5.5: Legal Considerations
- Page ID
- 124285
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\(\newcommand{\avec}{\mathbf a}\) \(\newcommand{\bvec}{\mathbf b}\) \(\newcommand{\cvec}{\mathbf c}\) \(\newcommand{\dvec}{\mathbf d}\) \(\newcommand{\dtil}{\widetilde{\mathbf d}}\) \(\newcommand{\evec}{\mathbf e}\) \(\newcommand{\fvec}{\mathbf f}\) \(\newcommand{\nvec}{\mathbf n}\) \(\newcommand{\pvec}{\mathbf p}\) \(\newcommand{\qvec}{\mathbf q}\) \(\newcommand{\svec}{\mathbf s}\) \(\newcommand{\tvec}{\mathbf t}\) \(\newcommand{\uvec}{\mathbf u}\) \(\newcommand{\vvec}{\mathbf v}\) \(\newcommand{\wvec}{\mathbf w}\) \(\newcommand{\xvec}{\mathbf x}\) \(\newcommand{\yvec}{\mathbf y}\) \(\newcommand{\zvec}{\mathbf z}\) \(\newcommand{\rvec}{\mathbf r}\) \(\newcommand{\mvec}{\mathbf m}\) \(\newcommand{\zerovec}{\mathbf 0}\) \(\newcommand{\onevec}{\mathbf 1}\) \(\newcommand{\real}{\mathbb R}\) \(\newcommand{\twovec}[2]{\left[\begin{array}{r}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\ctwovec}[2]{\left[\begin{array}{c}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\threevec}[3]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\cthreevec}[3]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\fourvec}[4]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\cfourvec}[4]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\fivevec}[5]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\cfivevec}[5]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\mattwo}[4]{\left[\begin{array}{rr}#1 \amp #2 \\ #3 \amp #4 \\ \end{array}\right]}\) \(\newcommand{\laspan}[1]{\text{Span}\{#1\}}\) \(\newcommand{\bcal}{\cal B}\) \(\newcommand{\ccal}{\cal C}\) \(\newcommand{\scal}{\cal S}\) \(\newcommand{\wcal}{\cal W}\) \(\newcommand{\ecal}{\cal E}\) \(\newcommand{\coords}[2]{\left\{#1\right\}_{#2}}\) \(\newcommand{\gray}[1]{\color{gray}{#1}}\) \(\newcommand{\lgray}[1]{\color{lightgray}{#1}}\) \(\newcommand{\rank}{\operatorname{rank}}\) \(\newcommand{\row}{\text{Row}}\) \(\newcommand{\col}{\text{Col}}\) \(\renewcommand{\row}{\text{Row}}\) \(\newcommand{\nul}{\text{Nul}}\) \(\newcommand{\var}{\text{Var}}\) \(\newcommand{\corr}{\text{corr}}\) \(\newcommand{\len}[1]{\left|#1\right|}\) \(\newcommand{\bbar}{\overline{\bvec}}\) \(\newcommand{\bhat}{\widehat{\bvec}}\) \(\newcommand{\bperp}{\bvec^\perp}\) \(\newcommand{\xhat}{\widehat{\xvec}}\) \(\newcommand{\vhat}{\widehat{\vvec}}\) \(\newcommand{\uhat}{\widehat{\uvec}}\) \(\newcommand{\what}{\widehat{\wvec}}\) \(\newcommand{\Sighat}{\widehat{\Sigma}}\) \(\newcommand{\lt}{<}\) \(\newcommand{\gt}{>}\) \(\newcommand{\amp}{&}\) \(\definecolor{fillinmathshade}{gray}{0.9}\)Directive versus Regulation
The EU RoHS is a Directive rather than a Regulation (such as GDPR discussed elsewhere in this textbook). Let's look briefly at how they differ.
"A 'regulation' is a binding legislative act. It must be applied in its entirety across the EU."[2]
"A "directive" is a legislative act that sets out a goal that EU countries must achieve. However, it is up to the individual countries to devise their own laws on how to reach these goals."[2]
Representations of Compliance
The ability of a company to assert that its product is RoHS-compliant is heavily dependent on the correctness of the assertions of RoHS-compliance by the suppliers of the components or parts. What if you doubt the validity of the assertion of RoHS-compliance of a part by the supplier?
Fundamentally, the contracts that your company has with its suppliers should cover this situation. If the part ultimately is determined to be non-compliant, the contract in place should provide a statement of remedy. Unfortunately, these remedies often only cover the cost of the parts that have been purchased. A much larger issue is recalling the product containing the non-compliant component and replacing it with a compliant one if available. Sometimes replacing a component in a product is not feasible and the whole product would need to be replaced, at considerable cost, and with an impact on the company's reputation.
