By Giles Chappell and Jim Chen EE Times (06/19/2009 7:28 AM EST)

While the U.S. government is struggling with varied approaches to chemical regulatory reform and how to address the growing problem of electronic waste, the European Union is charging ahead with new and revised regulation impacting electronics manufacturers and industries that utilize electrical components.

Specifically, the second half of 2009 will be a key period for companies manufacturing in, exporting to, or distributing in Europe any type of electrical or electronic appliances as new mandatory rules are set to be discussed and agreed upon by the EU.

These new rules will be contained within recast directives on (i) promoting the collection and recycling of waste electrical and electronic equipment ("WEEE") and (ii) restricting the use of hazardous substances in such equipment ("RoHS").

The proposals for recast Directives were originally published by the EU on December 3, 2008 and contain a number of changes that could have potentially significant impact on manufacturers, importers and distributors of regulated products, particularly given the time and resources needed for product redesign and manufacture of products as well as compliance with the extra administrative procedures proposed.

Furthermore, compliance with these proposed laws would be an ongoing process as the list of obligations imposed on manufacturers and other actors in the supply chain is expected to expand over time.

That been said, however, these recasts are still just proposals, and thus there remain opportunities for affected companies and industries to help shape the content of the final texts.

Domestically, changes to RoHS and WEEE are also likely to affect even those companies doing business solely in the United States. For example, California already has RoHS-like laws and may modify them further to take into account any changes in the EU's recast directives.

Other states with similar programs are likely to continue reviewing and refining their programs, while states not as far along are likely to look towards Europe and existing state programs as possible models.

The result will be a hodge podge of U.S. and European regulations that will only complicate compliance in various markets and result in increased compliance costs. In an ironic twist, regulation at the federal level may provide relief in that such new requirements would at least have the potential to override state laws, bringing the United States under a single, unified scheme.

Given the potential for states and the federal government to use the EU programs as models, a review of those programs is prudent. Here are elements of the EU directives:

I. RoHS and proposed changes

The current RoHS directive (2002/95/EC) entered into force on February 13, 2003. Its aim is to reduce the impact of waste from electrical or electronic products by prohibiting the placing on the EU market of such products containing the heavy metals lead, cadmium, mercury and hexavalent chromium or the flame retardants polybrominated biphenyls (PBB) and polybrominated diphenyl ethers (PBDE) in amounts exceeding the permitted maximum concentration values ("MCVs").

The MCVs are: 0.1 percent by weight in homogenous materials for all those substances (except cadmium for which it is 0.01 percent).

RoHS applies to a vast spectrum of products that use electricity, including small and large household appliances, IT and telecommunications equipment, lighting equipment, electrical tools, toys, leisure and sports equipment, automatic dispensers and consumer goods such as radios, TV sets, video cameras and hi-fi systems.

The proposed measures in the recast RoHS Directive would include changes to:

The scope of the directive: The restrictions on the use of substances in electrical equipment would be extended in a staged manner from 2014 to 2017 to cover medical devices and monitoring and control instruments (for example smoke detectors, heating regulators, thermostats, etc.).

Substance bans: Although no additional substances are restricted, the EU would consider as a priority a review of the use of the following four substances with a view to possible inclusion in the list of restricted substances: three phthalate plasticisers (DEHP, BBP and DBP) and a brominated flame retardant (hexabromocyclododecane ("HBCDD")).

Furthermore, a simpler procedure would be introduced into the directive to enable the Commission expand the list of restricted devices in electrical equipment in the future without having to proceed through a completely new legislative process.

The procedure for exemptions: The current 4-year review would be replaced with a 4-year maximum validity period for exemptions with a possibility of requesting renewals; additionally, new exemption criteria have been proposed covering the availability and reliability of substitutes and the inclusion of socio-economic impacts.

Obligations on companies in the supply chain: The proposal would not only place the burden on ensuring compliance with the directive with manufacturers, but would broaden the scope of the directive's rules to include "importers", "distributors" and "authorized representatives"—to be collectively known as "economic operators", meaning the proposed revised directive would place obligations on all of the main actors in the supply chain.

Demonstration of compliance and market surveillance: RoHS would become a CE marking directive; in particular, manufacturers would need to carry out conformity assessments in line with the EU's recently adopted "Marketing of Products" Package (Decision 768/2008 and Regulation 765/2008).

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