A few weeks ago, Washington's governor signed its right to repair bill into law.  Texas's right to repair bill has passed its house and senate and was sent to its governor on Monday.  This continues a trend of states advancing, and several enacting, laws directed to the common goal of enabling a so-called right to repair, but with nuanced differences between the different versions. The pros and cons of right to repair laws and details of how they should be implemented are hotly debated.  As states experiment with different laws and policies, manufacturers sell products across states and must cope with the complexity of differing obligations and exemptions.  

For example, the Washington law creates obligations that broadly apply to “digital electronic products and parts that are first manufactured, and first sold or used in Washington, on or after July 1, 2021.”  However, it includes several exemptions, such as for manufacturers or distributors of medical devices as defined by the FDCA or devices or software manufactured primarily for use in a medical setting, motor vehicle manufacturers, life safety systems, fire alarm systems, intrusion detection systems, utility equipment, farm or agricultural equipment, and video game consoles.  

In contrast, the Texas bill would only be applicable to digital electronic equipment sold to a consumer in the state, and it defines “consumer” to mean “an individual who enters into a transaction primarily for personal, family, or household purposes.”  That limitation obviates the need for some of the exemptions found in other states' laws, since things like devices manufactured for a medical setting and utility equipment fall outside of its limitation to digital electronic equipment sold to a consumer.  However, the bill takes a belt-and-suspenders approach, also including express exemptions for many devices that would seemingly fall outside of its consumer-directed scope, including for information technology that is intended for use in critical infrastructure, medical devices or products found in a medical setting or offered for purchase or prescribed by a health care provider, aerospace, airplane, or train equipment, heavy equipment, and commercial and industrial electrical equipment.  It also includes exemptions for certain consumer devices, including home appliances with embedded digital electronic equipment and video game consoles.  

While there are some consistencies across what the bills cover (e.g., express exemptions for video game consoles and medical devices), there are also inconsistencies (e.g., limitation to consumer goods and coverage of home appliances). There are also many other important and sometimes subtle differences between the bills, such as the fair and reasonable terms that would apply to requirements, in some circumstances, to divulge certain trade secret information to an independent service provider “as necessary to provide parts, tools, and documentation.” 

As the right to repair landscape continues to evolve, manufacturers should carefully evaluate their obligations, if any, across jurisdictions and their strategy for complying with, or successfully challenging, those obligations.  The risks may be highest for trade secret information, where compelled disclosure to competitors could risk the information's secrecy.