The Restriction on the Use of Certain Hazardous Substances
Directive (known as RoHS) will come into force on 1st July 2006,
but its twin European Directive, the Waste Electronic and
Electrical Equipment Directive (WEEE), has yet to be implemented
into UK law, despite the EU deadline being long passed.
From 1st July, products put on the market in the UK must not
contain any of six listed hazardous substances, measured against
prescribed concentrations. Some are still found in everyday
products.
Cadmium, which can damage the lungs, is often found in cables,
connectors and batteries. Hexavalent chromium, a suspected
carcinogen, is found in some magnetic media. Lead, which can damage
almost every organ, is used in circuit board soldering.
Brain-damaging mercury is sometimes used to illuminate LCD
displays. Polybrominated biphenyls and plybrominated diphenyl
ethers, also suspected carcinogens, make plastics fire
resistant.
The commercial impact of these controls should not be
underestimated. The Netherlands has been ahead of most of its
European neighbours in having an environmentally-friendly regime.
So in 2001, when Sony tried to import over a million PlayStations
to meet the Christmas demand, Dutch border officials sent the
consoles away because the cables contained too much cadmium.
The concept of producer responsibility is nothing new; it's just
an extension of the 'polluter pays' principle. Producers already
work within the Regulations on Packaging Waste, the End-of-Life
Vehicles Regulations and the Agricultural Waste Regulations, while
laws currently being finalised in Brussels will in future make
producers responsible for the batteries they put on the market.
But the WEEE Regulations, when finalised, will be harder to deal
with, both in their complexity and in the extent of the obligations
they place on producers and distributors.
The WEEE rules will make producers responsible for the disposal
of goods ranging from broken iPods to ageing washing machines. They
present a financial incentive to make goods that last for longer,
challenging our throwaway culture. Producers – and that includes
retailers – will have to finance the recovery, treatment and
recycling of equipment. Strict treatment standards and targets for
recovery and recycling will be written into law.
Paul Rice, head of the environmental team at Pinsent Masons, the
law firm behind OUT-LAW.COM, said: "The WEEE Regulations will make
producers responsible for financing the collection, treatment,
recycling and recovery of WEEE, but they will also put an onus on
distributors and retailers to provide free take-back facilities to
consumers."
The WEEE regime will not just apply to new products – producers
will be made responsible collectively for goods already on the
market.
Enough is known that companies can plan for the WEEE regime,
however. Companies can choose now between two routes to achieve
compliance.
"By far the most popular among distributors is to participate in
an industry compliance scheme," says Rice, "but some companies may
prefer to implement their own system for take-back."
Whichever route is chosen, the producer or the compliance scheme
has to register with the Environment Agency and provide it with
data on the amount of electrical equipment which it places on the
EU market. This will form the basis for the calculation of the
company's take-back and recycling obligations.
Rice's team is currently helping companies that produce
high-cost, low volume goods – like manufacturers of medical
equipment – with their own take-back schemes. "Where companies want
to manage their own waste, they typically contract directly with a
waste disposal company that will recycle as much as possible and
arrange safe disposal of the residue."
Consumer-facing companies are more likely to join industry
compliance schemes, such as Valpak (members include BP, Tesco and
Unilever) or the Industry Council for Electronic Equipment
Recycling, or ICER (members include Hewlett-Packard, Philips and
BT). These schemes collect the goods and reprocess on behalf of all
members.
While it is possible that the draft WEEE Regulations could
change before they come into effect in the UK, scheduled for later
this year, Rice says that producers choosing to operate their own
take-back system should revise their standard terms and conditions
now, to place the necessary obligations on those to whom they
supply to return their branded WEEE on exchange or return.
The current draft of the WEEE Regulations is more than 18 months
old. The UK is far behind the EU's timetable: all Member States
were supposed to have implementing legislation for WEEE and RoHS by
August 2004. The UK has delayed its implementing regulations for
WEEE several times but last month the DTI announced that it had
completed its latest implementation review and is holding informal
discussions with companies on its latest proposals.
Rice says that negotiating contracts with WEEE reprocessors now
is also more likely to secure the best prices for long term
collection and reprocessing arrangements. "We expect a rush for
these services immediately prior to implementation of the new
rules," he said.
By comparison to WEEE, RoHS is straightforward but far from
perfect, according to Rice. "Its main stumbling block is the number
of grey areas," he said. "There is no definition of 'placing on the
market', for example and the guidance provided on the Regulations
is difficult to apply to some market situations."
There are circumstances where non-compliant products can be sold
after the 1st July deadline. However, working within these
exemptions and exclusions can be uncertain, leaving companies
unsure about their compliance. To what extent it can they stockpile
non-compliant goods? Government guidance states that companies may
only stockpile finished products; but what constitutes a finished
product? The mere addition of an instruction manual apparently
constitutes a 'further process' for the purposes of RoHS.
What about the maintenance of non-RoHS compliant products,
safely placed on the market before 1st July? What do the
Regulations say about spare parts for these products? Can a company
continue to sell non-compliant products second-hand? The
Regulations say that they can, but does this extend to
demonstration products? And what about military products that are
not destined for military purposes?
These are among the hidden traps and grey areas. "Companies
should not underestimate the potential for falling foul of the
Regulations," says Rice. "They should be addressing now how they
will deal with using non-compliant products after the
deadline."
FREE EVENT: Pinsent Masons will be running a
series of free briefing seminars on WEEE and RoHS during May 2006
in Birmingham, Manchester, Edinburgh, Leeds and London. Speakers
will explain the legal requirements, problematic areas and offering
practical tips.
