Consumerist Waste: Looking Beyond Repair

Roy Shapira* April, 2024

The Right to Repair: Reclaiming the Things We Own. By Aaron Perzanowski. Cambridge: Cambridge University Press. 2022. Pp. vii, 357. $19.95.

Introduction

We live in a throwaway society. The average American uses her smartphone for only two years before purchasing a new one (p. 19) and wears a new clothing item seven times before dumping it.¹ Such runaway consumerism is costly for consumers themselves, as they frantically spend on new products and constantly feel regret and alienation because the things they possess are never enough. Even more troublingly, runaway consumerism destroys our environment. In the United States alone, consumers dispose of 150 million smartphones annually (p. 28). Producing a single smartphone requires extracting seventy-five pounds of ore from the earth, and dumping it creates highly toxic waste (pp. 28–30). The stakes of understanding what drives the current levels of consumerist waste and how to reduce them could therefore not be higher.

Activists and policymakers have responded by fighting for consumers’ right to repair. The idea is that today’s throwaway consumerism is very much a product of sellers’ concerted efforts to sell products with shorter lifespans, and limit consumers’ ability to extend lifespans by erecting barriers to repair. Increasing the availability of repair will help consumers save money and lessen the massive environmental burden, or so the argument goes. Over the past decade, a global right-to-repair movement has gained ground, and it now enjoys broad political support and regularly wins legislative battles in the United States and the E.U.

Yet, until recently, this movement has received surprisingly little attention in American legal literature.² This is no longer the case. Aaron Perzanowski’s³ recent book, The Right to Repair: Reclaiming the Things We Own, provides a timely and insightful account of why society desperately needs a right to repair, who is stopping us from having it, and what we can do to reclaim it. Perzanowski catalogues the benefits of repair, emphasizing not just the money that consumers can save by lengthening their products’ lifespans but also the emotional and social benefits that come from regaining control over the things that we own. He fleshes out the various strategies that sellers employ to stifle repair, from glued-in batteries and incompatible screws, to weaponizing the law by claiming service manuals as trade secrets or using copyright to limit access to the software needed to diagnose and fix problems. Perzanowski then proposes concrete policy measures to remove barriers to repair, calling for coordinated legal reform across fields such as intellectual property, antitrust, and consumer protection law. In all, Perzanowski managed to write the book on repair: a comprehensive and accessible account that would interest anyone who cares about environmental sustainability and consumer protection.

But although fighting for a right to repair is laudable and politically palatable, it is unlikely to achieve the end goal—reversing the trend of mounting consumerist waste—on its own. Consumerist waste is a multifaceted problem. It emanates not just from functional product obsolescence, which repair can help solve, but also from psychological (or “perceived”) product obsolescence, which repair cannot solve. That is, consumers often throw away old smartphones not because they stopped functioning and repair is too costly, but simply because they want to own the newest model. In fact, evidence suggests that consumers proactively endanger their old iPhones when a new model comes out, hoping for fortuitous “accidental” damage to justify (to themselves) spending on the new version.⁴ A key question is therefore not whether consumers have a right to repair but rather whether consumers want to repair.

To properly calibrate policy measures to reduce consumerist waste, we need to develop a better understanding of what consumers want. What drives consumers’ purchasing and disposing decisions? The availability of repair is but one factor in these decisions, and it is often not the most important one.⁵ Consumer behavior is also heavily influenced by sociocultural considerations, which, in turn, are a function of advertising, fashion trends, and peer pressure.⁶ Consumers decide what to purchase based not just on the price and features of the product, but also on what others around them buy and how their own purchases affect what others think of them. To illustrate, studies of dating sites reveal that owners of outdated smartphones are 56 percent less likely to go on a date, and that women on these sites are 92 percent more likely to judge a potential match for using an older phone (p. 108). Sad, but true. Giving consumers a legal right to repair old smartphones may not matter if consumers have such strong sociocultural reasons to purchase new ones instead.

This Review uses Perzanowski’s masterful treatment of repair as a springboard to discuss the bigger picture of consumerist waste and how to reduce it, making three sets of original contributions. First, this Review clarifies the various drivers of wasteful consumerism, with special emphasis on the status concerns that nudge consumers to purchase new items even when the products they own function perfectly.

Still, not all “positional consumption”⁷ is wasteful from a societal perspective. This is where the Review’s second set of contributions comes in—distinguishing between problematic and not-so-problematic consumption practices. Conventional wisdom treats all positional consumption as a rat race after status, with deadweight costs.⁸ But some types of positional consumption produce valuable goods. After all, in the not-so-distant past luxury brands separated themselves from the pack by advertising their durability.⁹ To quote one famous slogan: “You never actually own a Patek Phillipe. You merely look after it for the next generation.”¹⁰ Conspicuous consumption of durable goods is not a burning societal problem. The real problem starts when consumers compete for status by consuming disposable goods. This Review draws on theoretical and empirical insights from the signaling and marketing literatures to examine why consumers shifted from signaling via durability to signaling via repeat purchases.

