European Union (EU) Directive 2002/95/EC (the RoHS Directive) restricts the use of certain heavy metals and other hazardous substances in electrical and electronic equipment by requiring EU member nations to prohibit the marketing of equipment containing such substances as of July 1, 2006. The RoHS Directive was adopted by the European Parliament and the Council of the EU in 2003 along with the related Directive 2002/96/EC on waste electrical and electronic equipment (WEEE). Exemptions for very low concentrations of the restricted substances are expected to be approved in the near future, and other proposed amendments that would affect the scope of the Directive are currently under consideration.
One significant feature of the RoHS Directive is its focus on the fabrication and content of products, rather than on the proper disposal of waste materials, a traditional area of environmental regulation. Not only does the Directive impose significant new burdens upon marketing of products in EU member nations, but it may be expanded to cover additional substances and products in the EU and sets a precedent for restrictions and prohibitions in other jurisdictions. Consequently, it is important for producers of potentially affected products to evaluate the requirements of the RoHS Directive carefully and determine whether any proactive steps should be taken. Suppliers of restricted substances will also need to understand the ramifications of the RoHS Directive.
Under the RoHS Directive in its current form, EU member nations must ensure that new electrical and electronic equipment put on the market as of July 1, 2006 and thereafter does not contain the following substances: lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls (PBBs) and polybrominated diphenyl ethers (PBDEs).
The Directive applies to electrical and electronic equipment (EEE), which is defined as equipment that is dependent on electrical currents or electromagnetic fields in order to work properly, as well as equipment for the generation, transfer and measurement of such currents and fields, where such equipment falls within any of 10 categories and is designed for use with a voltage rating not exceeding 1,000 volts for alternating current and 1,500 volts for direct current. The equipment categories are:
large household appliances (such as refrigerators, washing machines, stoves, microwaves and air conditioners)
small household appliances (such as coffee machines and vacuum cleaners)
information technology and telecommunications equipment (such as centralized data processing equipment, personal computing equipment, notebook and notepad computers, copying equipment, printers and telephones)
consumer equipment (such as radios, televisions and video recorders)
lighting equipment, including light bulbs, but excluding fluorescent luminaires for households and filament bulbs
electrical and electronic tools, other than large-scale stationary industrial tools
toys and leisure and sports equipment
electric light bulbs
luminaires in households
EU member nations were required to make changes to their laws, regulations and administrative provisions as necessary to comply with the RoHS Directive by August 13, 2004, although a number of nations have not completed this process. However, national restrictions or prohibitions regarding the specified substances in EEE that were adopted before the RoHS Directive and are consistent with EU legislation may be maintained until July 1, 2006.
The burden of complying with the RoHS Directive falls upon producers. This includes any party that manufactures and sells EEE under its own brand, resells under its own brand EEE produced by another supplier or imports or exports EEE on a professional basis into an EU member nation. Manufacturers of the materials and components used to fabricate EEE, as opposed to the EEE itself, do not constitute producers under the RoHS Directive. However, implementing legislation adopted by EU member nations could conceivably impose some requirements on those suppliers in order to ensure that the equipment manufacturers meet their obligations.
Exemptions for Low Levels of Hazardous Substances
It is expected that the European Commission will establish low concentration exemptions to the RoHS Directive in the near future. These “maximum concentration values” would be 0.1 percent by weight (1000 mg/kg or 1000 ppm) in homogeneous materials for lead, mercury, hexavalent chromium, PBB and PBDE, and 0.01 percent by weight (100 mg/kg or 100 ppm) in homogeneous materials for cadmium.
“Homogeneous material” is expected to be defined as a material of uniform composition throughout that cannot be mechanically disjointed into different materials by such means as unscrewing, cutting, crushing, grinding and abrasive processes. It is expected that the maximum concentration value will apply to each restricted substance and to each homogeneous material, and that the exemption will apply regardless of whether such substance is naturally present or intentionally added.
