair-2023-legislation.

[2] See https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202320240SB244.

[3] See https://www.ncsl.org/technology-and-communication/right-to-repair-2023-legislation.

[4] See https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202320240SB244.

[5] Id.

[6] Id.

[7] See https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CIV&division=3.&title=1.7.&part=4.&chapter=1.&article=3.

[8] See https://pirg.org/california/media-center/california-legislature-passes-right-to-repair-bill/.

[9] See https://www.cnbc.com/2023/08/24/apple-backs-california-right-to-repair-bill-in-major-policy-shift.html.

[10] See https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=202320240SB244.

[11] See https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202320240SB244.

[12] Id.

*Associate