The Review’s final set of contributions involves analyzing the desirability of policy proposals to reduce consumerist waste. Existing proposals focus on more familiar and politically palatable tools, such as requiring disclosure at the purchasing point and assuring repair after purchase. These tools may be necessary, but they are hardly sufficient. They do not attack all causes of product obsolescence and put too much onus on individual consumers. This Review builds on the theoretical framework developed here and the accumulated, on-the-ground experience in the E.U. to offer novel solutions and tweaks to existing proposals. Take, for example, durability disclosure. The European experiment suggests that simply providing consumers with information on the expected lifespan of products does not change consumer behavior.¹¹ To affect real change in consumer behavior, policymakers need to employ specific design techniques, such as “reversing the default” (instead of highlighting products that are durable, policymakers flag products that are not). They should also frame the issue of durability not in terms of benefits to others (“ethical consumption”) or benefits to consumers, but rather in terms of avoiding future losses. The problem is that thicker¹² versions of durability labeling requirements will likely bring serious political and legal hurdles like First Amendment challenges.

This Review also suggests more feasible, indirect interventions that can leverage sellers’ reputational concerns and buyers’ status concerns in ways that favor durability over newness. One conduit to affect sellers’ reputations is Environmental, Social, and Governance (ESG) ratings. Another is the discovery process in litigation, which can extract and make public information about wasteful business practices. Here, the main takeaway is that the law, as currently construed, locks in the wasteful status quo. For example, antitrust regulators investigate sellers who try to respond to public criticism by reducing frantic cycles of production.¹³ And courts enforce gag clauses and mandatory arbitration provisions that prevent information about planned obsolescence practices from being exposed in public.¹⁴ Policymakers should be aware of these dynamics and stop automatically applying the law in ways that stifle bottom-up pressures to reduce waste.

The Review proceeds in three parts. Part I synthesizes Perzanowski’s contributions to shed light on one important aspect of throwaway consumerism: the inaccessibility of repair. Part II spotlights another important driver of throwaway consumerism: positional consumption. Part III evaluates a host of policy tools that could attack all aspects of product obsolescence. A short Conclusion sketches the way forward for scholarship in this area.

I. The Case for Repair

A. Benefits of Repair

Having a robust right to repair can save consumers billions (pp. 21–22). Instead of frequently buying new products, consumers could fix their existing ones at a lower cost. A robust market for repair also fosters more dynamic trading on secondary markets: A product that does not perform well cannot circulate, whereas an easily reparable product is more likely to change hands (pp. 17–18). In turn, dynamic markets for used products lower the price of new products.

Beyond these obvious economic benefits, repair also yields less intuitive “social benefits” (pp. 41–42). Repair allows consumers to regain control over the things that they own, boosting their sense of self-sufficiency and autonomy. Empowering consumers through repair is especially important in today’s world, where consumers’ lives increasingly depend on the smooth functioning of the electronic devices that they own.¹⁵ If I cannot go a day without my smartphone, my inability to diagnose and fix its problems could make me feel helpless and, thus, eager to replace it whenever a slight problem arises.

At the societal level, independent and third-party repair promotes a wider distribution of knowledge and skills, which in turn facilitates innovation (pp. 44–46). Repair leads to better understandings of how certain technologies work, which in turn can lead to improvement. For example, the Wright Brothers ran a bicycle repair shop where they honed some of the knowledge and skills that allowed them to later invent the motorized airplane. This point bears emphasizing, as it goes against a dominant narrative in today’s culture. Today’s culture conditions us to think that introducing new technological devices represents progress, and keeping and repairing old devices resists progress (p. 16). But this newness-at-all-cost mindset incentivizes firms to constantly churn out new lines of products with no real technological breakthroughs, investing more of their resources in aesthetic tweaking and marketing (p. 26). Increasing the availability of repair could incentivize firms to invest in genuine innovation and not just superficial product differentiation (p. 165).

Finally, and in my mind most importantly, repair comes with environmental benefits. Effective repair can prolong the product life cycle, thereby reducing the number of “old” products that consumers throw away and slowing the frantic pace of new products that manufacturers churn out.¹⁶ This is especially important with electronic devices, whose production necessitates extracting tons of raw materials from the earth and whose dumping often leads to highly toxic metals finding their way into our air and water. Indeed, discarded consumer electronics accounted for almost fifty-four million metric tons of e-waste in 2019, and that number has only grown since (pp. 28, 30).

Device makers respond to backlash over these untenable numbers by touting their recycling programs. But recycling is a limited solution. Apple’s highly touted recycling efforts, for instance, processed e-waste that amounted to less than 0.1 percent of the amount of waste that Apple produced (p. 38). In fact, overstating the benefits of recycling may aggravate the problem of consumerist waste: It offers consumers an easy way to absolve themselves of guilt without reducing their wasteful consumption, and it offers companies a cheap way to boost their reputations without meaningfully reducing wasteful production. The upshot is clear: Recycling cannot replace the benefits of repair.¹⁷

But if the benefits of repair are clear, why is repair not more prevalent? How come we do not observe device makers competing over repairability and consumers demanding it more vigorously? Perzanowski suggests that many of the answers lie in the litany of strategies that manufacturers employ to stifle repair.

