The practical impact of the recast RoHS and WEEE Directives | Practical Law

The practical impact of the recast RoHS and WEEE Directives | Practical Law

The recently recast RoHS and WEEE Directives form the central regulatory regime on the environmental impact of electronic products in the EU. Due to the impact of these directives, the decision to create new versions has serious implications for the electronics industry. This article looks at some of the major changes under the newly recast legislation, and the legal as well as managerial considerations involved in securing compliance and maintaining marketability despite the recent changes.

The practical impact of the recast RoHS and WEEE Directives

Practical Law UK Articles 2-521-9498 (Approx. 8 pages)

The practical impact of the recast RoHS and WEEE Directives

by Dario Hunter and Tzvi Levinson, The Levinson Environmental Law Firm
Law stated as at 01 Oct 2012 • Israel
The recently recast RoHS and WEEE Directives form the central regulatory regime on the environmental impact of electronic products in the EU. Due to the impact of these directives, the decision to create new versions has serious implications for the electronics industry. This article looks at some of the major changes under the newly recast legislation, and the legal as well as managerial considerations involved in securing compliance and maintaining marketability despite the recent changes.
Directive 2011/65/EU on the restriction of the use of certain hazardous substances in electrical and electronic equipment (recast RoHS Directive) was published on 1 July 2011. As with the original directive (Directive 2002/95/EC on the restriction of the use of certain hazardous substances in electrical and electronic equipment (original RoHS Directive)), it strictly limits the use of certain substances in electrical and electronic equipment (EEE). Directive 2012/19/EU on waste electrical and electronic equipment (recast WEEE Directive) seeks to regulate the disposal of EEE through registration, to guard against the negative potential impacts of improper disposal. The varied compliance requirements of both directives have had a significant impact on the electronics industry in the European market as well as globally. Countries outside of the EU have developed their own similar legislation modelled on the EU restrictions on hazardous substances (RoHS) and waste EEE (WEEE), and companies in non-EU countries have found themselves forced to adhere to the expected standards under the RoHS and WEEE regime to remain marketable in the EU.

RoHS

The recast RoHS Directive (as with the original RoHS Directive) restricts the use of six substances in EEE (Annex II, recast RoHS Directive):
  • Lead.
  • Mercury.
  • Cadmium.
  • Hexavalent chromium.
  • Polybrominated biphenyls (PBB).
  • Polybrominated diphenyl ether (PBDE).
For all of these substances except cadmium, no more than 0.1% is permitted to be present in EEE. For cadmium, the limit is no more than 0.01%. These limits are measured by the percentage (or parts per million) found, weight by weight, in each component of homogeneous material. Questions as to what constitutes separate components of homogenous material are often the subject of legal analysis on the part of legal compliance experts.

The definition of EEE under the RoHS

Most of the essential features of the RoHS have not changed. However, a change in the definition of EEE has managed to turn compliance on its head. EEE had been previously defined under the original RoHS Directive (in part) as devices that were "dependent" on electricity (Article 3(a), original RoHS). "Dependent" was further defined to mean that the device required electricity to perform its primary function (European Commission, Frequently Asked Questions on RoHS and WEEE (May 2005) (RoHS/WEEE FAQ), see website: http://ec.europa.eu/environment/waste/pdf/faq_weee.pdf).
As an example, a device that inflates balloons might merely need a lever to be depressed to release helium gas from a cylinder; a mechanical, non-electrical function that is the primary function of the device. However, the device might also have an LCD gauge, run by a battery that indicates how much gas is left. Under the original RoHS, such a device was not considered EEE as it did not require electricity to perform its main function. This determination is vital as to whether or not the product must comply with the RoHS provisions. Under the recast RoHS Directive, the definition of EEE now includes devices that are dependent on electricity even for secondary functions. Therefore, such a device would now have to comply with the RoHS.
The result of this change in the definition of EEE is that very many products that would never have otherwise come under the scope of RoHS are now included. This will require some serious re-evaluation by manufacturers, importers, and so on, of products that use electricity in any way to power their devices.

