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Deadline for Rohs Law Adoption by Member States Paves Way for Wider Ban on Harmful Chemicals

Hong Kong’s electronics vendors selling to consumers located in the EU should be reminded of a major amendment to the EU’s framework law restricting hazardous substances in electrical and electronic equipment (Directive 2011/65/EU - "RoHS"). The amending law, which was published in mid-2015, had to be adopted by the Member States of the EU by 31 December 2016. Member States had to also publish, by 31 December 2016 at the latest, the laws, regulations and administrative provisions necessary to comply with the amending law.

On 4 June 2015, the EU’s Official Journal had published the amending law, namely, Commission Delegated Directive 2015/863. The amendment, which will potentially affect a number of Hong Kong’s exporters of electronic goods to the EU market, bans four more substances from electrical and electronic equipment (EEE), although it provides for transition periods which will assist traders to adjust to the new provisions. 

Virtually all EEE is subject to the RoHS restrictions. Hong Kong traders will have had to comply with the EU Member States’ national laws implementing the RoHS Directive for well over a decade.

Essentially, until now, the RoHS Directive has banned six hazardous substances in all EEE, unless certain express exemptions apply. The six substances already banned (pursuant to the original 2002 RoHS Directive) are lead, mercury, cadmium, hexavalent chromium, Polybrominated biphenyls (PBB) and Polybrominated diphenyl ethers (PBDE).

In 2011, a new (recast) RoHS Directive was published, with an EU-wide implementation date of 2 January 2013. However, while the recast law set out several tough amendments to the original law, the list of banned substances remained the same. Only now, with the adoption of the 2015 Directive, has this list been extended.

Directive 2015/863 states that Bis(2-ethylhexyl) phthalate (DEHP), Butyl benzyl phthalate (BBP), Dibutyl phthalate (DBP) and Diisobutyl phthalate  (DIBP) are Substances of Very High Concern (SVHCs) and were subject to a thorough assessment. It notes that DIBP is a substance that can be used as a substitute for DBP, and was also subject to previous assessments performed by the Commission.

The available evidence indicates that those four substances (all of which are phthalates), when used in EEE, can have a negative impact on recycling, and on human health and the environment during EEE waste management operations. It also indicates that substitutes that have less negative impacts are available for DEHP, BBP, DBP and DIBP in most EEE.

It will be recalled by Hong Kong’s toy sellers that the phthalates DEHP, BBP and DBP are already restricted through entry 51 of Annex XVII to the REACH Regulation, so that toys containing DEHP, BBP or DBP in a concentration greater than 0.1% by weight of the plasticised material, calculated for the three phthalates cumulatively, cannot be placed on the EU market. The 2015 Directive states that, in order to avoid unnecessary regulation, the restriction through entry 51 of Annex XVII of REACH shall therefore continue to be the only restriction applicable to DEHP, BBP and DBP in toys.

The Annex to the 2015 Directive sets out the extended list of banned substances, together with maximum permitted concentration values, tolerated by weight in homogenous materials (the last four below are the new entries on the list):

  1. Lead (0.1%)
  2. Mercury (0.1%)
  3. Cadmium (0.01%)
  4. Hexavalent chromium (0.1%)
  5. Polybrominated biphenyls (PBB) (0.1%)
  6. Polybrominated diphenyl ethers (PBDE) (0.1%)
  7. Bis(2-ethylhexyl) phthalate (DEHP) (0.1%)
  8. Butyl benzyl phthalate (BBP) (0.1%)
  9. Dibutyl phthalate (DBP) (0.1%)
  10. Diisobutyl phthalate (DIBP) (0.1%)

Importantly for electronics manufacturers, the 2015 Directive also provides for periods of transition (depending on the EEE), which will assist in providing time to align production processes with the new requirements. These are set down below:

  • As noted above, Member States had to adopt and publish, by 31 December 2016, their transposition of new Directive 2015/863. They must apply the new provisions from 22 July 2019.
  • However, the restriction of DEHP, BBP, DBP and DIBP will apply to medical devices, including in vitro medical devices, as well as monitoring and control instruments – including industrial monitoring and control instruments – from 22 July 2021.
  • The restriction of DEHP, BBP, DBP and DIBP will not apply to cables or spare parts for the repair, the reuse, the updating of functionalities or upgrading of capacity of EEE placed on the market before 22 July 2019, and of medical devices, including in vitro medical devices, and monitoring and control instruments, including industrial monitoring and control instruments, placed on the market before 22 July 2021.

Manufacturers who feel that the banned substances cannot be substituted in any particular applications should note that exemptions may also be applied for, wherever duly justified. Article 5 of the framework RoHS Directive (2011/65/EU) sets out the provision for exempted applications and the circumstances in which they can be applied for.

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