B. Barriers to Repair

Products are not born repairable. Manufacturers must invest in designing products for repairability, and this investment often requires a tradeoff between repairability and other attributes that are more important to consumer purchasing decisions, such as size and aesthetics (p. 72). The odds are therefore stacked against repairability, even if manufacturers want to maximize repair. In reality, manufacturers often want to shorten product lifespans, because quicker repeat purchases are good for the company’s bottom line (p. 12). As a result, manufacturers pull numerous levers to limit repair. Perzanowski usefully groups these levers into four categories: product design, market incentives, social norms, and legal rights.

First, product design choices can make a device unrepairable on arrival. A car hood is an example of a product design that makes it easy for users to access and fix the internal components of the product. AirPods are an example of the opposite. AirPods excel on looks and size, but their components are glued together, and users cannot effectively open them (p. 82). As a result, when AirPod users believe the battery has begun to die, they often rush to purchase new ones (pp. 5–6, 82, 165).

Beyond physical design choices, the fact that the functionality of more and more products today depends on an embedded software code also limits repair. Sellers can use their control of said software to exert power over products in the buyers’ possession (pp. 86–87). John Deere, for example, installs in its new tractors a software code that is needed to reset and repair the tractor. As a result, farmers must repair their tractors through John Deere (p. 9). Such problems are even more pronounced with “smart” products, whose functionality rests not with the physical device that consumers possess but, rather, with remote servers (pp. 7, 92).

A second way that firms limit repair is by altering the simple cost–benefit calculus of repairing versus repurchasing (pp. 93–103). Sellers can reduce the price to replace a product, such as by offering attractive trade-in programs. These programs come with the added advantage of allowing consumers to throw away functioning products while still feeling environmentally friendly (p. 103). Sellers can also increase the price of repair by raising the price of replacement parts or outrightly refusing to fix old devices. When faced with public backlash against such blatant anti-repair strategies, sellers shift to subtler ones. Apple, for example, responded to criticism by unveiling its Independent Repair Program in 2019 with great fanfare. Yet, in reality, the program had minimal impact because Apple conditioned repair by independent providers on unreasonable, prohibitive demands, such as unannounced audits or bans on the stocking and uses of certain parts (p. 98). Apple also entered into an agreement with Amazon to ban third-party sales of Apple products on Amazon’s platform (p. 101).

Third, sellers can persuade buyers that repurchasing is simply cooler than repairing. The social norms around whether to replace or repair old products are not written in stone; they are the product of a well-oiled advertising machine.¹⁸ A good example is the market for used baby car seats. Most parents (raising my hand here) fall for the narrative that child safety seats have an expiration date. On-the-ground evidence suggests that old seats are just as safe as new ones. But sellers nudge parents into a “you would not want to save on getting your newborn a newer, safer seat, would you?” mode of thinking (pp. 105–06). Another example of this persuasion is the cult that developed around Apple’s new product announcements, where the newness of the product itself—even when any actual technological breakthrough is limited—is “covered with breathless anticipation by the press and public alike” (p. 107).

Finally, often the most powerful tool that sellers use to limit repair is the law, especially an arsenal of intellectual property claims (p. 110). Sellers invoke patents and trademarks to limit the availability of spare parts (pp. 124–32). Sellers claim information needed to repair, such as service manuals or diagnostic information, as trade secrets (pp. 159–64). And sellers use copyright to limit access to software necessary to diagnose and repair (pp. 119–24).

But the fact that many of these barriers to repair emanate from bad applications of law is also good news: A better legal design can cure the problem. This is where Perzanowski’s third contribution comes in.

C. Bolstering Repair

To achieve a meaningful right to repair, Perzanowski proposes reform in three interrelated legal fields: intellectual property, antitrust, and consumer protection. First, and most straightforwardly, policymakers should exclude the intellectual property claims that producers currently exploit to limit repair (p. 227). When courts and regulators apply intellectual property law, they should think about what types of progress and innovation the law incentivizes. Currently, producers marshal intellectual property claims to protect superficial product differentiation. Excluding such claims to ensure repair is in line with the internal logic of intellectual property laws.¹⁹

Second, policymakers should aggressively apply antitrust laws against firms that exploit their market power to undermine competition in the market for repair, such as firms that force consumers to rely on authorized providers (p. 227). There are promising signs of life in this area. For example, in July 2022, after the publication of Perzanowski’s book, the FTC announced several actions enforcing the ban on “tying” by going after warranty provisions that void the warranty if a customer uses third-party parts or independent repairers.²⁰

By contrast, the prospect of using consumer law to fight for repair seems less promising. Courts do not normally consider product obsolescence to be a matter of intentional misrepresentation or coercion.²¹ Still, Perzanowski insists that courts should construe consumer law to protect independent and third-party repair.²² To make his case, he surveyed more than 800 American consumers, trying to gauge how much consumers value repair. The answer: greatly. Sixty percent of respondents strongly agreed that consumers have a right to repair (p. 201 fig.1). Surveys of European consumers yield similar results (p. 205). From this, Perzanowski deduces that when sellers limit repairability, they cause a substantial injury to consumers. Thus, courts should consider anti-repair practices to be deceptive and unfair and actionable under consumer protection law (pp. 207–09).

