The Department of Consumer Affairs (“DCA”) has set up a committee (“R2R Committee”) to develop a frameworkon the Right to Repair (“R2R”) in India, under the LiFE (i.e. Lifestyle for Environment) Movement, with the aim of ‘developing sustainable consumption of products’, ‘reducing e-waste’ and harmonizing ‘trade between original equipment manufacturers and third party buyers and sellers’. The R2R Committee is chaired by the Additional Secretary of the DCA and includes members from the legal fraternity as well as stakeholders from various consumer organizations.
The R2R movement demands that manufacturers make spare parts of their products available to consumers and/ or third parties to allow consumers to repair the products purchased by them or choose their own service providers, instead of approaching the manufacturer or purchasing an authorized replacement.
The R2R Committee held its first meeting on 13th July 2022 and identified various sectors, including, (i) Farming Equipment, (ii) Mobile Phones/ Tablets, (iii) Consumer Durables, and (iv) Automobiles/Automobile Equipment, for the purposes of constructing the R2R framework.
The R2R Committee discussion included aspects like manufacturers’ proprietary control over spare parts and claim that such monopoly infringes consumers’ ‘right to choose’. Further, this committee also discussed the issue of ‘planned obsolescence’ and artificially limited life spans of products to encourage replacements. As per the committee, restricting the R2R forces consumers to deliberately make a choice to purchase a new model of their product. Further, the R2R Committee acknowledged that India has a vibrant repair service sector which includes inter alia third-party repairs. Accordingly, parts and tools should be made available to these third parties to repair minor glitches.
It was felt that tech companies should provide complete knowledge and access to manuals, schematics and software updates to these third party service centers and the software license should not limit the transparency of the product.
The R2R Committee considered the steps taken as well as practices adopted by other jurisdictions (the European Union, the United Kingdom, and the United States of America) towards R2R and how the same can be incorporated within the Indian framework.
With the strengthening of consumer protection statutory framework in India, the R2R topic has now come centre-stage with the government actively considering a framework on this topic. While consumer interest indeed needs to be strengthened, the government will have to carefully assess the implications of the R2R framework/policy particularly from the perspective of cyber security issues in relation to high-tech products, any potential expropriation or nontreaty limitations of/exceptions to intellectual property rights and finally the aspect of quality as regards spare parts availability and how these will impact manufacturer warranties etc. Pertinently, access to the aftermarket allows manufacturers to ensure reliability of their products and eliminate malpractices pertaining to their products which may end up hurting their goodwill and the safety of their consumers. Presently, the discussions around introduction of R2R in India are at a nascent stage. Accordingly, the R2R Committee’s approach towards resolution of these issues in the Indian market would be crucial to the formal introduction and the scope of the R2R in India. A balanced approach will have to be taken to provide a consumer-friendly market while maintaining the rights of the manufacturers.
The Ministry of Communications (“MoC”) has issued a consultation paper on the “Need for a new legal framework governing Telecommunication in India”. While issuing the consultation paper, the MoC noted that the “India needs a new law which is clear, precise, and attuned to the realities of the sector for realizing the potential of telecommunication.” The MoC has sought suggestions from the public regarding the consultation paper until 25th August 2022.
Currently, the telecom sector is regulated by the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933 and the Telegraph Wires (Unlawful Possession) Act, 1950. The Consultation paper recognises the fact that the technology and the nature of telecommunication have undergone a massive change since these laws came into effect. Hence, a new law on telecommunication is needed which aims at establishing and enabling a future ready framework for the development of telecommunication sector and deployment of new technologies. Such a law needs to consolidate the existing laws governing telecommunication sector, while taking into consideration global best practices.
The MoC has taken a welcome step in recognising the archaic legal framework governing the telecommunication sector in India. With the advent of next generation technologies like AI, 5G, M2M, ML, etc., this initiative by the MoC is noteworthy since it may potentially remove any legal lacunae delaying the deployment of such technologies.
The Consultation Paper dwells upon the need to have a framework for RoW without analysing the problems affecting the extant RoW regulations issued in 2016. A Judicious approach could be to first issue a white paper outlining the lacunae in the existing RoW regulations and thereafter ameliorate the RoW framework.
Similarly, the extension of the ambit of USOF for research and development purposes is laudable. However, it is equally important to continue to resolve the problem of underutilisation of the existing funds under USOF for deployment of telecommunication facilities in underserved areas.
The move to make penalties proportionate to the offence committed is in line with the ease of doing business approach of the Government of India and is certainly much needed and commendable. A detailed consultation process with the industry and relevant stakeholders is highly recommended to ensure balancing of interests.
Lastly, the provision to mandate telecommunication equipment standards should be accompanied by detailed consultation process as well as an exercise rationalizing the extant standards mandated under the Mandatory Testing & Certification of Telecommunication Equipment and the National Security Directive on Telecommunication Sector. Overlapping mandates for equipment certification militates against a light touch regulatory approach and ease of doing business initiative adopted by the Government of India.
On 14th July, 2022, the Department of Consumer Affairs notified, with immediate effect, the Legal Metrology (Packaged Commodities) (Second Amendment) Rules, 2022 (“Second Amendment Rules”). The Second Amendment Rules allow certain mandatory declarations (that are otherwise required to be made on the label on a packaged commodity) to be made through a QR Code on product packaging of electronic products for a period of one year (on a trial basis), if not declared on the package itself.