Categories under the RoHS

The categories of devices coming under the scope of the RoHS have also expanded. For instance, medical devices are now included in Category 8 (Annex I, recast RoHS Directive). Each of the new inclusions under the categories of RoHS opens them up to the original RoHS requirements as well as the new range of requirements under the recast RoHS (such as CE marking (marking on a product that the product complies with the relevant European health, safety and environmental protection legislation), declaration of conformity and so on).
The most important category addition, however, is that of Category 11, a catch-all category under which any and all EEE that does not otherwise fit under the other categories of EEE is included (Annex I, recast RoHS Directive). This ensures that the RoHS's provisions will be applicable to all products meeting the EEE definition.

Exemptions

The RoHS regime provided a number of exemptions designed to allow certain industries that depend on the use of the six limited substances in excess of RoHS limits to continue business. For example, the use of lead soldering in telecommunications has proved exceedingly important to that industry. For a number of years, substitutes (such as those made with tin) proved substandard and created problems in telecommunications quality and equipment longevity. As a result, an exemption was provided under the original RoHS (Exemption 7(b), Annex, original RoHS Directive). These exemptions were reviewed every four years and not deleted unless a review concluded that the exemptions were no longer necessary.
However, under the recast RoHS, all exemptions will expire automatically (Article 5(2), recast RoHS Directive). An application must be made to renew the exemption, which can be done 18 months before expiry. A decision on the application must be provided at least six months before expiry.
Under this new regime, the example exemption, which applies to lead in solders for network infrastructure equipment for switching, signalling, transmission and network management for telecommunications, will expire on 21 July 2016. An application for renewal would have to be submitted no later than 21 January 2015. A decision must be given no later than 21 January 2016. If the decision is negative, the exemption would then expire between 12 to 18 months after the decision.
For companies that depend on certain exemptions under RoHS, this adds an additional set of considerations and compliance steps to their overall compliance strategy. Smaller companies may find that they do not have the resources to lodge an application for renewal on their own and must brace for the expiry of the exemption unless a larger company is already lodging such an application. In any case, companies will have to develop a strategy to anticipate and plan for the very real possibility of expiry of exemptions they depend on.

Responsible parties under RoHS

The original RoHS placed responsibility primarily on producers. Under the recast RoHS, there are a number of recognised responsible parties, including the (Article 3(6)-(9), recast RoHS Directive):
  • Manufacturers, defined as persons who manufacture EEE, or who have EEE designed or manufactured and market it under their name.
  • Importers, defined as persons who, from within the EU, place EEE from a third country on the EU market.
  • Distributors, defined as actors in the supply chain, other than manufacturers or importers, who make EEE available on the EU market.
  • Authorised representatives, defined as persons within the EU who take on a written mandate from a manufacturer to act on its behalf for specific tasks.
To ensure that there is someone to be held responsible for compliance failures, manufacturers (and their authorised representatives), importers and distributors have a number of common responsibilities, including:
  • Drawing up the required technical documentation and an EU Declaration of Conformity (DoC) as well as ensuring that CE marking is properly placed on the product (Article 7-10, recast RoHS Directive).
  • Keeping the technical documentation and DoC for ten years (Article 7-10, recast RoHS Directive).
  • Being capable of providing the information and documentation necessary to demonstrate conformity (Article 7-10, recast RoHS Directive).
Manufacturers must keep a register of non-conforming EEE and product recalls and keep distributors informed of them (Article 7, recast RoHS Directive).

DoC and CE marking

EEE that falls under the scope of RoHS must now be accompanied by a DoC (Article 13, recast RoHS Directive). This requirement has been a feature of other forms of EU legislation but is now a part of the RoHS regime for the first time. The form of the DoC is specified in Annex VI of the recast RoHS Directive. The DoC must:
  • Identify the EEE.
  • Provide a name and address for the manufacturer or authorised representative.
  • Quote the directive it relates to (that is, the recast RoHS Directive).
  • Refer to relevant harmonised standards or technical specifications that relate to conformity.
  • Feature the name, function and signature of a signee, as well as the date of issue.
While the previous version of the RoHS did not require CE marking or any other special mark of RoHS compliance, under the recast, all equipment covered by the RoHS must now bear the CE mark. The mark must be displayed on the product visibly, legibly and indelibly (Article 14, recast RoHS Directive). Manufacturers, importers and distributors are responsible for ensuring that the mark is properly placed on EEE (Article 7-10, recast RoHS Directive). Cables will have to comply with the requirement as they (still) fall under the scope of the RoHS and WEEE regime as EEE, although specific instructions on CE labelling for cables have not yet been forthcoming (RoHS/WEEE FAQ at 13).

