Recognise the symbol?

As consumers we are all now familiar with the “crossedout” wheelie bin symbol which appears on all electrical and electronic goods put on sale since 13 August 2005 and which will also identifies the producer.

But many consumers will not be aware what this really means vis à vis the obligations of the retailer from which they have bought the product or how the manufacturer of that product is affected.

There has been much discussion by manufacturers as to whether their products are covered or not by the WEEE1 Directive (which sets minimum collection, recycling and recovery targets to reduce the quantity of waste discarded – see table at end of this article as to current product categories and targets) and RoHS2 Directive (which restricts the use of certain hazardous substances in equipment) and interpretation issues, for example for the exclusion of fixed installations or whether electricity is needed for the primary function of the equipment3. Nevertheless, there has, in the UK at least, been very limited litigation as a result of this legislation. There have also been major concerns as to how the collection and recycling obligations would be financed. The latter was one of the main reasons the UK was late in implementing the two Directives. This contrasts with the number of prosecutions that have been brought in the UK over the disposal of waste in general in breach of the waste management regulations, now the Environmental Permitting Regulations 2007.

This is also surprising, as the European Commission has confirmed that the two Directives have not been as successful as it had hoped in encouraging the collection and recycling of waste electrical and electronic equipment or in ensuring certain substances are not contained in such products. In addition the lack of harmonisation in their implementation and market surveillance between EU Member States has been an issue.

So, almost 5 years after the WEEE Directive entered into force, 6 years in the case of RoHS Directive, the Commission has published proposals4 as to revisions to be introduced in an attempt to improve, simplify and also harmonise these rules with other EU legislation (for example the REACH5 regulation). The aim is that the original objectives of reducing the impact on the environment of our increasing reliance on electrical and electronic equipment and protecting human health can be met.

Have the Directives been successful?

The Commission has stated that currently only about a third of waste electrical and electronic equipment is reported as being treated in accordance with the WEEE Directive. This means, therefore, that twothirds is still going to landfill, either in or outside the EU. Illegal trade of electrical waste to non-EU countries is also still widespread. In addition the EU has confirmed that many electrical and electronic products are not complying with the substance restrictions set out in the RoHS Directive, partly due to enforcement difficulties.

The EU figures reveal that, in weight terms, each year the equivalent of 80% of the EEE put on the market the previous year becomes waste. Of this 80%

  • 26% is reported as properly collected and treated;
  • 2% is reused;
  • 10% is landfilled; and
  • 42% is separately collected but not accounted for

As a result, the environmental and health risks posed by these products continues to be a concern, and so the sector can expect to face greater monitoring and checking by the regulators than has been the case to date. A producer6 of such products will, as a result, need to be even more vigilant as to the components it is using, the raw materials it buys or equipment which it rebrands and sells on, and will need to make sure it has robust contractual provisions in place with its suppliers and verifying procedures within its own manufacturing facilities. R&D, innovation and design will continue to have a key, and probably greater, role as more and more substances are determined as posing an unacceptable risk to the environment and human health and temporary exemptions for substances are removed.

Proposals to amend the RoHS Directive

(i) What is banned?

The ban imposed by the RoHS Directive as to the use of four heavy metals7 (lead, cadmium, mercury, hexavalent chromium) and two brominated flame retardants (PBBs and PBDEs) in EEE was put in place to increase the protection of human health and to aid the recovery, re-use or recycling and environmentally-sound disposal of waste electrical and electronic products. This has already led to changes in design and increased awareness of product composition and the toxicity of substances. The list of banned substances is to remain the same, but four new substances are identified for priority assessment (all being included in the Candidate List as Substances of Very High Concern under the REACH regulation) and a mechanism is to be introduced for new substance bans in line with the REACH requirements to ensure coherence. Current substance exemptions instead of being subject to a four year review will have a four year maximum exemption, although there will be an ability to request a renewal. New criteria have also been added to cover the availability and reliability of substitutes and an assessment of the socio-economic impact.

(ii) Scope – what products are caught

As already mentioned, a lot of time has also been spent by producers trying to determine whether or not their products fell within the scope of the RoHS Directive. As a result, the modifications will clarify the scope and the definitions and include a binding list of products that are caught, rather than by reference to the annex to the WEEE Directive – see table below. Two new annexes have been added, the first describes the broad product categories and the second is a binding product list within each category. This clarification will be welcomed as the uncertainty of interpretation by individual Member States and also producers has been a concern. A vast range of products that use electricity, both small and large household appliances, IT and telecommunications equipment and consumer goods are already covered but medical devices and control and monitoring instruments were not included (mainly due to concerns as to the reliability of lead-free solder), although they were caught by the WEEE Directive. RoHS, as amended, will now include these categories, albeit in a staged manner, commencing in 2014 and running through to 2017. Military equipment is now specifically excluded from RoHS Directive.

(iii) Placing on the market

A further amendment to the RoHS Directive makes it clear that ‘placing on the market’ means the ‘Community market’ to ensure Member States do not interpret this as their own domestic national market.

(iv) Can you still use your spare parts?

Further clarification is given to the use of spare parts with the permission to use noncompliant spare parts being extended to equipment which benefits from an exemption when placed on the market. This change has been brought in to prevent the premature withdrawal of equipment from use.

(v) Will enforcement become tougher?

