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This update is also available on our Japanese language site.

The California Department of Toxic Substances Control (DTSC) issued emergency regulations on December 22, 2006 to restrict allowable concentrations of lead, mercury, cadmium, and hexavalent chromium in nine categories (originally only eight) of video display electronics devices.  A California law enacted in 2003 (SB20; Cal. Health and Safety Code § 25214.10) had directed DTSC to issue regulations that mirror similar, but not identical, prohibitions on sale of electronics in the European Union (EU) under directive 2002/95/EC.  (The EU’s directive is usually referenced as the restriction on the use of certain hazardous substances in electrical and electronic equipment or “RoHS” for short.)  Under California law, devices containing the substances in excess of allowable maximum concentration values (MCVs) may not be sold or offered for sale in the state if the EU would prohibit those transactions.  To implement California’s requirements in light of the recent finalization of the RoHS directive, DTSC took up particulars of the effective dates and potential exemptions in its rules.

By design, California’s requirements differ somewhat from those addressed in the EU’s directive. For example, the EU RoHS directive regulates the content of a much wider range of electronic products than does California.  In California, only selected video display products with screens greater than 4 inches measured diagonally are subject to DTSC’s regulations.[1] The EU directive restricts two additional substances used as flame retardants, which are not covered under California’s requirements.  California regulations also exempt a video display device that is contained within, or a part of, a piece of industrial, commercial, or medical equipment, including monitoring or control equipment.  There is much uncertainty concerning the scope of this exemption and the meaning of its key terms. 

However, notwithstanding those differences, in many respects, California and the EU’s requirements are the same for those products to which both apply.  DTSC’s regulations establish the same MCVs as the EU at 0.1% by weight for lead, mercury, and hexavalent chromium and at 0.01% for cadmium.  Under the EU RoHS, several special exemptions to the MCV restrictions are allowed.  To help facilitate compliance in a global marketplace, California’s law and DTSC’s new emergency rules implementing it automatically adopt relevant European exemptions.  Thus, for example, EU exemptions for lead in CRT glass or in some plasma display panels will be carried over to California.

Perhaps of greatest interest under DTSC’s new rules for California is the setting of the effective date for the prohibitions.  DTSC previously vetted three alternatives in this regard, but ultimately accommodated practical business considerations by allowing the prohibition to apply only to covered products manufactured after January 1, 2007.  Thus video display products on the shelf or in retail inventory, already made and purchased but not yet shipped or received, or which are otherwise made and in pipelines of international commerce will not be subject to California’s emergency rules.  This consideration grants distributors, suppliers, and retailers an additional opportunity to secure guarantees of compliance with MCVs for lead, mercury, hexavalent chromium, and cadmium regarding products that will come into their hands in the future.  Companies will also have some flexibility to use and sell products made before the effective date but that require refurbishment, replacement or repair.

During 2007, DTSC intends to perfect and round out the California regulatory scheme in more detail.  Those actions may expand the ways in which products are regulated or further clarify the adoption of EU or California RoHS exemptions.

The emergency rules also coincide with promulgation of several other regulations from the EU, U.S. EPA, and California agencies focused on electronic products recycling designed to minimize or prohibit “E-waste” generation and disposal.  They coincide also with the implementation of the new (and broader) RoHS rules issued by China.  Morrison & Foerster’s Product Liability and Environmental Law practice groups have considerable experience advising electronic equipment manufacturers, distributors, suppliers, retailers, and recyclers in all aspects of electronic product and waste regulation, as well as in other areas of environmental law and with respect to the siting of their facilities.  Our offices throughout California, in Europe where these directives originated, and in Asia where many products are made, provide regular counseling on the commercial arrangements necessary to engage in global business cost effectively and with attention to jurisdictional requirements.

While the precise penalties and remedies to be imposed in the event of violation of the new California regulations have yet to be reported, companies would be well advised to consult with legal counsel to ensure that their existing compliance programs take account of the new regulations for relevant video display products distributed within the state.

 

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Footnotes

 

1:  The regulated products are cathode ray tube containing devices (CRT devices), cathode ray tubes (CRTs), computer monitors containing CRTs, laptop computers with liquid crystal displays (LCDs), LCD containing desktop monitors, televisions containing CRTs, televisions containing LCD screens, plasma televisions and portable DVD players with LCD screens.