On 2 January 2013, the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012 (RoHS 2) came into force in the UK. As previously reported on our blog of 18 May 2012, RoHS 2 implements Directive 2011/65/EU¹ and repeals and replaces the RoHS 2008 Regulations². RoHS 2 places new and extended duties on manufacturers, importers and distributors of electrical and electronic equipment (EEE), with immediate effect.

Like its predecessor, RoHS 2 continues to prohibit EEE containing certain substances (as outlined below) in the specified concentrations, from being placed/made available on the market in the EU on or after 2 January 2013: lead, mercury, hexavalent chromium, polybrominated biphenyls (PBB), and polybrominated diphenyl ethers (PBDE), in concentrations above 0.1%; and cadmium in concentrations above 0.01%.

However, RoHS 2 makes substantial changes to the regime, including a number of new obligations and a different classification of obligated parties, with consequent changes for each of them. The key changes are set out below.

Scope

The definition of EEE now includes cables and spare parts for their repair, reuse, and updating of functionalities or upgrading of capacity of EEE. However, certain obligations of manufacturers and importers will not apply in respect of cables and spare parts for EEE placed on the market before 1 July 2006, or before the relevant applicable date for new categories of EEE as described below.

RoHS 2 has excluded the following EEE from its scope: equipment necessary for the protection of the essential interests of the security of Member States; equipment designed to be sent into space; large-scale stationary industrial tools; large-scale fixed installations; active implantable medical devices; photovoltaic panels; means of transport for persons or goods (excluding electric two-wheeled vehicles); non-road machinery for professional use and equipment designed for the purposes of research and development.

RoHS 2 continues to apply to the categories of EEE previously covered by the RoHS 2008 Regulations³. Additionally new categories of EEE have been included; most of these new categories have a deferred date of application in respect of their compliance obligations, as set out below:

(i) Automatic dispensers (placed on the market on or after 2 January 2013)
(ii) Medical devices (placed on the market after 22 July 2014)⁴
(iii) Monitoring and control instruments (placed on the market after 22 July 2014)
(iv) Industrial monitoring and control instruments (placed on the market after 22 July 2016)
(v) Other EEE not covered by any of the categories above (placed on the market on or after 2 January 2013)

In addition to the above deferred deadlines, EEE that was outside the scope of the RoHS 2008 Regulations and has already been placed on the market will be able to be made available on the market until 22 July 2019, even if it does not comply with the requirements of RoHS 2.

Obligations

A pervasive change under RoHS 2, is its imposition of obligations on parties in the supply chain. Previously, all obligations were imposed on “producers” even though this definition included different actors in the supply chain. RoHS 2 however, identifies and classifies different parties in the supply chain and imposes distinct obligations accordingly. The following parties are defined under RoHS 2: manufacturer, distributor, importer and authorised representatives.

The bulk of the obligations under RoHS 2 are imposed on manufacturers, however under certain circumstances importers and distributors could also be obligated to comply with manufacturer-specific obligations.

Under RoHS 2, manufacturers (and their authorised representatives) have to comply with the following new obligations with immediate effect from 2 January 2013.

• Draw up technical documentation, in line with Module A of Annex II to Decision 768/2008 on a common framework for the marketing of products.
• Draw up an EU declaration of conformity, which must be translated into the language required by the Member State where the EEE will be made available.
• Affix a CE marking to the EEE.
• Ensure that the EEE is able to be identified by type, batch, serial number or other element and indicate the manufacturer’s name, registered trade name or trademark and a single contact address.

The following new obligations also apply to manufacturers but only in respect of in-scope EEE with immediate effect from 2 January 2013:

• Keep a register of non-compliant EEE which has been placed on the market or which has been recalled.
• Keep technical documentation for 10 years.
• Where a manufacturer has reason to believe that provisions of RoHS 2 have not been complied with in respect of the EEE it has placed on the market, a manufacturer must immediately take the necessary corrective measures to withdraw or recall the EEE as appropriate, and inform the market surveillance authority and competent national authorities of the relevant Member States.

Importers must comply with the requirement set out below, with immediate effect from 2 January 2013:

• Ensure that the EEE is marked with the importer’s name, registered trade name or trademark and its contact address.

Additionally, importers' obligations that apply with immediate effect from 2 January 2013 to in-scope EEE include the following:

• Not to place non-compliant EEE on the market.
• Ensure that manufacturers have complied with their respective obligations before placing the EEE on the market.
• Keep a register of non-compliant EEE which has been placed on the market or which has been recalled.
• Inform the manufacturer and the marker surveillance authority if it has reason to believe that the EEE it was intending to place on the market does not comply with RoHS 2. Additionally it has the same obligation as a manufacturer in respect of the EEE it has already placed on the market and which it believes is non-compliant, e.g. take corrective measures and inform the market surveillance and competent national authorities.
• Where an importer places EEE on the market under its name or trademark it must comply with all the duties of manufacturers.

Distributors’ obligations apply with immediate effect from 2 January 2013 and include the following:

• “Act with due care” when making EEE available on the market by verifying that the requirements of RoHS 2 have been complied with, such as that the CE marking has been affixed on the EEE, information identifying the manufacturer or importer has been included and that the EEE is accompanied by the required documentation in the relevant language.
• Inform the importer or manufacturer and the market surveillance authority if it has reason to believe that the EEE it intends to make available to the market does not comply with RoHS 2. It must also take corrective measures or recall the EEE that it suspects is non-compliant and that has been made available to the market, as well as inform the market surveillance authorities and the relevant national competent authority.
• In circumstances where a distributor has modified the EEE already placed on the market so that compliance with the general prohibition may be affected, it will have to comply with all duties of a manufacturer.

Penalties

Non-compliance with the overarching prohibition on placing non-compliant EEE on the market is a criminal offence punishable by up to an unlimited fine. Non-compliance with other obligations under RoHS 2 is an offence punishable by a fine not exceeding £5,000⁵.

1. Directive 2011/65/EU on the restriction of the use of certain hazardous substances in electrical and electronic equipment.
2. Restriction of the use of certain hazardous substances in electrical and electronic equipment regulations 2008 (SI 2008/37).
3. Large and small household appliances, IT and telecommunications equipment, consumer equipment, lighting equipment, electrical and electronic tools and toys, leisure and sports equipment.
4. Obligations apply to in vitro diagnostic devices after 22 July 2016
5. In respect of England and Wales.

Client Alert 2013-009