The EmpCo Directive not only tightens the rules on environmental claims ( see the GEISTWERT blog Part 1 on the new UWG prohibitions regarding sustainability advertising), but also specifically targets practices summarised under the term “planned obsolescence”. To this end, several new offences are being added to the “blacklist” in Annex I of the UGP Directive (and thus, presumably, to the UWG in future). These practices will therefore be prohibited per se in future, without the need to assess the general UWG (misleading) offences.
The changes particularly affect manufacturers and suppliers of goods with digital elements, electronic goods and products with consumables.
Software updates and digital functionality
The new regulations address manipulative practices relating to software updates that artificially affect the lifespan or functionality of devices. In future, it will be prohibited per se to withhold information from the consumer regarding the fact that a software update will have a negative impact on the functioning of goods with digital elements or the use of digital content. If a company (e.g. the manufacturer of a smartphone) prompts the consumer to install an update, it must therefore provide transparent information if this update has known negative consequences. Typical examples include a slowdown in the device’s performance, reduced battery life or the limited functionality of certain apps.
It is also prohibited per se to present a software update as necessary if it serves merely to improve functional features. This prohibition requires a clear distinction to be made between updates that are security-related or necessary for the performance of the contract and pure ‘feature updates’. An update that merely adds new functions or changes the design must not be communicated as “necessary” or “required” in order to pressure the consumer into installing it.
Durability and reparability of goods
A key element of the new regulations is the fight against products whose lifespan is artificially limited. Any commercial communication regarding a product that contains a feature introduced to limit its durability is prohibited, even if the trader has information available about the feature and its impact on durability. This is the central element of the case against ‘planned obsolescence’: if a product (e.g. through software or a specific component) is designed in such a way that it fails after a certain period of time or level of use, and if this product is advertised, an infringement has occurred. It is not necessary to prove intent to promote replacement; it is sufficient to prove that the feature was introduced to limit the product’s lifespan and that the advertiser (in particular the manufacturer) was aware of this.
It is also prohibited per se to falsely claim that a product has a specific lifespan in terms of duration or intensity of use under normal conditions of use. Advertising claims such as “Guaranteed to last 5,000 wash cycles” or “Designed for 10 years of daily use” must correspond to reality. If the manufacturer cannot prove that the product actually achieves this durability under normal use, the claim is inadmissible – as was likely already the case under previous regulations.
It is also prohibited per se to present a product as repairable if it is not. This prohibition is self-explanatory and presumably already applied under previous regulations. Advertising with the claim “easy to repair” or providing a “repairability score” is only permitted if repair is technically possible and practically feasible.
Consumables and spare parts
The handling of consumables (e.g. refills) and spare parts is now also explicitly regulated: it is prohibited per se to induce the consumer to replace or refill the consumables of a product earlier than is necessary for technical reasons. The classic example is a printer that reports the cartridge is empty and stops working, even though there is technically still enough ink for further printouts. Such practices, which artificially boost sales of consumables, will in future be deemed unfair per se.
It is also prohibited, as a matter of principle, to withhold information regarding the fact that the functionality of goods will be impaired if operating materials, spare parts or accessories not supplied by the original manufacturer are used. It is likewise prohibited to falsely claim that such an impairment will occur. This rule has two aspects: (i) Duty to provide information: If a device (e.g. a printer or a smart device) is designed in such a way that it does not work, or works only to a limited extent, with third-party cartridges or chargers (‘lock-in effect’), the consumer must be clearly informed of this before purchase. (ii) Prohibition of misleading claims: Conversely, a manufacturer must not falsely claim that the use of third-party products would lead to damage or malfunctions if this is not the case, in order to persuade the consumer to purchase the more expensive original products.
Practical implications and recommendations
These new per se prohibitions represent a significant tightening of the rules – at least in terms of awareness and enforceability – and create clear opportunities for competitors and consumer protection organisations to challenge them. Companies, particularly those in the electronics and software sectors, must urgently review their product development, marketing and communication strategies.
- Transparency regarding software updates: Communication and update processes must be designed to clearly distinguish between necessary and optional updates and to proactively inform users of any negative consequences.
- Durability as a design criterion: The deliberate limitation of a product’s lifespan is becoming a direct legal risk. Technical and design decisions must be documented and assessed for compliance with these prohibitions.
- Verifiability of advertising claims: Claims regarding durability and reparability must be based on solid, verifiable data.
- Freedom regarding consumables: Artificial barriers to the use of third-party products must either be removed or made fully transparent prior to the contract.