Companies are preparing for EU substance restrictions to kick in from July 2019 | White & Case LLP International Law Firm, Global Law Practice

Companies are preparing for EU substance restrictions to kick in from July 2019

The deadline for companies to comply with EU legislation banning certain substances from a wide range of electric and electronic goods is fast approaching. The substance restrictions were previously limited to household appliances and other types of consumer goods, but have been extended significantly, to cover all electrical and electronic equipment, cables and spare parts, with some exceptions.

These restrictions were introduced by EU Directive 2011/65 on the restriction of the use of certain hazardous substances in electrical and electronic equipment ("RoHS 2"). Products that are covered by RoHS 2 but not by the previous rules ("RoHS 1") must comply with the substance restrictions by 22 July 2019. After this deadline, companies can no longer put products on the EU market if they contain any of the prohibited substances above the levels allowed by RoHS 2. The following substances are currently restricted:

  • lead
  • mercury
  • cadmium
  • hexavalent chromium
  • polybrominated biphenyls
  • polybrominated diphenyl ethers

Check whether RoHS 2 could affect your product

RoHS 2 applies to electrical and electronic equipment ("EEE"), which is defined as follows: "equipment which is dependent on electric currents or electromagnetic fields in order to work properly, and equipment for the generation, transfer and measurement of such currents and fields, and designed for use with a voltage rating not exceeding 1 000 volts for alternating current and 1 500 volts for direct current". RoHS 2 applies not only to finished goods but also to components.

Some types of EEE have been excluded from the scope of RoHS, meaning that they do not need to comply with the substance restrictions by the July 2019 deadline. Examples of excluded EEE include photovoltaic panels, large-scale stationary industrial tools, large-scale fixed installations, and equipment specifically designed to be installed in these applications. Although the Commission has issued guidance on what products are excluded, this is not always a straightforward assessment.

Be mindful of when your product is "placed on the market"

In theory, EEE that was not covered by RoHS 1, and was already placed on the market before the July 2019 deadline, does not need to comply with the substance prohibitions of RoHS 2. It is therefore very important to determine when your product is deemed to be "placed on the market" in the EU for the first time. Be aware that the EU concept of placing on the market does not only concern supply to the end customer.

If your product is covered by RoHS 2, make sure it complies by July 2019, or that you have a substance exemption

If EEE falls within the scope of RoHS 2, it must comply with all of the substance restrictions unless it benefits from a substance exemption. Substance exemptions allow restricted substances to be used in certain specific technical applications in amounts above the tolerance levels.

For example, this could apply when there are no reliable substitutes for the restricted substance, or where it is "scientifically or technically impracticable" to replace the restricted substance via design changes. The exempted applications are listed in the Annexes to RoHS 2, and it is possible for companies to apply to the European Commission to have new exemptions granted.

However, the procedure for the grant of an exemption can be long, and currently takes around 18-24 months to complete, so if a product is covered and could be eligible for a substance exemption, it is advisable to begin the process as soon as possible.

 

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