Perzanowski’s attempt to open the black box of consumer behavior with survey-based evidence is commendable, but it clashes with the “attitude–behavior” gap. It is well-documented that consumers say one thing in surveys but practice another.²³ To illustrate, one study showed that, while 40 percent of consumers report in surveys that they are willing to pay extra for greener products, only 4 percent actually do so.²⁴ Similar examples abound.²⁵ Marketing scholars have identified several causes of this phenomenon. Most basically, consumers are aware that manufacturers operate under budgetary, design, and manufacturing constraints. Accordingly, when manufacturers emphasize one dimension of the product, consumers may infer that the product will be relatively inferior along other dimensions.²⁶ Product repairability may appeal to consumers in a vacuum (“sure, I want a more repairable product, why not?”). But in reality, unlike in surveys, consumers never assess repairability in a vacuum. The saliency of repairability may affect consumers’ judgments about other product attributes, and vice versa.²⁷ Consumers may perceive a less repairable product as slicker, trendier, or better (think AirPods).

The upshot is clear: We cannot assume, based on what consumers say in surveys, that if we give them a right to repair they will use it and reduce consumerist waste.²⁸ Scholars who wish to understand consumerist waste should instead delve into on-the-ground evidence of consumer behavior and explore other reasons why people purchase or throw away products beyond the availability of repair.

II. Waste Beyond Repair

Why do consumers decide to throw away an old product and buy a new one? Sometimes the decision is forced: The old product stops functioning properly, and repairing it is too costly. Other times, the decision is voluntary: The old car or iPhone still functions, yet, the consumer desires a newer model. To better understand the causes of these voluntary throwaway decisions, Section A highlights the two major forces in today’s consumer economy—namely, planned obsolescence and positional consumption. Section B then explains what types of voluntary obsolescence are especially worrisome and how to tackle them.

A. Causes

“Planned obsolescence” refers to strategies that firms employ to boost their revenues by artificially shortening their products’ lifespans, thereby generating more repeat sales.²⁹ Some strategies make the product objectively unusable, such as a printer that refuses to print further.³⁰ Other strategies make the product subjectively unfashionable.³¹ To illustrate, contrast the two classic examples of lightbulbs and cars. In the early twentieth century, the Phoebus Cartel of international lightbulb manufacturers colluded to artificially reduce lightbulbs’ lifetimes to one thousand hours (p. 60). Around the same time, General Motors (GM) pioneered the now-familiar model year changes in its vehicles to win its competition with Ford. GM tried to entice consumers to splurge on the latest model—even when it was not more technologically advanced—to satisfy themselves and impress others in their social circles (p. 58). Both examples resulted in consumers purchasing new products earlier than necessary. But from the perspective of reducing consumerist waste, the examples present completely different challenges. Functional obsolescence, as in the lightbulb example, is easier to fix, deter, and prevent. Perceived obsolescence, as in the car model example, is harder to tackle and requires opening the black box of consumer psychology.

Delving into consumer psychology necessitates understanding positional consumption. Consumer behavior is a function of not only first-order needs and wants but also sociocultural considerations, such as what we think others will think about us when they observe what we consume.³² Consider, for example, the well-documented practice of signaling by consumption. If I observe John purchase an expensive good that he does not need, I may infer something about John’s existing wealth or ability to procure future resources.³³ We deduce that those who engage in conspicuous behavior “can afford it” and thereby increase our willingness to interact with the big spenders.³⁴

Empirical findings consistent with signaling by consumption are aplenty.³⁵ One study showed that those who wear luxury brand labels are perceived by others as smarter and more attractive, and that others are more willing to follow their instructions and cooperate with them.³⁶ Another study found that driving a new Porsche in public leads to increases in testosterone, whereas driving an old station wagon leads to decreases in testosterone.³⁷

Acknowledging the outsized roles that planned obsolescence (on the supply side) and positional consumption (on the demand side) play is just the first step. The next step is to evaluate their social desirability.

B. Consequences

In the past, scholars and policymakers treated positional consumption as categorically wasteful, both at the individual consumer level (by consuming something not out of necessity) and at the societal level.³⁸ The idea is that me spending more to climb above you on the social ladder will lead only to you spending more, pitting consumers against one another in zero-sum jockeying for status. However, more recent theoretical and empirical work has demonstrated that not all positional consumption is created equal. Certain types are actually good for society.³⁹

To illustrate, let us recast our cars example. Positional consumption of cars tends to circulate rather than squander value. When you replace an old car with a newer one, your old model can find another home, perhaps allowing less affluent citizens to access this good.⁴⁰ Moreover, churning out new models is not necessarily bad for the environment, since newer car models tend to be more durable⁴¹ and more energy-efficient than older ones. And we have yet to mention the boost to the economy and employment that comes from increased production.⁴² Cars thus illustrate how with certain products positional consumption and psychological obsolescence may facilitate innovation and reduce environmental waste.

