Brazil: Products Programmed To Die - Effects Of Programmed Obsolescence

It is known the natural wear of a product and the need to replace it with time is normal.

In the past, a product used to take much longer to be replaced with another of the same kind than it does nowadays. Products were then made to last longer. Quality and durability was a matter of concern at that time.

Today, products are more and more planned and made to have a shorter lifespan.

This practice is called 'programmed obsolescence.'

What does it mean, specifically? Programmed or planned obsolescence means to deliberately and voluntarily reduce a product's lifespan to stimulate the consumer to buy a new one. Further to the programmed, there is also the functional1 and the psychological obsolescence2.

This practice came around as a way to go through the crash of 1929. In the crisis, manufacturers of durable goods realized products with a too extensive life cycle was unfavorable for economy because it pushed down sales. They had too many products in stock and the jobless were countless. The manufacturers then decided to voluntarily and strategically reduce the life cycle of their goods to increase sales.

The boost in sales made employment opportunities rise specially in the development, planning, production and marketing fields.

Because of breakthroughs in technology, programmed obsolescence not only increased sales but it also made companies start making goods more versatile, functional, practical and innovative. On the other hand, this practice also made waste generation rise disorderly.

Although much criticized, programmed obsolescence is a means to keep economy buoyant, as many industries in the market grow and offer more jobs.

On the other hand, the significant raise in the generation of solid waste is undeniable and violates the driving principles of Environmental Law, specially when it comes to a sustainable development.

For these and other reasons, on August 02, 2010, the National Policy for Solid Waste was implemented and Law 12.305 provided for "the principles, goals and means, further to the guidelines for an integrated handling and the management of solid waste, including hazardous waste, under the liability of waste generators and the government and pursuant to applicable economic measures". (art. 1)

The fundamental goal of the National Policy is to curb generation of solid waste and, consequently, make manufacturers legally liable for making durable goods of quality and endurable and for creating reverse logistics systems.

Further to the disordered waste generation, another disapproving comment of the programmed obsolescence concerns the protection of consumer's rights. Many believe programmed obsolescence to be illegal, because it breaches the basic principles under article 43 of the Consumer Code, specially the principles establishing transparency of information and durability of the goods.

In addition, some critics believe the programmed obsolescence breaches the provision in article 32, sole paragraph, and article 37, § 1 and 2, of the Consumer Code, which stipulate the need to offer components and spare parts and approach deceptive or abusive advertising.

The case law on the subject is still scarce. In a report to an appellate decision on Special Appeal nº 984.106/SC, reporting Justice Luis Felipe Salomão gives a definition of it as follows: "artificial reduction of the durability of products or the life cycles of their components, so a premature new purchase is forced."

In approaching this theme, the appellate decision mentions some examples of programmed obsolescence: (i) shortened lifespan of electronic components (Example: cell phone batteries) and their strategic demand-pull inflation that makes a new purchase more advantageous; (ii) old and new components are incompatible, which imposes a full software update of the product; (iii) a new series is released, and the inputs or spare parts for the previous series are no longer manufactured.

In terms of laws on this subject, progress is also little. There are some bills4 aiming at making mandatory the inclusion of a disclaimer with clear, precise, visible information in Portuguese of the lifespan expected of the durable goods a company offers in the market, and also at demanding a standardization of an interface for cell phone battery chargers. It is noticeable the propositions are specific and do not by far aim at settling the matter.

On the other hand, there is one interesting proposition Justice Luis Felipe Salomão made which could, if taken to effect, break the deadlock of programmed obsolescence. His proposition entails making significant changes in the Consumer Code.

The goal is to make the Consumer Code demand suppliers to put a disclaimer on products on their lifespan and set a punishment for those engaging in programmed obsolescence without harming or restricting technological progress.

Accordingly, considering the breakthroughs in technology and the buoyancy of the economy, we find it essential the creation of public policies that effectively guarantee a balanced environment by changing in an organized and significant way the current consumption pattern.

Prohibition of obsolescence could undoubtedly mean a retrograde step. The greatest challenge is to make both companies and consumers aware that in a world whose resources are in fact limited and no adequate solution has been found to tackle the solid waste problem, even programmed obsolescence itself will eventually have a time to die.

Footnotes

1  the conditions (a mechanical failure or limitation) of a product makes it difficult for a consumer to continue using it, thus making consumer buy a new one.

2  Even when the product is in conditions to be used, the consumer decides to buy a new one and discard the old one (Example: Smartphones).

3  "the National Policy for Consumer Relations aims at fulfilling the needs of consumers, respect their dignity, health and safety, protect their economic interests, improve their life quality, and provide for transparency and harmony in consumer relations, subject to the following principles:... item II - governmental action to effectively protect the consumer: ...d) by guaranteeing the products and services in an a adequate level of quality, safety, durability and performance."

4  Bill 5367/2013 and Bill 32/2015.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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