Massachusetts voters on November 3, 2020 overwhelmingly approved Question One, a ballot initiative amending the state’s Right to Repair Law. Beginning with “model year 2022,” manufacturers who use a telematics system in their vehicles will be required to equip vehicles sold in Massachusetts with a standardized, non-proprietary, open access telematics platform “across all of the manufacturer’s makes and models” and make telematics data available to independent repair shops and vehicle owners. Any repair shop or owner denied access to telematics data will have a right to sue the manufacturer for the greater of $10,000 or treble damages and attorneys’ fees under the state consumer protection statute, Mass. Gen. Laws c. 93A.
These statutory changes could significantly disrupt the distribution of motor vehicles in Massachusetts. Model year 2022—at least as that term is understood in the automotive industry when assigning Vehicle identification Numbers (VINs)—is only 9-10 months away for most OEMs (and less than that for others). The recently passed ballot measure is silent as to the meaning of the term “model year,” but if that is how the recent amendment to the Right to Repair Law is to be understood, then it will be impossible for manufacturers to make required technical changes within this limited timeframe. So what’s next?
If past is prologue, OEMs will negotiate a legislative fix that tweaks the law to remove impossible requirements while accommodating the spirit of the legislation. In November 2012, Massachusetts voters by ballot initiative required OEMs selling vehicles in Massachusetts to “provide access to their diagnostic and repair information system through a non-proprietary vehicle interface” commencing with the 2015 model year. One year later, in November 2013, Massachusetts legislators repealed that law and replaced it with a compromise provision that gave OEMs until model year 2018 to make required technical changes. This measure was part of a larger compromise memorialized in a January 2014 Memorandum of Understanding in which OEMs committed to equip vehicles with a standardized interface and make diagnostic information available in all 50 states.
With the latest requirements imposed by the Massachusetts Right to Repair Law taking effect with “model year 2022,” however, manufacturers may not have much time to strike a deal. OEMs could argue that the term “model year 2022” is ambiguous and should be understood to refer to a model year that occurs in calendar year 2022. This may not be enough time for manufacturers to modify equipment to meet new requirements, but it could be enough time to negotiate changes that make the requirements of the Massachusetts Right to Repair Law technically feasible.
Unless swift changes are made, manufacturers may need to consider other ways to avoid an uncertain enforcement regime in Massachusetts. OEMs could challenge the constitutionality of the new law, which implicitly seeks to regulate far beyond the borders of Massachusetts and could be read to impose unfair requirements that are impossible to meet. Under federal law, vehicle emissions standards must be announced at least 18 months before they are implemented, and OEMs might argue that it is absurd that one state could demand such substantial changes to vehicle design in the space of a few months.
Another option available to OEMs may be to not sell “model year 2022” or later vehicles in Massachusetts until vehicle technology has caught up with the requirements of state law or a legislative fix is in place. This would avoid the uncertainty and potential exposure that may arise if OEMs sell vehicles with a model year 2022 VIN in Massachusetts that are not equipped with the required telematics platform. Whatever manufacturers choose to do, and whatever “model year 2022” means for purposes of Massachusetts law, time is running out.