Detecting Non-compliance
As mentioned earlier, compliance is a self-declaration. However, there were concerns at the time of implementation of the Directive that officials at ports of entry to the EU would be using so called "RoHS guns" to selectively test incoming products for the presence of some of the restricted substances. These "RoHS guns" were X-Ray Fluorescence devices.
X-Ray Fluorescence (XRF) helps detect hazardous substances restricted under the RoHS Directive. It identifies heavy metals like lead, mercury, and cadmium quickly and efficiently. XRF works best for inorganic elements, making it a popular tool for compliance testing.[3]
XRF uses X-rays to excite atoms in a sample. When atoms stabilize, they release energy as photons. The device measures this energy to identify elements in the sample. Each element emits a unique energy, allowing precise detection. XRF creates an energy spectrum showing what elements are present and how much of each exists. This data supports both qualitative and quantitative analysis.[3]
XRF effectively detects key RoHS-restricted elements like lead, mercury, and cadmium. It can also find chromium but cannot tell if it’s hexavalent chromium. Additional tests are necessary for that. However, XRF cannot analyze organic compounds such as phthalates or PBBs. XRF can detect total bromine which works as a pre-screening method. However, these substances require other methods like gas chromatography-mass spectrometry (GC-MS) for precise detection.[3]
XRF offers many advantages. It’s fast and non-destructive, meaning samples remain intact after analysis. It works well for solid materials with minimal preparation, saving time and reducing costs. Handheld XRF devices allow on-site testing, making them useful in industrial and environmental settings. These devices analyze samples in seconds, increasing efficiency.[3]
XRF struggles to detect light elements like carbon or oxygen. It also cannot analyze molecules or organic substances. Despite these limits, XRF remains a top choice for detecting heavy metals and ensuring compliance with environmental regulations like RoHS.[3]
Contractual part number references
A matter of much discussion during initial efforts to make products RoHS-compliant was how to mark compliant products in ways that distinguished them from non-compliant products. Some companies chose to create a new product number, sometime affixing an "E" suffix to the previous part number to designate it as environmentally compliant. Other companies chose to retain existing part numbers and just cut into production the compliant products. In this situation, RoHS-compliance could be inferred by the revision number of a printed circuit board or by the manufacturing cut-in date.
From a legal perspective, the use of new product numbers to show RoHS-compliance was potentially problematic. If the company's contract with a customer stated that a product with part number 123456789 needed to be supplied at a specified price over a period of years, attempting to deliver part number 123456789-E that was RoHS-compliant could be rejected by the customer's receiving department as an incorrect part number per the purchase order and contract of record. The customer could also state that in order for the new part number 123456789-E to be received, the customer would have to put the contract out for re-bid, with consequent downside risks.
Penalties (fines and imprisonment)
Article 8 Penalties states: "Member States shall determine penalties applicable to breaches of the national provisions adopted pursuant to this Directive. The penalties thus provided for shall be effective, proportionate and dissuasive."[1]
As a result, the penalties set by the various EU member states are different.
Some examples of penalties that have been imposed are:
- Germany: fines up to 30,000 euros, and a maximum of 1 year imprisonment to the importer of non-RoHS compliant products.
- Denmark: no maximum fine. Imprisonment can be up to 2 years.
Note: Article 23 of the subsequent RoHS Directive 2011/65/EU also allows member states to set the rules on penalties.
Risks
Non-compliance with RoHS carries risk across several areas of the business, from lost revenue and regulatory penalties to damaged partner relationships.
Revenue
- If a product is identified as non-compliant, that product is quarantined. Quarantine is for an indefinite period of time.
- Quarantine applies to ALL countries with RoHS-like legislation worldwide after the investigation process.
- Damage to company brand name.
Penalties
- Depends on the severity of the non-compliance (event vs. systemic; deliberate versus unintentional).
Criminal
- Willful actions regarding non-compliance are subject to criminal penalties.
Recall, Repair, or Replacement Costs
- Producer must recall non-compliant product (in Ireland—by placing ads in three major national newspapers, with some embarrassment!)
- The cost of repair or replacement depends on the magnitude of the issue.
Partner or Customer Flight
- Expect compliance as a condition of business.
- Expect vendor to assume RoHS risk contractually.
- Financial risks due to indemnity clauses with distributors, partners and customers.
- DIRECTIVE 2002/95/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment. OJ L 37/19, 13.2.2003.
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