Recast WEEE Directive

Although they focus on different areas of the environmental impact of electronics, the WEEE and RoHS Directives are linked in many ways, both in terms of legal implementation as well as practical compliance. The recast WEEE Directive focuses on managing e-waste and includes among its requirements the necessity to ensure the proper disposal of EEE at the end of its lifecycle, which may be done by registration with a compliance scheme.

Definition of EEE

Arguably, the change in the recast RoHS Directive to the definition of EEE (extending it to devices that are dependent on electricity for secondary functions) will mean a change in the definition of EEE for the recast WEEE Directive, as long as both continue to use and rely on the same terms. Under the original RoHS Directive and Directive 2002/96/EC on waste electrical and electronic equipment (original WEEE Directive), the definition of "dependent" (on electricity) in relation to EEE was identical (RoHS/WEEE FAQ at 4, 6).
Although it is possible to argue that the definition of EEE under the recast WEEE Directive has not changed, this is debatable as the RoHS and WEEE regimes have been traditionally linked through their common definition of EEE. The debate will not be settled until the EU Commission releases its much anticipated guidance on the recasts.
Should the change in the definition of EEE in the recast RoHS Directive affect the recast WEEE Directive, this would seriously affect compliance with other forms of regulation that depend on the definition of EEE under the WEEE regime, such as Directive 2006/66/EC on batteries and accumulators and waste batteries and accumulators (Battery Directive).

Impact on the Battery Directive and its eco-design provisions

Article 11 of the Battery Directive requires that battery powered EEE (defined in the same way as under the WEEE regime) be designed so that the batteries are "readily removable". The term "readily removable" does not have a clear definition on an EU-wide scale and in practice depends on the interpretation of the individual member states. Under Article 11 of the Battery Directive, the battery must be readily removable by the end user or a professional (such as a service centre or waste treatment centre). An exemption from this requirement is allowed where a continuous power supply is necessary to ensure safety or performance and a permanent connection is required.
To illustrate how Article 11 of the Battery Directive would apply to devices newly placed under the scope of the WEEE regime, consider the following example of a whipped cream machine, assessed under the national version of the Battery Directive in the UK. The example device uses a gas cartridge to whip the cream, without the aid of electricity to perform this task. However, attached to the device is a gauge indicating how much gas is left in the cartridge. The gauge is powered by a single button cell battery, soldered to the device. In order to replace the battery, the user must take the device to a professional.
The Batteries and Accumulators (Placing on the Market) Regulations of 2008 (SI 2008/2164) implement Article 11 of the Batteries Directive in the UK and have the same scope (that is, to EEE as defined under the WEEE Directive). Particle 2, Reg. 7 of the Regulations is similar to the text of Article 11 of the Battery Directive.
However, UK guidance documents further explain the UK interpretation (UK BERR, The Batteries and Accumulators (Placing on the Market) Regulation 2008: Government Guidance Notes (August 2008) at 13-15). The guidance gives an example of a backup battery for a clock in an electricity meter. As long as the battery is only for backup and is intended to last the life of the device, an exemption applies. However, the exemption does not apply to a normal household clock unless the manufacturer can demonstrate that the battery would normally outlast the life of the clock itself. The battery used for the gas meter in our example is not used for backup, it is used as the primary power source for that function. In addition, the battery is not expected to last for the life span of the device and will normally need to be replaced.
The UK guidance indicates that "readily removable'" means "removable by the consumer with household tools". Unless the backup power exemption applies, a manufacturer cannot place on the market in the UK any EEE with batteries that require professional removal. This is an additionally stringent requirement that applies in the UK beyond what is required by the Batteries Directive.
The whipped cream device would not have been EEE under the original WEEE regime if it only used electricity for the gas meter, although it is now EEE under the recast RoHS. This change in the definition of EEE (due to the combined impact of the recast RoHS and recast WEEE regime) may serve to bring the whipped cream device as a whole under the scope of the Batteries Directive. As such, the hypothetical device, with a battery soldered to the internal gas gauge, may now violate UK regulations after the recasts taking effect.
Companies that market products within the EU must therefore pay due attention to the broad effect that the RoHS and WEEE Directive recasts will have on compliance with environmental legislation in the EU and seek advice on building a comprehensive strategy in this regard.

