This post was written by Nicholas Rock and Maricela Robles Garza
The RoHS Directive (Directive 2002/95/EC on the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment) prohibits “producers” of Electronic and Electrical Equipment (EEE) from marketing new EEE in the EU that contains more than the prescribed levels of six hazardous substances after 1 July 2006. Breach of RoHS is a criminal offence that may be committed by both the offending company and implicated directors & officers.
The RoHS Directive is closely associated with the WEEE Directive (Directive 2002/96/EC on waste electrical and electronic equipment (WEEE)), which requires producers of EEE to finance the collection, recovery and disposal of WEEE. The restricted hazardous substances under ROHS are as follows: Lead; Mercury; Cadmium; Hexavalent chromium; Polybrominated biphenyls (PBB), which is a flame retardant and Polybrominated diphenyl ethers (PBDE), which is also a flame retardant. Under RoHS, the maximum concentration levels of these substances are 0.1% by weight in homogeneous materials, with the exception of cadmium, which is 0.01%.
The new RoHS Directive 2011 (Directive 2011/65/EU) entered into force on 21 July 2011. As we’ve discussed, member states have until 2 January 2013 to implement the RoHS Directive 2011 into national laws. It has a broader scope and places additional obligations on producers and others, including distributors, compared to the existing regime. Here is a summary of some of the key features of the new regime:
- Repeals and replaces the RoHS Directive 2002 from 3 January 2013;
- Same six restricted hazardous substances and maxium concentrations, but subject to review in July 2014;
- Extends the categories of EEE subject to the ban on use of certain hazardous substances to all EEE, subject to transitional provisions, including medical devices, monitoring and control equipment, cables and a range of products not normally considered to be EEE because they don’t need electrical currents or electromagnetic fields to fulfil their primary function (for example a non-electronic product containing a clock or a light);
- New requirement to self-certify conformity by preparing an “EU declaration of conformity”, apply the European “CE” and other marking of compliant products;
- New requirements on manufacturers, importers and distributors in respect of non-compliant EEE placed on the market to take corrective measures and inform the market surveillance authority;
- New requirement on manufacturers and importers to keep a register or non-conforming EEE and product recalls;
- New obligation on distributors to verify that EEE bears the CE marking and is accompanied by required documentation;
- New conformity assessment procedures;
- Simplified procedure for granting, renewing and revoking exemptions
Although some of the changes described above will be phased in over time, other requirements, such as CE marking, requirements for declarations of conformity and the new obligations placed on the supply chain, will apply immediately from 2 January 2013 and even EEE already placed on the market is subject to some of the obligations of the new RoHS Directive 2011 (such as product still in the distribution chain).
The Commission is currently consulting stakeholders as they produce their own impact assessment and this could lead to further legislative proposals to make further changes to the scope of the Directive. There is therefore still a potential opportunity to lobby to exclude some products currently scheduled to be transitioned into the regime.
Reed Smith’s London-based Environmental team has advised numerous companies on RoHS compliance since inception of the scheme from 2006 and is closely monitoring implementation of the RoHS Directive 2011. If you have any questions, please contact one of the authors of this post.