The RoHS Directive does not apply to spare parts for the repair or reuse of electrical and electronic equipment put on the market before July 1, 2006. In addition, the RoHS Directive exempts a number of uses of the restricted substances. These include:
lead as an alloying element in steel, aluminum or copper containing up to specified percentages of lead by weight
lead in high melting temperature type solders (i.e., tin-lead solder alloys containing more than 85 percent lead), lead in solders for servers, storage and storage array systems and lead in solders for network infrastructure equipment for switching, signaling and transmission as well as network management for telecommunication
lead in electronic ceramic parts (e.g., piezoelectronic devices)
cadmium plating, except for applications banned under a particular EU Directive
mercury in several categories of fluorescent and other lamps
lead in glass of cathode ray tubes, electronic components and fluorescent tubes
hexavalent chromium as an anti-corrosive agent in the carbon steel cooling system in absorption refrigerators
A number of revisions of the first three exemptions, as well as additional exemptions, have been evaluated and are expected to be approved. The proposed revisions of the first three exemptions are as follows:
lead based alloys containing 85 percent by weight or more lead
lead in solders for servers, storage and storage array systems and network infrastructure equipment for switching, signaling and transmission, as well as network management for telecommunications
cadmium and its compounds in electrical contacts and cadmium plating, except for applications banned under a particular EU Directive
The new exemptions would encompass lead used in compliant pin connector systems, lead as a coating material for the thermal conduction module c-ring, lead and cadmium in optical and filter glass, lead in solders consisting of more than two elements for the connection between the pins and the package of microprocessors with a lead content of more than 80 percent and less than 85 percent by weight and lead in solders to complete a viable electrical connection between semiconductor die and carrier within integrated circuit Flip Chip packages.
Future Expansion of/Exemptions to the Directive’s Scope
The RoHS Directive sets forth procedures for implementing additional categories of substance restrictions for EEE. If the European Commission proposes the prohibition of additional substances, the European Parliament and the Council of the EU must act on the proposal in accordance with specified principles as soon as relevant scientific evidence is available. In addition, the European Commission is required to consider expanding the scope of the RoHS Directive to include medical devices and monitoring and control instruments, and this evaluation process will begin later this year. The Commission also must consider adding to the list of prohibited substances on the basis of new scientific information and consideration of environmental and human health impacts and the feasibility of replacing hazardous substances and materials used in EEE, taking the precautionary principle into account.
The RoHS Directive also requires amendments to the Directive’s exemptions, as justified by scientific and technical considerations, for the following purposes: establishing maximum concentration values up to which the presence of the prohibited substances is allowed; exempting materials and components of EEE if elimination of or substitution for the prohibited substances is technically or scientifically impracticable or if the negative environmental, health and/or consumer safety impacts resulting from substitution are likely to outweigh the environmental, health and/or consumer safety benefits thereof; and reviewing each existing exemption at least every four years to determine whether it can be eliminated, based on consideration of the possibility of design changes or substitution of materials or components and associated environmental, health and/or consumer safety impacts and benefits. As noted above, it is expected that certain low concentration exemptions will be established in the near future.
Before amending the Directive’s exemptions, the European Commission must consult, and consider comments of, producers of EEE, as well as recyclers, treatment operators, environmental organizations and employee and consumer associations. A number of proposed exemptions that were submitted by EU member nations and by industry are currently undergoing technical review.
Related U.S. Restrictions and Proposals
The state of California has already enacted legislation prohibiting the sale, after January 1, 2007, of video display devices that are prohibited for sale in the EU under the RoHS Directive. Several states, including California and New York, have enacted legislation that prohibits the manufacture and distribution of products containing more than de minimis levels of certain polybrominated fire retardants. Other states in the United States, such as Connecticut, Massachusetts, Minnesota and Washington, are considering legislation that could result in similar types of restrictions and prohibitions on certain hazardous substances in products.
Significance of RoHS Directive
Unlike many EU initiatives, the RoHS Directive regulates the fabrication and content of electrical and electronic products and not simply the proper disposal of discarded products and waste materials. Moreover, the European Commission must consider expansion of the Directive’s scope to cover both additional substances and additional equipment categories. It is therefore important for producers of EEE and of other potentially affected products to evaluate the prohibitions and exemptions of the RoHS Directive carefully, to track future developments with respect to the RoHS Directive and to consider whether to take advantage of opportunities for influencing decisions concerning the scope, interpretation and amendment of the Directive and similar initiatives in the United States and other countries. In addition, producers will need to obtain information concerning materials and components from their suppliers and to determine the degree to which they wish to rely on suppliers’ declarations or independent testing to meet the RoHS Directive’s requirements. Suppliers, in turn, will need to recognize the standards to which their producer customers will be held. Finally, producers will have to determine whether the mandates of the RoHS Directive will be met by the marketing of separate product lines within EU member nations or by modification of all products, regardless of where they are sold, to achieve compliance with the Directive.