Product scope and categories

Among the changes to the WEEE regime under the recast, the ten categories of EEE have now been reduced to six (Annex I, recast WEEE Directive). Different member states' recovery targets will be tied to these categories (Annex 5, recast WEEE Directive). However, the categories will be open in scope, meaning that all EEE (except those specifically excluded in Article 2(3)-(4)) will fit into one of the categories and therefore come under the regime (Article 2(1)(b), recast WEEE Directive). Annex IV provides examples of devices that fall under each of the categories but states specifically that this is not an exhaustive list.
Article 2(1)(a) allows for a transitional period lasting until 14 August 2018, during which the previous ten categories will remain in effect. After this, enforcement bodies in the EU member states, as well as those who manufacture, import or distribute EEE will have to plan for the potential inclusion of devices that were previously out of their regime's scope. For businesses, this may create the need for serious modifications to their legal compliance strategy, creating (among other things) a new need to register devices with a WEEE scheme (through each member state's national registry).

Change in the definition of producer

The definition of "producer", the primary responsible party when it comes to WEEE compliance, has been changed to recognise the reality of companies based outside of the EU selling products on the EU market. The term now includes parties that are established in a non-EU country if they sell directly to users (household or business to business) by means of distance communication (Article 3(1)(f), recast WEEE Directive). The new definition also includes entities established in another EU member state if they are selling directly to end users. This is meant to settle the question that arose in certain EU states as to whether or not a non-local entity was in fact a "producer'" and able to register with a WEEE scheme on its own behalf. This will have a simplifying effect on the process of registration for companies outside of the EU doing business in the EU market as well as for companies doing business in EU member states.

Changes to registration and enforcement

Two of the biggest areas of compliance that often require detailed legal advice and analysis are registration and enforcement actions. Both areas have proven variable between member states, as each state is responsible for establishing its own registration schemes and means of enforcement.
The recast WEEE Directive aims to simplify the situation by establishing a mandate for a uniform registration format and a uniform approach to enforcement (Article 16(3) and 23(4), recast WEEE Directive). Neither of these uniform procedures have yet been codified and released. However, it is anticipated that they will significantly change the practical aspects of compliance with the WEEE regime by providing some well-needed predictability to the process of registration and issues of enforcement that may be faced by companies that market EEE in the EU.
Another method of informal enforcement is industry-led, in the form of requests for declarations on compliance status and other industry correspondence on compliance that seeks to ensure that suppliers provide companies with compliant goods. The nature and content of such requests will change to reflect the changed requirements. More importantly, the industry-wide expectations for compliance are likely to increase, due to strengthening environmental regulation in this area.

Prospects

Although the basic environmental aims behind the directives have not changed, the means have undergone significant revisions since the passage of the RoHS and WEEE recasts. The EU has worked out some of the kinks in the regime through observation of the practical effects of the prior versions. In some ways, this will be to the benefit of companies who market EEE in the EU as it may provide comparative simplicity and predictability. In other respects, the new changes may compel such companies to take previously unnecessary compliance steps and to dramatically revamp their approach to compliance with environmental legislation for the sake of keeping their products marketable in the EU. Companies are advised to consult with experts in this field to ensure compliance with the revised RoHS and WEEE standards.

Contributor details

Dario Hunter

The Levinson Environmental Law Firm

Image 1 within The practical impact of the recast RoHS and WEEE Directives​
T +972 4 8525246
F +972 4 8643827
E [email protected]
W www.environment.co.il
Qualified. Canada, 2009
Areas of practice. Environmental regulation; environmental consultancy; environmental litigation.
Recent transactions
Engaged in preventative and compliance counselling as well as environmental litigation (civil, administrative and criminal) for various high profile international companies.

Tzvi Levinson

The Levinson Environmental Law Firm

Image 2 within The practical impact of the recast RoHS and WEEE Directives​
T +972 4 8525246
F +972 4 8643827
E [email protected]
W www.environment.co.il
Qualified. Israel, 1990
Areas of practice. Environmental regulation; environmental consultancy; environmental litigation.
Recent transactions
Engaged in preventative and compliance counselling as well as environmental litigation (civil, administrative and criminal) for various high profile international companies.
For more details of recent transactions, publications, and so on, see full PLC Which lawyer? profile here.