Chapter 4: Planned obsolescence achieved through restrictions in the aftermarkets
| Autor | Camilo Pabón Almanza |
| Cargo del Autor | Lecturer of Consumer Law and Competition Law at Universidad Externado de Colombia and Attorney at Law. |
| Páginas | 151-184 |
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Chapter 4
planned obsolesCenCe aChieved through
restriCtions in the aftermarkets
camIlo paBóN almaNza
INdex: I. Consumers cannot anticipate the lifetime of each
product. 1. The lifetime of a product depends on the operation
of two complementary markets. 2. Information asymmetries
- Eastman Kodak. 3. Exploitation of the information asymme-
tries. II. Governmental intervention to increase the lifetime of
products. 4. Cases in which intervention was not necessary
-Keurig 2.0. 5. If the Government intervenes. 5.1 Justification
for any interference in the market. 5.2 Direct intervention from
the Government. 5.3 Promotion of competition in the service
and repair market. 5.3.1 Lexmark v. Static Control. 5.3.2 Right
to Repair Act. 5.4 Changing incentives. III. Conclusion.
aBStract: In absence of a specific regulation that guaran-
tees a minimum lifetime of a product, consumers assume
that risk in their purchases. As it was recognized in Eastman
Kodak, due to the existence of information asymmetries and
transaction costs, consumers are not able to assess the lifetime
of the good, nor the costs and frequency of the service and
repair. Manufacturers can take advantage of this information
asymmetry (i) to intentionally design goods that have a short
lifetime, and (ii) to limit the possibility to repair the product,
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either by fixing high costs of repair and maintenance servi-
ces, or by limiting the existence of spare parts and qualified
personnel. This strategy has been called “technical-objective
planned obsolescence”.
Of course, in some cases this strategy reflects the legitimate
intention that only original spare parts and trained person-
nel are used, as means to extend the lifetime of the product.
Albeit, in other cases, it is used as a mean to monopolize the
alternatives through which the main product could be repaired
and consequently raise the cost of prolonging the life of the
good, inducing the consumer to buy a new product instead
of repairing the old one. Is it desirable that the Government
intervene to extend the lifetime of all products? If so, which
alternatives does the Government have to achieve a larger
lifetime of goods, without affecting the normal operation of
the free market?
This article addresses these two questions, citing cases in
which the manufacturer has deliberately affected the service
life of a product and the market has contested, and other ca-
ses in which the legislature and the courts have intervened to
overcome the objective-technical obsolescence.
Keywords: Planned Obsolescence, Government Intervention;
Promotion of Competition; Information Asymmetry; After-
markets.
I. coNSumerS caNNot aNtIcIpate the lIfetIme
of each product
Each society takes a decision on which economic model
to adopt, in order to achieve the production of so many
goods as it is socially desirable and at a competitive price.
Those societies who have devoted themselves to a free-
market economy assume “that free economic competition
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best promotes the interests of consumers and the efficient
operation of the markets”1.
Therefore, the decisions of which goods produce, how
much to produce and with what specific qualities (inclu-
ding lifetime) are decisions that are taken in the market, as
a consequence of the interaction between producers and
consumers, and not decisions made by the Government2.
In this context, it is valid to affirm that there is no gene-
ral obligation emanating from the Constitution, nor from
the law, (i) that impose that all goods that are placed on
the market have a quasi-infinite duration, (ii) nor that the
products should have a lifetime equivalent to the buyers’
life. On the contrary, freedom of enterprise implies that
everyone can produce goods according to its own prefe-
rences and convenience, without the intervention of other
individuals, or from the State3.
1. The lifetime of a product depends on the operation
of two complementary markets
The first aspect that is relevant for the purposes of this do-
cument, is the fact that the lifetime of a product depends (i)
M.P. Jose Gregorio Hernández, C-524 of 1995 M.P. Carlos Gaviria Diaz; C-535
of 1997 M.P. Eduardo Cifuentes Muñoz. h. Council of State of Colombia M.P.
Ligia López Diaz. Bogotá D.C., twenty-four (24) of July two thousand three
(2003) filing number: 25000-23-24-000-1999-00481-01(13619). twenty-eight
(28) of January of two thousand ten (2010). Filing number: 25000-23-24-000-
2001-00364-01.
2 Constitutional Court. Judgment C-830 of 2010 M.P. Luis Ernesto Vargas Silva.
Vargas Silva. Judgment C-830 of 2010 M.P. Luis Ernesto Vargas Silva.
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