Beveridge & Diamond
 

EU Commission Issues Proposed Changes to RoHS and WEEE Directives

Beveridge & Diamond, P.C., December 8, 2008

On December 3, 2008, the European Commission published proposals to revamp two key Directives impacting the electronics industry and with broader implications for product stewardship and design-for-the environment mandates worldwide.  The proposals would revise the Directive on the restriction of the use of certain hazardous substances in electrical and electronic equipment (2002/95 EC) (“RoHS Directive”) and the Directive on waste electrical and electronic equipment (2002/96/EC) (“WEEE Directive”). 

RoHS Directive Revisions

Substance Restrictions.  The RoHS Directive currently restricts market access in the European Union for a broad range of electrical and electronic equipment that exceed certain allowable concentrations of heavy metals (lead, mercury, cadmium, and hexavalent chromium) and some brominated flame retardants (polybrominated biphenyls (PBB) and polybrominated diphenyl ethers (PBDE)).

Scaling back from earlier plans to restrict a long list of additional substances, the Commission’s proposal instead requires review and consideration of possible future restrictions for four substances:  the phthalates Bis (2-ethylhexyl) phthalate (DEHP), Butylbenzylphthalate (BBP), and Dibutylphthalate (DBP), and the brominated flame retardant Hexabromocyclododecane (HBCDD).  These substances are on the list of substances of very high concern (SVHC) established under REACH, the EU’s expansive chemicals regulatory program, so companies may have already begun due diligence regarding their presence in the supply chain.

Scope of Products Covered.  The Directive currently exempts two categories of equipment covered by its sister, the WEEE Directive—medical devices and monitoring and control equipment.  The Commission proposes adding these two categories to the RoHS Directive’s scope.  Medical devices would be covered as of 2014, monitoring and control equipment as of 2014, in vitro diagnostic medical devices as of 2016, and industrial monitoring and control equipment as of 2017.  The proposal includes a list of 20 exemptions for specific applications of the restricted substances in these equipment categories.  The legislation would also allow non-RoHS-compliant spare parts to be used in equipment put on the market prior to the effective date for each type of equipment. 

Compliance.  One of the most significant changes to the Directive would be the addition of specific requirements for manufacturers and importers to show compliance with the Directive.  The existing Directive contemplates that by the act of putting covered equipment on the market, the manufacturer or importer has declared they are RoHS compliant.  This proposal, however, would require a compliance declaration, CE marking, and a host of conformity procedures to be performed before products can be sold on the EU market.  In the event a non-compliant product is put on the market, the proposal would require disclosure to the competent national authorities of affected Member States.  The proposal would also require Member States to conduct market surveillance as part of their enforcement program. 

Technical Exemptions.  The proposal would allow non-RoHS compliant spare parts to be used in equipment that had been covered by a technical exemption at the time that equipment was put on the market, even if the exemption has subsequently expired. 

In addition, the Commission is proposing another criterion for obtaining technical exemptions.  The RoHS Directive currently allows the Commission to approve technical exemptions for applications of the six substances if substitution is “technically or scientifically impracticable, or where the negative environmental, health and/or consumer safety impacts caused by substitution are likely to outweigh the environmental, health and/or consumer safety benefits thereof.”  The Commission proposes adding a criterion for weighing “socioeconomic” impacts.

For a printable PDF of the RoHS proposal, please click here.

WEEE Directive Revisions

The WEEE Directive requires mandatory end-of-life collection and recycling of a broad range of electrical and electronic equipment.  Producers are required to finance collection of such equipment from a centralized point and subsequent recycling.  The Commission’s proposal would replace the existing collection target with a target of 65% by weight of all covered electrical and electronic equipment put on the market, in effect from 2016.  The revised Directive would remove the time limit on allowing producers to show consumers at the time of sale the costs associated with complying with the Directive.  The proposal would also redefine covered electrical and electronic equipment in relation to the RoHS Directive.

Significantly, the Commission’s proposal could also require producers to finance collection of WEEE from households, which is an expansion of existing obligations for collection from municipal collection facilities and would significantly increase producers’ costs.  This concept was not included in the stakeholder consultation process earlier this year. 

For a printable PDF of the WEEE proposal, please click here.

The Commission’s proposed legislation must be approved by both the European Parliament and Council before it becomes effective at the EU level; it must then be transposed into national law at the Member State level.  Although the Commission's proposal is likely to be very influential in determining the ultimate shape of the RoHS and WEEE revisions, there are still opportunities during the legislative process at the EU level for the proposal to change based on input from the other EU political bodies. 

For more information about the proposed EU legislation, please contact Paul Hagen (phagen@bdlaw.com) or Elizabeth Richardson (erichardson@bdlaw.com).

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