Client Alert

European Technology Law: The RoHS Directive

7/20/2006

In previous updates, we have highlighted various new rules applicable to producers of electrical and electronic equipment sold in the European Union. Manufacturers, importers and distributors of such equipment (or products incorporating such equipment) need to amend their procedures to comply with the new rules. In this update, we discuss developments in the so-called "RoHS" rules affecting certain substances contained within electrical and electronic equipment.

RoHS Comes into Force

On 1 July 2006, Directive 2002/95/EC on the restriction of the use of certain hazardous substances in electrical and electronic equipment (the "RoHS" Directive) came into force across the EU.  It is now prohibited to put electrical and electronic equipment (EEE) on the market which exceed the maximum permitted concentrations of lead, mercury, cadmium, polybrominated biphenyls (PBB) or polybrominated diphenyl ethers (PBDE).  National enforcement authorities in the Member States will have powers to ban non-compliant products and impose fines.

There is no further transitional or grace period.  As the UK RoHS enforcement agency, the National Weights & Measure Laboratory (NWML), put its plainly on its website: "You place non-compliant product on the market at your own risk."

RoHS Enforcement Guidance Published

Discussions within the "EU RoHS Enforcement Authorities Informal Network" have led to the publication of a RoHS Enforcement Guidance Document.  While the document is non-binding, its aim is to assist EU Member States with national enforcement of the RoHS Directive and to provide clarity to the industry on how producers may demonstrate compliance.  The document considers that an effective and cost efficient compliance and enforcement regime should be based on three principles: (1) a common interpretation across EU Member States of which products fall within the scope of the RoHS Directive, (2) a general presumption that products are compliant, and (3) a process of self-declaration by producers.  Enforcement should be based on authorities selecting individual EEE for further investigation.

UKRoHS Guidance Updated

The UK Department of Trade and Industry (DTI) has published updated Guidance on the UK RoHS Regulations.  While, strictly speaking, this guidance applies only in the UK, the DTI’s previous guidance has attained an unofficial status as a more general guide to the application of the RoHS Directive throughout the EU.  This is true especially for the guidance on the "due diligence" compliance measures that producers should take to ensure their EEE products are compliant.

European Commission Clarifies Scope of the DecaBDE Exemption

The European Commission has recently clarified the scope of the exemption for decaBDE in polymeric applications in a letter of opinion.  While this is a non-binding document, it should provide some certainty around the particular issue it addresses.

Under the RoHS Directive, the maximum concentration of polybrominated diphenyl ethers (PBDE) in EEE is 0.1% by weight in any homogeneous material (Decision 2005/618/EC).  One of these chemicals, decaBDE, is exempted from this limit for use in polymeric applications (Decision 2005/717/EC).

However, the European Commission notes that commercial decaBDE contains around 3% impurities of nonaBDE.  Since commercial decaBDE is often used in high concentrations in polymers this can result in nonaBDE concentrations above the tolerated maximum concentration level.  For example, using 10% of decaBDE would result in 0.3% nonaBDE.

In its opinion letter, the European Commission makes it clear that – with the exception of decaBDE – all PBDEs, including nonaBDE that is introduced into a material as part of decaBDE, have to comply with the maximum tolerance levels set by the RoHS Directive.  Homogeneous materials containing more than 0.1% by weight of nonaBDE are therefore not RoHS compliant.

The Commission opinion can be found at http://www.endseuropedaily.com/docs/60628b.pdf

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