The upshot for our purposes is twofold. First, those who wish to reduce consumerist waste must switch from making general claims to focusing on the cross-sectional variation, tailoring different solutions to different types of product markets. Two examples that Perzanowski employs throughout the book are John Deere tractors and Apple iPhones. In both cases, sellers stifle independent and third-party repair. Yet if the end goal is to reduce consumerist waste, these two cases could not be further apart.

Tractors do not present a problem of consumerist waste. Smartphones do. Farmers take pride in repairing their old tractors. iPhone buyers take pride in owning the newest model. Farmers do not throw away old tractors. Smartphone users do throw away old smartphones. The problem the tractor industry has is straightforward—John Deere’s monopoly on the market allows them to limit repair. The solution is accordingly straightforward too: antitrust enforcement.

The problem with smartphones is much more complex. In that context, product obsolescence stems from functional (technological reasons to upgrade), planned (iOS updates slowing your processing system), and psychological (improving your chances on that dating site) reasons. Each of these causes calls for a different cure, and some might be incurable.

The equivalent to cell phones is not tractors but clothing. Like Apple, fast-fashion giants run a business model that is based to some extent on exploiting consumers’ positional concerns in ways that create psychological product obsolescence.⁴³ Until the 1990s, the fashion industry had seasons. Then, global retailers started introducing new lines of clothes on a weekly basis.⁴⁴ This, in turn, perpetuated an extremely aggressive cycle of consumption with disastrous results for the environment. The clothes that we increasingly dump account for ninety-two million tons of textile waste annually, with much of this waste coming in the form of petroleum-based synthetic fibers that take centuries to decompose in landfills.⁴⁵

The second upshot is that those who wish to reduce consumerist waste must shift focus from the why to the how of positional consumption. Consumers will always have status and signaling concerns, and chase trendy fashions. The question is whether society can channel these concerns in a way that encourages signaling by consuming durable products, instead of signaling by consuming obsolete products.

Not all conspicuous consumption is wasteful.⁴⁶ For our purposes, the relevant distinction is between signals that externalize costs on others (wasteful with a capital W) and signals that impose costs only on the signaler.⁴⁷ Some types of conspicuous consumption reduce environmental externalities. Patek Phillipe markets its watches with the proposition that, if you buy one now, your grandkids will use it later.⁴⁸ Rolls-Royce and other marquee brands propagate the idea that the product you purchase now will be worth more in the future.⁴⁹ And BMW and other luxury brands tout their durability by offering lifetime free maintenance.⁵⁰ All these purchases are very costly to the individual consumer but lower the environmental burden on future generations. What dictates consumers’ choice between signaling via durable products and signaling via obsolete products? Much of the answer comes down to the “broadcast efficiency” and “multiple messages” aspects of signaling.

“Broadcast efficiency” refers to a signal’s ability to attract audiences.⁵¹ The more visible and salient a signal is, the more it attracts audiences.⁵² With consumer behavior, increasing the visibility of purchasing decisions increases the chances of buying green.⁵³ For instance, research has found that green car owners’ primary reason for purchasing a green car is to make a “statement” to others.⁵⁴ And when consumers purchase food in public, they are more likely to buy expensive organic food.⁵⁵

However, the same visibility concerns tilt the scales against “behaving green.”⁵⁶ After all, purchasing a new product is inherently more visible than repairing old ones. And producers pour resources into making newness particularly salient.⁵⁷ Electronic device makers, in particular, have started applying “fashion thinking” to the design of new devices.⁵⁸ Today, unique coloring and shape schemes for each new device model make it easy for outsiders to observe whether the person sitting across from them at the bar possesses the newest iPhone model.⁵⁹

Empirical studies document a sea change in what types of brands predict high income (making these brands better candidates for signaling-driven consumption).⁶⁰ In the 1990s, owning Grey Poupon mustard was most predictive of high income.⁶¹ In the 2000s, it was Land O’Lakes butter.⁶² By the 2010s, Apple products took the decisive lead.⁶³ The implications for our purposes cannot be overstated. The best way for a consumer to convey her status, wealth, and taste used to be consuming perishable products at home. Now, a consumer’s best bet is to signal via frequently repurchasing conspicuous products that extract tons of materials from the earth and generate tons of toxic waste.⁶⁴

Beyond visibility, another vector pushing toward signaling via newness is the “multiple messages” aspect of signaling.⁶⁵ New purchases convey desirable attributes besides wealth. When you purchase the newest technological gadget, you convey not only that you can afford it but also that you are a cool, early adopter. Given that a breakneck pace of technological change defines today’s world, being perceived as someone who has the taste and savvy to keep pace is especially desirable and valuable.⁶⁶

