Changes to EU laws affecting electrical and electronic appliances: UK government publishes consultation on RoHS & WEEE revisions

Recently, the UK Government Department for Business, Enterprise and Regulatory Reform ("BERR") has published an industry consultation on the European Commission's proposals to revise Directive 2002/95/EC on the Restriction of the use of certain Hazardous Substances in electrical and electronic equipment ("RoHS") and Directive 2002/96/EC on Waste Electrical and Electronic Equipment ("WEEE"). The proposed revisions to RoHS and WEEE were originally published by the EU on December 3, 2008. Several provisions in each of the draft proposals will be of direct relevance and interest to EU and non-EU manufacturers, importers, and distributors of electrical goods in that the proposals expand the scope of covered products and the restricted substances used in those products, as well as increasing burdens on regulated entities. Interested parties, EU or non-EU based, are therefore urged to comment on the proposals and how those changes may ultimately be adopted by the EU, before the consultation closing date of May 13, 2009.

While other, more informal, opportunities exist for stakeholders to make representations to EU authorities, BERR's official consultation comes at a key moment in the drafting process. This is because the UK government is expected to take on board comments received from this consultation when finalizing its own negotiating position for the discussions on the content of the final texts which will take place between the EU Institutions later this year.

Companies in the electronics and information, communications and technology (ICT) industries will recall that the current RoHS Directive entered into force on February 13, 2003. It restricts the use of lead, cadmium, mercury and hexavalent chromium as well as two flame retardants in electrical and electronic equipment. RoHS currently only applies to manufacturers of end products, i.e. only the producers are the party responsible for compliance.

The proposed changes in RoHS "2" would, amongst other things:

• extend the restrictions on the use of substances in electrical equipment to medical devices from 2014 and industrial monitoring and control instruments (e.g. smoke detectors, heating regulators, thermostats, etc.) from 2017 - both of which are currently excluded from the remit of the Directive;
• review the use of hexabromocyclododecane (HBCDD) and the phthalates DEHP, BBP and DBP, which are therefore likely to join the list of restricted substances;
• introduce a simpler procedure to expand the list of restricted substances in electrical devices in the future;
• make RoHS a CE marking Directive which would mean, in particular, that companies would have more responsibility to prove that their product is RoHS compliant before they place it on the EU market; and
• would not only place the burden on ensuring compliance with the Directive with manufacturers, but would broaden the scope of the Directive's rules to include "importers", "distributors" and "authorized representatives" - to be collectively known as "economic operators", i.e. the proposed revised Directive would place obligations on each actor in the supply chain.

The potential impact on the electronics industry of these proposed changes could be of great significance, in particular because of the time period and resources needed in order to change the make-up of a product so that it becomes RoHS compliant. Furthermore, this could be an ongoing process as the list of restricted substances is expected to expand over time.

With regard to WEEE, the current Directive also entered into force on February 13, 2003. It requires the collection of waste electrical and electronic equipment and the recovery and re-use or recycling of waste collected.

The proposed changes in WEEE "2" would, amongst other things:

• harmonize the registration and reporting requirements for producers and make national registers of producers inter-operational - this would mean that producers doing business in more than one Member State would be required to just register and report in one Member State only;
• include recovery and recycling/re-use targets for medical devices;
• where appropriate, require EU Member States to encourage producers to finance all the costs of separate collection; and
• allow producers to show to consumers the cost of collection, treatment and disposal of products at the time of sale - the EU authorities hope that this kind of information will lead to more environmentally friendly purchases by consumers.

In order for the RoHS and WEEE revisions to become law, the European Parliament, the European Commission and the 27 EU Member States have to reach an agreement on the texts of the Directives. Discussions between these institutions are expected to take place between September and December of this year. The Directives are then likely to be adopted in their final form during the course of 2010 and are likely to take effect from the beginning of 2012. This consultation by the UK Government is therefore a key moment for potentially impacted companies, particularly those in the electronics and ICT industries, to air their views on the proposed changes.