RoHS – a recap
Key implications of the 2006 RoHS directive included restrictions on the use of lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyl and polybrominated diphenyl ethers in Electronic and Electrical Equipment (EEE) if put on the market after 1st July 2006. Much literature about RoHS will list these substances as banned but that is in fact incorrect. They can be used but only in minute concentration values of 0.1% (0.01% for cadmium) by weight in a homogenous material (one that cannot be mechanically broken down into different materials). However, these substances can be used in higher concentrations if they fall under specific exemptions, or if they are used to upgrade maintain or repair EEE placed on the market before 1st July 2006.
Another important element of RoHS was that responsibility for compliance was laid firmly with the producers. So this included manufacturers selling EEE under their own brand, anyone selling products under their own brand that were produced by others and anyone who imported / exported EEE into an EU member state.
The recast aims to provide clarity on many of the vague definitions from the original directive as well as providing specific enter into force dates on categories 8 and 9.
RoHS scope – what’s included?
So in addition to the original RoHS legislation, what changes does the recast bring? Perhaps the most wide-reaching change will be the introduction of an open scope which is due eight years after the recast is published in the Official Journal of the EU (2019). The new Category 11 will include all products not captured in
Categories 1 to 10, unless specifically excluded. While not the choice of all Member States, the open scope was one of several compromises reached to guarantee a first reading approval.
Previously RoHS scope applied to electrical and electronic equipment that is dependent on electric or electromagnetic fields in order to work properly. Now the recast states electronic equipment that is dependent on electronic or electromagnetic fields to fulfil at least one of its intended functions. Therefore a gas cooker which has an electric clock would now fall within scope where previously it would not. This small change could widen the amount of equipment that will now fall within scope.
There will be two reviews by the Commission within three years, firstly to look at the scope itself and then to look at additional substance restrictions.
Restricted substances also play a major part in the recast with four identified for priority assessment (within three years) – three plasticisers (BBP, DBP, DEHP) and a flame retardant (HBCDD). In addition the methodology for the identification of substances for future restriction will also be reviewed. Restriction could well be based on the REACH regulation approach of lengthy risk assessment of dangers to human health and environment. This will replace the RoHS methodology based on identifying hazards and the possible use of available alternatives.
Exclusions and exemptions
As the scope widens so, inevitably, does the number of exclusions and exemptions that can be applied. The comprehensive list is available here. With regards to exemptions for the RoHS recast, a new annex IV has been created which contains 39 specific exemptions for categories 8 and 9. Also, the four year exemption review period for exemptions has been scrapped and replaced by an automatic expiry of exemptions unless renewed. Categories 1 to 7 and 10 will be valid for a maximum of five years whilst categories 8, 9 and 11 will be valid for seven years, with applications for renewal being made at least 18 months before expiry. It appears however, that final decisions are yet to be made with regard as to the processes involved, as the commission has a mandate to establish the detailed rules required for new requests. It is also important to remember that many of these exemptions might be incorporated into the2019 open scope review.
One change that will have a large-scale impact on the electronics industry will be the definition of research and development (R&D) equipment. There are ongoing concerns over the status of ‘dev kits’, in particular low cost, open PCB evaluation kits. Previous enforcement guidelines specified that R&D equipment would be in scope if they transfer data (falling into category 3). However, after prolonged protest from manufacturers the recast now states that equipment will be out of scope if used solely for R&D purposes. So whilst a PCB kit will be out of scope, a programmer in an enclosure for production quantities will be in scope. As before though, the uncertainty over the 2019 open scope review appears and suggests there is a good chance that R&D will again fall into scope.
Manufacturers, importers and distributors will all be affected by changes to CE marking from the RoHS recast. CE obligations will apply immediately to products, currently in scope, once the recast enters into force. It will also apply to currently excluded parts once they fall into scope, for example when an exemption expires.
Obligations require that CE mark equipment and cables must be sold separately; declarations of conformity are required to show compliance; technical files are required and must be kept for ten years; and that this information should not be removed from websites during this time.
Typical CE requirements requested as part of the RoHS recast are designed to verify that products are CE marked and supplied with required documentation. The recast sets out that manufacturers will be audited where appropriate, checking that they carry out sample testing, keep registers of complaints, non-conforming equipment and product recalls. It is advised that audits should be on a sample basis with new products upon receipt. Other responsibilities include checking that products have the correct labels (where manufactured outside Europe, it is the importer’s responsibility to label); Distributors must not rely purely on declarations from their suppliers; Technical files need to built up and kept for ten years (including obsolete) and include supplier declarations of compliance, data supplied by the manufacturer/importer and the results of any distributor assessments. Finally distributors must inform enforcement authorities if any non-compliant equipment ‘presents a risk’. They must then take corrective action and all assessments must be carried out and documented.
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