New York Law Will Regulate Consumer Device Repair Options: What the Digital Fair Repair Act Means for the Consumer Electronics Industry | Wiley Rein LLP

As 2022 drew to a close, New York Governor Kathy Hochul signed the Digital Fair Repair Act (the Act), the nation’s first state law related to what advocates call a “right to repair” that broadly applies to consumer electronics. The final version of the Act, signed on December 29, includes new amendments to the version approved by the state legislature over the summer. The Act generally requires original equipment manufacturers of certain electronic devices to make certain parts, tools, and documentation available to independent repair providers and owners of digital electronic equipment, on “fair and reasonable” terms, with the goal of expanding consumer repair options. Companies will need to consider the practical impacts as the law goes into effect for devices manufactured after July 1, 2023.

The Digital Fair Repair Act Requires That Digital Electronic Equipment Be Made Available on “Fair and Reasonable Terms.” As noted above, the Act requires original equipment manufacturers to make parts, tools, and documentation available to independent repair providers and owners of digital electronic equipment on fair and reasonable terms. The Act defines “digital electronic equipment” as “any hardware product manufactured for the first time, and first sold or used in New York on or after” July 1, 2023 “that depends for its functioning, in whole or in part, on digital electronics embedded in or attached to the product for which the original equipment manufacturer makes available tools, parts, and documentation either through authorized repair providers, its own employees, or any authorized third-party providers.” “Fair and reasonable terms” is defined in the legislation as:

  • With respect to parts, that such parts are made available by the manufacturer, either directly or indirectly through an authorized repair provider or authorized third-party provider, to independent repair providers and owners at reasonable costs and terms;
  • With respect to tools, that such tools are made available at no charge and without requiring authorization for use or operation of such tool, or imposing impediments to access or use of the tool, except for reasonable costs associated with procuring and preparing the tools in physical form; and
  • With respect to documentation required for repair, that such documentation is made available by the manufacturer at no charge, except for reasonable costs associated with providing documentation in printed form.

The Legislation Does Not Cover Certain Categories of Equipment. While broad, the Act does exempt certain kinds of devices and equipment. Specifically, the legislation does not apply to:

  • Public safety equipment for the use of emergency response or prevention purposes by an emergency services organization;
  • Home appliances such as refrigerators, ovens, microwaves, air conditioning, and heating units;
  • Motor vehicles;
  • Medical devices;
  • Off-road equipment such as farm and utility equipment, industrial equipment, and utility equipment;
  • Commercial and industrial electronic equipment, including any accompanying tools, technology, attachments, accessories, components and repair parts;
  • Products that are sold under business-to-business or business-to-government contracts and not offered for sale at retail; and
  • Electronic bicycle manufacturers, distributors, importers, retailers or dealers.

Notwithstanding the exemption, many consumer electronic devices remain covered and subject to the Act’s requirements.

Enforcement and Next Steps. The Act will become effective one year after being passed into law, and as noted, above, it applies to devices first sold or used in New York after July 1, 2023. Once effective, the Act gives the New York Attorney General the authority to bring actions against manufacturers or authorized service providers to enjoin violations of the legislation and to obtain restitution, though the Attorney General is required to give notice and an opportunity to respond in writing before proceeding.

New York’s upcoming compliance deadline comes against the backdrop of other initiatives on “right to repair” that would impose additional obligations if successful. On the federal level, President Biden‘s Executive Order on Protecting the Economy encouraged the Federal Trade Commission (FTC) to be active on “right to repair,” and the FTC unanimously voted to release a Policy Statement noting that the FTC would devote more enforcement resources on repair-related matters (we summarized the Policy Statement here). The FTC is also requesting comment on a proposed change to its Energy Labeling Rule that would require companies to provide repair instructions for covered products. On the state level, states have considered legislative proposals similar to New York’s Act in recent years and will continue to do so.

Some aspects of New York’s Act, including provisions that were included in the late 2022 amendments, do provide manufacturers additional leeway in compliance. For example, manufacturers are not required to provide passwords or security codes for repair, not required to divulge trade secrets, and not required to offer batteries separately if there are safety concerns with installation, though they still must provide replacement components that include batteries. Additionally, the Act exempts original equipment manufacturers or authorized repair providers for damage or injuries caused to any digital electronic equipment, person, or property which occurs as a result of repair performed by an independent repair provider or owner.

With that said, manufacturers of covered products still must plan for a change in how parts, tools, and documents are made available in New York, including assessing how to best protect safety and security when complex electronic devices are repaired by individuals that may not have been trained in the same way as authorized repair providers. With the New York Act applying to devices that will be manufactured after July 1, 2023, manufacturers and others involved in device repair will need to plan now to assess whether current practices meet the Act’s requirements and whether additional changes are necessary.

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