Whether it is the latest phone, computer, tablet or kitchen device that you are after, electrical goods are sure to make an appearance on all our Christmas lists but what materials are used in them and are they legal?

Christmas is almost upon us and of course the first thing you’ll be thinking about as you hit the shops is whether that gadget you’re forking out for has lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls or polybrominated diphenyl ether (together the “Restricted Substances”) in it and whether the quantities are acceptable.

What you might not be aware of is that the goods you buy for Christmas may not be legal in the EC a month later. This is because in the New Year the regulations which restrict the use of the substances listed above are changing.

You’d be surprised at the difference a definition makes

The key test for whether the restrictions apply to your product is whether it falls within the definition of electrical or electronic equipment.  Electrical and electronic equipment (or “EEE”) used to be defined as “dependent” on electricity, and “dependent” meant that the device needed electricity to perform its primary function.   In the UK from the 2nd January 2013 this last part is changing.  The snappily entitled “Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Directive 2011” (the “New Directive”) came into force this year, and member states have until 3 January 2013 to implement it.  The definition of dependent in the new directive now covers devices that are dependent on electricity, even if they are only dependent on electricity for their secondary function.  This means that lots of devices which would not previously have fallen within the regulations will be caught if put onto the market in the New Year.

Manufacturers and importers of products that use electricity in any way will have to ensure that their device does not contain more than 0.1% of the Restricted Substances listed above (other than cadmium, which is restricted to 0.01%) in any component of homogenous material (and what constitutes a separate component of homogenous material is something which may need to be determined by legal compliance experts).

The definition of EEE is not the only thing to have broadened: further categories of devices now come under the scope of the regulations, the most crucial addition being a catch all category.  This addition effectively means that any product which meets the definition outlined above will be subject to the regulations unless it falls within an exemption.

Am I exempt?

Given the general thrust of the above, to greater regulation, you will not be surprised to hear that the exemptions are being cut down as well.  Here the main change is that exemptions to the above regulations will expire automatically and to renew the exemption an application must be made in advance.

This means that manufacturers that depend on one of the exemptions will have to be aware of the expiry date of that exemption, consider whether they wish to prepare an application for the continuance of that exemption (which may require teaming up with other companies that also rely on the exemption in order to share the cost of preparing the application) and prepare and plan for the potential expiry of the exemption which they rely upon.

Who is responsible?

Previously, the main party which had to worry about the regulations were the producers of the product.  In an effort to ensure that there is always someone to be held to account, importers, distributors and authorised representatives now also have responsibilities alongside the manufacturers (who have to keep a register of non-conforming EEE and product recalls, and keep distributors informed of them in addition to the responsibilities listed below).

The responsibilities of manufacturers, importers, distributors and authorised representatives will include:

  • Drawing up an EU Declaration of Conformity that must identify the EEE, give a name and address for the manufacturer, quote the directive that it relates to (which, from the start of 2013, will be the New Directive), refer to the standards or technical specifications that are relevant to conformity and be signed and dated;
  • Drawing up other technical documentation; Keeping both the Declaration of Conformity and technical documentation for ten years;
  • Ensuring that the CE marking is properly marked on the device; and
  • Being able to produce the documentation and information necessary to show that they have conformed with the regulations.

January detox

The EC are clearly keen to reduce our dependence on the Restricted Substances and have nudged the statutory framework in this direction by including more devices within the remit of the regulations, making falling within an exemption less certain and potentially expensive and by making more parties responsible for compliance.  The one area where they have not increased the ambit of the regulations is in the nature and amount of the Restricted Substances.