Presently, the Legal Metrology (Packaged Commodities) Rules, 2011 (“LMPC Rules”) under Rule 6 (1) require specific declarations to be mandatorily made on product packaging. This mandatory requirement, for limited declarations and subject to underlying conditions specified vide the Second Amendment Rules, stands temporarily eased for a period of one year, i.e., till the 15th July, 2023, only for electronic products. It is worth noting that the LMPC Rules accommodate QR Code placement on product packaging irrespective of the category of products under Rule 6 (4A), however the same can be placed by a manufacturer, packer or importer only in addition to the aforementioned mandatory declarations under Rule 6 (1) and not in place of them.
The Second Amendment Rules are purported to be a pilot project aimed at familiarizing the average consumer with the option of accessing information through a QR Code. The Second Amendment Rules therefore require a declaration to be made on the product packaging to inform the consumers to scan the QR code for other related information in case such information is declared through the QR Code and not declared on the package itself.
The temporary allowance (for a period of one year from 15th July 2022) providing the option to use QR Codes under the Second Amendment Rules is limited to;
While the allowances introduced under the Second Amendment Rules appear to be a pilot project attempting to understand the ability of a consumer to access mandatory declarations on a label through the use of QR Codes, the temporary nature of the allowances may pose to be an inconvenience on manufacturers, importers or packers to implement changes on the product label that will entail serious production and packaging related effort and costs. It remains to be seen whether relevant stakeholders will be willing to make the effort and put in the required costs to carry out these packaging related changes on their labels for an allowance that may be temporary in nature and may not be renewed after a period of one year. While declarations made through QR Codes enable relevant stakeholders to effectively and in a compact manner declare important information, a temporary allowance that has the potential to be withdrawn after a period of one year may pose to be a deterrent. Given that the world is moving towards technology driven solutions and that consumers have become increasingly technologically savvy, it would be useful to implement the QR Code allowances on a permanent basis for the purposes of pushing the Government of India’s initiative of enabling ease of doing business in India.
The Ministry of Health and Family Welfare (“MoHFW”) has issued the Draft “Drugs, Medical Devices and Cosmetics Bill, 2022” (“ DMDC Bill”) which specifically regulates medical devices apart from Drugs and Cosmetics. While issuing the draft DMDC Bill, the MoHFW noted that the “Drugs and Cosmetics Act, 1940 is a pre-independence legislation enacted by the Central Legislative Assembly. Review of obsolete laws and updating of the existing laws is a continuing process to accommodate changed requirements and adaptation of new technology.” The MoHFW has initiated a public consultation process seeking suggestions regarding the DMDC Bill till 21st August 2022.
Currently, medical devices in India are regulated as under the broad category of ‘Drugs’ under the Medical Devices Rules, 2017 (“MDR”), which in turn comes within the Drugs & Cosmetics Act, 1940 (“DCA”). However, the DMDC Bill appears to have brought medical devices outside the purview of drugs to be regulated and recognised as a separate category altogether.
The following conditions have been proposed for prohibition of import/ manufacture/sale of medical devices –
– non-conformity with prescribed standards of quality, safety and performance
– misbranded, adulterated or spurious
– does not display such details as may be prescribed in respect of accompanying software, part, component or instrument;
– false statement, design or accessory accompanying it or by any other means, purports or claims to cure any disease or ailment,
– unlicensed import or manufacture for sale, stock, distribution of medical devices
– it is configured so as to conceal any damage/ or made to appear of greater functional value or made to appear of lesser risk than it really is; or
– it is not labelled or packed in the prescribed manner; or
– it bears label, container, statement, design or device which makes any false claim; or
– it contains colours not expressly permitted in the license or permission issued by the authorities
– consists of rusted or corroded or filthy or putrid or decomposed substance; or
– is prepared, packed or stored under insanitary conditions whereby it may have been rendered injurious to health; or
– contains any harmful or toxic substance or component or software or parts thereof which may render it dangerous to use or injurious to health; or
– is having any substance/component/ software or part thereof mixed/added/ substituted/removed there from so as to reduce its quality or performance or safety which may render it dangerous to use or injurious to health; or
– is having a pack or container composed of any deleterious substance which may render it dangerous to use or injurious to health
– is having the label/pack/container bearing the name of a fictitious/incorrect individual or firm or company purporting to be the manufacturer of the device or
– purports to be the product of a manufacturer who is actually not the manufacturer of the product.
– Medical Devices officer
– Authorised gazetted officer of the Central/State Government
– Aggrieved Person
– Recognised consumer association
The MoHFW has taken a welcome step in recognising and regulating medical devices separately rather than considering it as ‘Drug’ under the DCA in order to regulate it. However, it remains to be seen if the comprehensive and sweeping risk-based classification of medical devices for conformity assessment and regulation as per the current notifications issued by the Drugs Controller General (India) under the MDR will continue to apply mutatis mutandis to the DMDC Bill. Additionally, in the interest of transparency the MoHFW should also consider mandating the Medical Devices Technical Advisory Boards to compulsorily engage in a public consultation while issuing any order/guideline/ notification under the DMDC Bill.
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