Spotting and removing non-compliant products from the market has not been easy and differences between the methods of Member States as to enforcement has caused problems. As a result, the modifications proposed include introducing all the relevant provisions already used in the EU’s Marketing of Products8 package with the hope that this will bring better and harmonised market surveillance methods and mechanisms for assessing conformity. This means that the RoHS Directive will, in effect, become a CE marking directive9. Currently there is a self-certification process with, in effect, producers declaring that their products comply with the RoHS Directive by simply placing them on the market and there are no requirements for the application of a specific mark or testing by an independent body. The proposed change will mean there is now a CE label for electrical and electronic products – albeit still a selfcertification process – but the assessment process will have to accord with that used for qualitative assessment (conformity and compliance)10 for other products on the Community market. The specific standards, however, have not yet been produced. Enforcement will then take place under these 'marking' EU directives with the advantage that these require formal liaison between enforcement bodies and therefore exchange of information. The hope is that there will be a reduction in the number of noncompliant products on the market.

Proposals to amend the WEEE Directive

The costs and burdens on players in the market of implementing the WEEE Directive has also been a concern. The Commission has therefore also reviewed its provisions to try to simplify and ease some of these burdens. The Commission has been concerned at the cost of putting the Directive into effect and it has estimated that the proposed revisions to the Directive would lead to around €60 million in savings. The basic principle is, of course, that the polluter pays – i.e. producer responsibility – in the hope that if the producer is responsible for financing the management of the waste from his own products he will be encouraged to design such products in a way that facilitates repair, re-use and recycling.

(i) Do you need to register in each Member State?

Member States are required to draw up a register of producers and collect information on an annual basis on the quantities and categories of EEE placed on its market and this had led to a requirement on producers to register and report in each Member State where they place products on the market. This has, of course, increased administrative burdens and financial costs. The proposal, therefore, is that such registration and reporting requirements will be interoperational so producers will only need to register in one Member State for all of their activities in the EU.

(ii) Household/non-household products

Clarification is provided as to the scope of the WEEE Directive. It will cover the same 10 product categories as will be listed in the new annexes to the amended RoHS Directive. Be warned though individual Member States can, in relation to WEEE, still include additional product categories. The proposed amendments also clarify the exclusion of certain appliances, for example, fixed installations, and confirm a number of issues which have been set out in the Commission's FAQ document on WEEE, which is not, of course, a binding document.

A helpful change is the proposal to categorise appliances as either household (B2C – business to consumer) or nonhousehold (B2B – business to business). This is useful as different financial and organisational obligations fall on producers depending on whether the appliance is provided to a consumer or not. In relation to B2C, Member States are required to set up a collection system where private householders or distributors can deliver the WEEE free of charge.

(iii) Will producers be required to fund additional take back schemes?

The basic premise for B2B products is that the producer is responsible for providing arrangements for financing the cost of collection and recycling or agreeing appropriate contractual arrangement with its customers in this respect. So it is fairly open ended. However, you then need to look at when the EEE was placed on the market. If it was after 13 August 2005 then the producer is responsible for providing arrangements for financing the costs of collection and recycling of that WEEE. For historic WEEE, i.e. placed on the market before 13 August 2005, the person responsible for that financing will be the producer who is selling a product to replace the waste equipment. But this was then complicated by the fact that the Member States could, as an alternative, make the last user of the equipment partly or fully responsible for financing these costs. Where the historic waste is not being replaced then the last user is responsible for financing the collection and recycling. Certain Member States, e.g. Germany, France, Belgium, Poland and The Netherlands, have chosen to make the last user responsible for all historic waste, regardless of whether a replacement is purchased or not.

The amendments aim to encourage Member States to harmonise producer financing across the EU.

(iv) Higher but more flexible collection rates and targets

The proposed amendments also make changes to the collection rate of waste electrical and electronic equipment. The Commission notes that, at the current collection and recycling target rates (a minimum target of 4kg per inhabitant per year for private households), the expectations of the WEEE Directive to reduce the amount going to landfill will not be reached as the target is not ambitious enough.

So the proposal is that there will be a variable collection target to take into account the differences in the consumption levels of individual Member States. As a result the proposal is for a collection target equal to 65% of the average weight of EEE placed on the market in the two preceding years in each Member State. This will become a binding target in 2016 to give individual Member States time to adjust. This rate will apply both to household and non-household waste electrical and electronic equipment.

Producers will be responsible for achieving this target and so as a producer you need to make sure you have in place proper systems for recording EEE sold and its ultimate collection on disposal.

The amendments also propose an increase of 5% in the combined recycling and reuse targets, but a producer can now include the re-use of whole appliances, which was previously not counted in this way, so as to make re-use an attractive option.

Targets for medical devices are proposed to be set at the level of the targets for monitoring and control instruments.

(v) Enforcement

The revisions propose the setting of minimum inspection requirements for Member States and also minimum mandatory requirements for WEEE that is shipped. The reason for this is that experience points to a significant amount of illegal shipments of WEEE to developing countries.

What next?

The Commission, having published its proposals at the end of December 2008, is now in the consultation phase. It is likely the various amendments will need to be complied with by 2014 so producers need to start adapting now and keep an eye on developments. In particular, the standards for the CE labelling requirements and the Candidate List for REACH need to be monitored to see what other substances may, in due course, be banned from use in electrical and electronic equipment.