Sellers proactively exploit these dynamics, running advertising campaigns that make consumers feel as if people will judge them if they do not purchase the newest model.⁶⁷ To be sure, admiring novelty is an inherent human tendency, and people have always vied to set the next fashion trend.⁶⁸ However, the advertising machine artificially shortens the life cycle of such trends, making signaling by frequent repeat purchases the new normal.⁶⁹

What, if anything, can policymakers do to reverse this troubling tendency? Can they reshape broadcast efficiency concerns by increasing the visibility of repair and thrift vis-à-vis buying new?⁷⁰ Admittedly, legal interventions meant to reshape nonlegal forces tend to be ineffective at best.⁷¹ Often, however, all that policymakers need is to become aware that the way they automatically apply existing doctrines blocks positive, bottom-up changes in consumer norms and sellers’ reputations.⁷² The next Part elaborates.

III. Reducing Consumerist Waste: It Takes a Village

Our discussion thus far has taught us that (1) consumerist waste is a critical problem for the nation and the planet; (2) the problem emanates not just from barriers to repair but also from consumers’ hedonic and signaling concerns; (3) as a result, legal intervention is needed; and (4) interventions should attack not just forced (functional) product obsolescence (by boosting the right to repair) but also voluntary (psychological) obsolescence. This Part approaches the not-so-simple task of figuring out how to reduce voluntary obsolescence.

Existing policy proposals focus on familiar tools, like more disclosure requirements and extended warranties at the purchase point⁷³ and a better right to repair in the post-purchase phase. Such responses may be necessary, but they are unlikely to be sufficient. They do not address some of the main drivers of consumerist waste, such as psychological obsolescence.⁷⁴ Further, such responses put too much onus on individual consumers, requiring them to read and comprehend durability disclosures, stay away from soon-to-be-obsolete products, and avail themselves of extended warranties and repair possibilities in the face of opposition from powerful sellers. But individuals cannot affect change when the problem is one of collective action. As long as others around you judge you according to the newness of your smartphone, your ability as an individual consumer to affect change is limited.

Reversing the trend of consumerist waste thus requires changing underlying consumer norms and sellers’ reputational calculus. As things stand, sellers face no reputational fallouts for contributing to product obsolescence, and consumers convey messages to their social circles via externalizing costs on others. This Part proposes the redesign of three familiar policy tools in ways that could change the wasteful status quo. Section A focuses on durability disclosure. Section B explores using the growing ESG momentum in corporate governance. Section C spotlights private litigation as a counterintuitive conduit for affecting sellers’ reputations.

A. Disclosure

Conventional wisdom treats throwaway consumerism as an information asymmetry problem.⁷⁵ Consumers value repair and durability greatly; so, if we observe high levels of product obsolescence, it must mean that consumers were duped by sellers into buying instead of repairing. Thus, requiring that sellers disclose details about products’ expected lifespans would make the problem go away, or so the argument goes.⁷⁶ In reality, however, mandating disclosure in such contexts can be ineffective at best and cause unintended consequences at worst.⁷⁷ Indeed, the E.U.’s experience with eco-labeling suggests that simply providing consumers with information does not necessarily move the needle.⁷⁸

To affect real change in consumer behavior, policymakers need to employ a thicker version of durability disclosure that goes beyond merely passively providing information and proactively highlights how producers frustrate consumer preferences.⁷⁹ For example, policymakers should “reverse the default.” Instead of highlighting products that have a reduced environmental impact, they should flag products that become obsolete quicker.⁸⁰ And instead of framing the issue in terms of benefits to the consumer (“this product is easier to repair”), or in terms of benefits to others (“by buying this more durable product, you help the environment”), the E.U.’s experience suggests that it is better to frame labeling in terms of avoiding future losses (“if you buy this product now, you will soon have to shell out money again for a newer product”).⁸¹

Aside from durability disclosure at the purchasing stage, one could also envision a version of durability labeling that continues to affect consumer behavior at the post-purchase stage by leveraging people’s interest in signaling through positional consumption.⁸² In other words, with a different design, durability labeling could become a tool that addresses both psychological obsolescence and functional obsolescence.

What attracts consumers to signal via repeat purchases is the visibility and multiple message aspects of products such as iPhones. Now suppose the government required that certain electronic devices or clothing have a visible mark on them, denoting their soon-to-be-obsoleteness. In such a world, the person sitting across from you at the bar would notice not only the newness of your shirt or smartphone but also its (lack of) staying power and (adverse) impact on others. Subsequently, producers might start competing not only over who churns out new, trendy product lines faster but also over who sells sustainable products.

Granted, these more aggressive versions of durability labeling will likely face serious political and legal hurdles, such as First Amendment challenges.⁸³ Accordingly, the best chance to reduce consumerist waste may come from less direct interventions that leverage the power of market (reputational) discipline. The next Section elaborates.

