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.
