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Viewpoint on RoHS Amendment: Regulating for Nanomaterials in Electrical Equipment
July 8, 2011 | By GILES CHAPPELL
by Giles Chappell, attorney, McKenna Long & Aldridge LLP (Brussels).
On July 1, 2011, Directive 2011/65/EU on the restriction of the use of certain hazardous substances in electrical and electronic equipment - the “recast RoHS Directive” - was published in the Official Journal of the European Union.
The recast RoHS Directive will enter into force 20 days after its publication in the Official Journal, i.e. July 21, 2011, and will replace the existing Directive 2002/95/EC. Member States have until January 2, 2013 to implement the Directive’s provisions into national law, at which time the new rules will apply directly to companies placing or making available on the market, electrical and electronic equipment (“EEE”) in the EU.
The main developments compared with the current rules concern:
* expanding the scope of the rules in stages to eventually cover all EEE, unless exempted;
* changes to the procedures for exemptions of applications of banned substances from the RoHS requirements;
* increased technical documentation required in order to market the EEE in the EU (e.g. providing an EC Declaration of Conformity, affixing the CE Mark) and requirements to carry out internal production control procedures etc;
* no new substance restrictions, but the following substances are identified for priority assessment in a non-legally binding recital: Hexabromocyclododecane (“HBCDD”), Bis (2- ethylhexyl) phthalate (“DEHP”), Butyl benzyl phthalate (“BBP”) and Dibutyl phthalate (“DBP”).
Other proposed restrictions on additional substances, including nanosilver and long multi-walled carbon nanotubes, were not included in the final act. However, nanomaterials are referred to in the preamble of the recast RoHS Directive, as follows:
“(16) As soon as scientific evidence is available, and taking into account the precautionary principle, the restriction of other hazardous substances, including any substances of very small size or with a very small internal or surface structure (nanomaterials) which may be hazardous…should be examined…”
Furthermore, in accordance with Article 6, in order to review the list of restricted substances, the European Commission will take into account whether substances of very small size or with a very small internal or surface structure, or a group of similar substances, amongst other things:
* could have a negative impact during electrical and electronic equipment waste management operations;
* could give rise to uncontrolled or diffuse release into the environment of the substance, or could give rise to hazardous residues;
* could lead to unacceptable exposure of workers involved in the waste EEE collection or treatment processes; or
* could be replaced by substitutes or alternative technologies which have less negative impacts.
Thus, although the final text does not impose any explicit requirements for companies placing EEE containing nanomaterials on the EU market, when amending the list of restricted substances in the future, the Commission will take account of the nanoforms of the substances using the above criteria.
Chappell: RoHS amendment takes nanomaterials into account.
Furthermore, along with other recent developments by European authorities, it is increasingly likely that nanomaterials, including those used in the electronics sector, will be subject to regulations in the forthcoming years, either within the scope of RoHS (e.g., when new substance restrictions are added) or within the scope of REACH or another legislative instrument. In this respect, it is particularly important to analyze the increasing number of studies and reports available on the risks of nanomaterials. Their conclusions are likely to contribute to establishing the scientific and legal grounds for future RoHS recasts and EU legislative instruments, including Reach, and thus impact the commercial outlook for nanomaterials in EEE.
Meanwhile, Cefic this week has "warmly welcomed" the amendments to the RoHs regulation.
Chappell's attorney practice focuses on chemicals (REACH and the CLP Regulation), electronic waste and disposal legislation (WEEE, RoHS), biocides and pesticides legislation, and the developing legal and regulatory framework for nanomaterials.