B. ESG

Companies are facing increased societal demands to treat their stakeholders and the environment better.⁸⁴ Trillions of dollars are being invested according to various ESG criteria, which include companies’ environmental impact (hence the E).⁸⁵ But so far, these mounting ESG pressures have not pushed companies to reduce unnecessary product obsolescence and thereby lower their adverse impact on the environment. Companies react to ESG pressures by releasing ambitious sustainability plans and touting investments in recycling programs. Yet these companies manage to avoid confronting “the core tension between environmental responsibility and business models built around the ever-escalating production, sale, and replacement” of billions of products every year (p. 27). In other words, current ESG approaches allow companies to receive reputational credit points for being green without reducing their role in product obsolescence. Consider Apple and H&M. These two companies are major culprits of consumerist waste, yet they still seek and receive positive ESG ratings and accolades.⁸⁶

Ideally, ESG ratings and funds should factor product obsolescence into their analysis as follows: screen out firms whose business model relies on constantly churning out new items with disastrous environmental impact; do not simply grant credit for recycling, but also take away credit for planned obsolescence; ask companies to disclose their political lobbying on proposed right-to-repair reforms;⁸⁷ and so on. A stronger link between a firm’s obsolescence strategies and its ESG score would affect not only sellers’ reputational concerns but also consumers’ signaling strategies. Consumers do much of their signaling these days via global brands (such as wearing Patagonia clothes to signal your environmental friendliness). Affecting how consumers perceive a brand would also shape consumers’ willingness to signal by purchasing and using the brand’s products. However, there is ample reason to doubt that this transformation will happen on its own, as ESG rating firms and fund managers do not necessarily have incentives to ensure that ESG ratings reflect actual environmental performance.⁸⁸

Further, even if ESG-rating firms and environmentally-minded investors and workers started demanding that companies commit to reducing product obsolescence, it is not clear whether companies could credibly make such commitments. In other areas where green claims have become common, evidence suggests that these claims too often amount to greenwashing.⁸⁹ To make firms’ commitment to reduce product obsolescence credible, environmentally-minded investors should try to deploy contractual mechanisms, such as “green pills” or “sustainability-linked bonds,” that automatically penalize companies that fail to deliver on their environmental commitments.⁹⁰

As for regulators, sometimes the best thing that they can do to facilitate reputational pressures is not interfere. This is the case with fast fashion and antitrust enforcement. Facing public backlash over their wasteful practices, some designers and retailers have discussed “overhauling the fashion calendar to reduce waste, limiting sale periods and changing the length of seasons.”⁹¹ Yet their attempt to reduce waste has led antitrust enforcers in the United States and the E.U. to investigate them for violating rules that ban competitors from collaborating to fix prices and reduce production.⁹² Antitrust could become part of the solution by enforcing the ban on “tying” practices that limit repair. But it is equally important to make sure that antitrust enforcement is not stymieing a shift in norms in the business community against obsolescence. Going forward, enforcers should rethink the desirability of applying antitrust law to stifle collaborations that are meant to reduce systemic externalities and benefit consumers.⁹³

C. Litigation

Litigation is another conduit through which the legal system can facilitate credible commitment to reducing waste. On paper, consumers could litigate claims of planned obsolescence, and shareholders could litigate claims of disclosure inefficiencies and greenwashing. In reality, such litigation is rare. One reason for the dearth of litigation is the wave of mandatory arbitration provisions that took over consumer contracts with the help of the Supreme Court.⁹⁴ These days, large sellers frequently include take-it-or-leave-it provisions in sales contracts, preventing buyers from going to court (mandatory arbitration), joining forces with others (class action waivers), or sometimes even telling anyone that they were wronged (gag clauses).⁹⁵ As a result, consumer disputes have vanished from the public sphere.⁹⁶

Reviving private litigation in the public eye is key in our context, not necessarily because it will lead to more compensation for consumers or shareholders⁹⁷ but because discovery and depositions can reveal internal communications about planned obsolescence practices and thereby shape sellers’ reputations. Indeed, in the past, information from litigation jump-started public backlash against certain corporate practices, which in turn led companies to improve their product safety and pollution abatement behaviors.⁹⁸

A perfect illustration of these reputation-through-litigation dynamics comes from Apple’s planned obsolescence case, which settled in 2021. It is by now widely known that Apple’s software updates slowed the processors of older iPhones, pushing unsuspecting consumers to purchase newer iPhones. But not so long ago this planned obsolescence strategy flew under the radar and was discussed only on obscure Reddit forums (p. 88). Litigation changed that reality.

When aggrieved users filed class action lawsuits, Apple settled the consolidated allegations for between $310 million and $500 million.⁹⁹ While the money paid was a mere drop in the bucket for Apple, the information obtained in the trial proved critically important. Apple had to submit seven million pages of internal documents concerning its obsolescence strategy,¹⁰⁰ and the plaintiffs deposed ten Apple employees working on these issues.¹⁰¹ Such extensive information extraction generated significant unfavorable media coverage for Apple, which eventually led to the company changing its ways.¹⁰²

There is a broader point at play here. Effective media scrutiny is often key to holding powerful players in society accountable, and information from litigation often makes media scrutiny possible. Indeed, over half of impactful investigative reports rely on “legal sources.”¹⁰³ Litigation, even in its early stages and before a final verdict, can reveal new information to which market players were not privy, lend credence to (or discredit) certain allegations, and contribute to the wide dissemination of certified allegations by making it easier for the media to follow up on the story.

