Consumer rights should never be used to legitimize waste

Millions of products are still being destroyed every year: customer returns, unsold stock, and items that are cheaper to replace than to repair. Europe is eager to counter such wasteful practices but cannot do so without adequate laws and regulations. Charlotte Pavillon discusses the legal complexities surrounding the circular economy.

^{Text: Esther van der Meer, Faculty of Law / Photos: Henk Veenstra}

Be honest: how often do you return products you have purchased online? We live in a throw-away society. Research conducted by the Dutch Broadcasting Foundation (NOS) found that, on average, fifteen percent of all online orders are returned and a whopping forty percent of all clothes and shoes ordered online end up back with the web shops we bought them from.

Professor of Private Law and specialist in consumer law, Charlotte Pavillon, believes passionately in the urgent need to take a critical look at the right to return goods. ‘It really is something of a sacred cow in Europe.’  

Straight into the incinerator

Millions of products are still being relegated to the incinerator: returns, unsold products, and items that are cheaper to replace than to repair. This cannot be allowed to continue. There is a Europe-wide drive to combat this waste as part of the Green Deal. The Netherlands has set itself the ambitious goal of seeing consumption of raw materials halved by 2030.

The law has a major role to play in the transition to a circular economy. New laws and regulations are needed to underpin the development of a more sustainable society.

‘Take my speciality, consumer law,’ says Pavillon, ‘I have seen huge developments in recent years. It is now mandatory to include sustainability information on products. Measures have been introduced to combat planned obsolescence, the practice of deliberately shortening the lifespan of a product. Significant progress has been made in tackling greenwashing. And the Right to Repair Directive is set to come into force at the end of the summer.’  

Right to repair

The aim of the Directive is to make it easier for consumers to find a repairer and to access repair information. At present, getting a product repaired can be fraught with obstacles: the spare parts you need are not available, repairers are hard to find, the repair process is slow, expensive or, in some cases, downright impossible because parts have been glued into place.

Unfortunately, the Directive will not solve all the above issues. ‘We already have the right to free repair within the warranty period. But in the Netherlands, the warranty period is linked to the reasonable life expectancy of the product. How do you determine reasonable life expectancy? How long must spare parts remain available? And do the requirements apply to every little nut and bolt used?’

Pavillon would like to see the application of the legal warranty period made clearer and more honest. ‘Life expectancy should be expressed in concrete terms. State, for example, how many cycles a washing machine can be expected to perform.’

And even then, it can be difficult to decide what the most sustainable choice is. Repairing your old, energy-guzzling washing machine might, for example, be less sustainable than replacing it with a modern, energy-efficient model.

Shift in consumer mindset

Consumers are not obliged to have products repaired, so whether the Directive will actually lead to a thriving market with consumers queueing to get their old products fixed remains to be seen.

Pavillon knows that the path leading to changes to consumer law is far from smooth. ‘You have to keep getting the balance right. Consumer law arose in the sixties in response to the emergence of a consumer society and the normalization of mass production. The legal rights to replacement or repair protected consumers and gave them the confidence to buy stuff. But those rights should never be allowed to feed and legitimize a throw-away culture.’

It also requires a shift in the consumer mindset. ‘Buy now, pay later, web shops with an unlimited supply: it has all become such a normal part of our daily lives.’

Stricter rules

Pavillon believes that the answer lies in applying stricter rules. ‘Compare it to how the rules applied to smoking were steadily tightened. Why not make it compulsory to enclose photos of the enormous clothing landfills in the Global South with every clothing order to stimulate people not to return their purchases? We banned the use of lead; surely, we can further restrict the use of plastic. And it’s easy enough to discourage people from returning products – just make return fees mandatory.’

In practice, however, there’s a long way to go. Worse still, the EU appears to be treading water. ‘A directive on how to verify greenwashing claims has been put on hold. Returning products is being made easier, as websites will soon be required to include a return button. It looks as if the EU has decided to put sustainability on the back burner for now.’  

Until that tide turns, perhaps it is up to us to think twice before pressing the order button.

More information

Charlotte Pavillon