These “indirect accountability” effects of litigation (generating accountability by facilitating media scrutiny) are especially needed in our context, where the public resents planned obsolescence but has little evidence on whether and how companies promote it. The Apple settlement is still a rare exception in that regard. Therefore, one counterintuitive way to reduce consumerist waste is to reevaluate seemingly disparate civil procedure doctrines that restrict the openness of dispute resolution. Ideally, we want courts to rethink their tendency to grant blanket protective orders and approve confidential settlements in product obsolescence litigation. And we want regulators and legislators to rethink the desirability of enforcing class action waivers and gag clauses. Such reforms could unleash the potential of reputational discipline to curb wasteful consumerism.

This Part does not purport to provide an exhaustive account of the potential policy tools to address consumerist waste.¹⁰⁴ Instead, it focuses on one underappreciated angle: how three well-known channels—disclosure, ESG ratings, and litigation—could be used to reshape sellers’ reputations and consumer norms around product obsolescence. There are other creative ways to reshape nonlegal forces in that area, from encouraging whistleblowing¹⁰⁵ (to expose firms’ obsolescence strategies) to carving out exceptions to trademark protections¹⁰⁶ (to shift consumers’ signaling away from soon-to-be-obsolete products).

Still, I would be remiss if I did not mention another tool that supposedly attacks all levels of product obsolescence: the producer pays principle (PPP). The idea behind PPP is to make producers responsible for the product that they sell, even at the post-consumption stage (p. 237). That is, sellers are responsible for collecting, recycling, and properly disposing of products that buyers discard.¹⁰⁷ The advantage of PPP is that it makes producers internalize the full costs of waste management, thereby incentivizing them to reduce all forms of product obsolescence, including psychological. PPP’s weak point is its feasibility; adopting such measures is not always politically feasible and enforcing them may be prohibitively costly.¹⁰⁸

Because consumerist waste is a problem with many causes, mitigating it requires applying various policy tools simultaneously. Instead of debating which tool is better, scholars and policymakers should acknowledge that every policy tool is imperfect and try to ensure that one tool’s imperfections are not correlated with another’s. My goal here is to contribute to our understanding of the promise, perils, and interactions between these commonly used tools.

Conclusion

The right-to-repair movement is gaining momentum. In May 2021, the FTC issued a report titled Nixing the Fix, embracing most of the right-to-repair movement’s arguments (p. 263). In July 2021, President Biden issued an executive order explicitly addressing the need to fight big business’s anti-repair tactics.¹⁰⁹ And in July 2022, the FTC moved from words to enforcement actions.¹¹⁰ Perzanowski’s book could therefore not be timelier. It provides an organizing framework that right-to-repair debates previously lacked. It illuminates more broadly the underlying rationales and relationships between intellectual property, antitrust, and consumer protection laws. And it implicates one of the most burning issues of our time: environmental degradation and how our current consumption practices contribute to it.¹¹¹

However, to understand the causes, consequences, and potential cures for consumerist waste, we need to go beyond repair. Understanding how barriers to repair contribute to throwaway consumerism is intuitive. Fighting for a right to repair is politically palatable.¹¹² And achieving more accessible repair is likely to promote justice and efficiency. This Review does not argue against repair. Still, the underlying problem of consumerist waste stems not just from functional product obsolescence, which lack of repair can cause and a right to repair can mitigate. It also stems from psychological obsolescence, for which the accessibility of repair matters little. Legal scholars, therefore, have no choice but to delve into the gray area of consumer incentives to not repair, which requires borrowing insights from the consumer psychology, marketing, economics, and sociology literatures. And policymakers and activists who wish to reduce consumerist waste must consider less intuitive policy tools, such as adopting thicker versions of durability labeling or rethinking the automatic applications of legal doctrines such as protective orders and antitrust.

To be sure, the ability of regulatory interventions to affect change in this area is limited. Reversing the trend of mounting consumerist waste requires a change in underlying consumer norms and sellers’ reputational concerns. Such shifts in attitudes are possible. Consider, for example, how our collective approach to littering has drastically improved. Over the past half-century, roadside littering in the United States has plummeted by more than 60 percent (p. 254). To reach a similar trajectory with consumerist waste, academics should strive to enhance our understanding of what drives throwaway decisions, and policymakers should stop enabling the existing wasteful equilibrium and start supporting bottom-up changes toward sustainability.

* Visiting Professor, University of California, Berkeley, School of Law; Associate Professor, Reichman University (IDC). I thank Yonathan Arbel, Ori Heffetz, Assaf Jacob, Arnon Lotem, Ted Mirmin, and participants at the Consumer Law Scholars Conference for helpful comments and discussions. I also thank Shira Timor for research assistance.