The EU WEEE Directive, in place since Aug. 13, 2005, could have served as a model for what to do and what not to do when state legislatures propose and enact e-waste Legislation. It would appear that many of the same issues facing manufacturers that place products on the market in the EU are being repeated in the states' legislation.

Those who fail to learn from history are doomed to repeat those mistakes. Let’s compare what has happened in the EU to what is happening in the US.

A covered product? Let’s start by trying to understand what may be a covered product in the EU. There are ten categories of covered products, which some EU Member States consider to contain a list of specific products which producers can use to determine if the WEEE Directive is applicable. The determination can be very simple if you are the producer of a laptop or desktop computer or if your product is clearly classified as none of the above or is clearly out of scope. There are other EU Member States that consider the categories to be what is often referred to an indicative list of covered products. You may have already been surprised by how inclusive some EU Member States are in their view of included products. The EU would like you to believe that the number of products that do not match directly to a category, commonly referred to as a “gray product,” is small, but in reality electronics product manufacturers have created many products not even thought of when the legislation was enacted, and it will never be possible to develop lists of sufficient granularity to either list all possible products or sufficiently dynamic to keep pace with new product development. The bottom line is that you can’t simply read the EU WEEE Directive and determine if your product would be considered in or out of scope in every EU Member State where it would be put on the market. Consider instead that you will need to review the local WEEE regulation and potentially contact the appropriate enforcement agency for that specific EU Member State to obtain an opinion. Should you choose to challenge that opinion your recourse is to present you argument to the EU Court of Justice for a ruling.

You might be thinking that this would never happen in the US, that we learned from the EU and we would not make the same mistake. Sadly, the answer is that we did make the same mistake and will continue to do so as additional states enact e-waste legislation. Currently 21 states (more may be added as you read this) have enacted some form of e-waste legislation, and if you plan on putting product on the market in any of those states, you should go beyond reading the applicable state legislation and making a technical evaluation of what is listed as a covered product. As in the EU, some US states have viewed the list of covered products and the definitions of those covered products to be an indicative list, which can be broadly applied, while in other states the list is viewed as a specific list of products . The bottom line is that you can’t simply read the individual US state e-waste legislation and determine if your product would be considered in or out of scope in every state it would be put on the market. You will need to contact the appropriate enforcement agency for that specific state and obtain an opinion. Should you choose to challenge that opinion, your recourse is to present your argument to the state Attorney General for a ruling. 

Producer /Manufacturer responsibility? Beyond the basic requirements set forth by the WEEE Directive Member States have great latitude in the definition of who is considered a producer, the cost of registration, the data and forms used to register, reporting requirements, schedules and which recyclers are approved to do business in a specific EU Member State. The bottom line is that there is currently no common registration process, cost or reporting structure. This has required “producers” to comply to the unique requirements of 27 EU Member States. If you think this isn’t happening in the US and there is some sort of a coordinated effort among states to prevent this major cost, labor and time burden from being placed upon manufacturers because we have learned from the EU, then you would be very wrong.

Registration fees, information required to register, annual reporting, and even producer actions vary widely from state to state. Even adjoining states appear to have not seen any value in coordinating their requirements in order to help manufactures avoid unnecessary expense. The bottom line is that there is currently no common registration process, cost or reporting structure which has required “producers” to comply to the unique requirements of  21 US States.

Ties to EU RoHS? There are several states that have incorporated direct reference to EU RoHS in their E-Waste Legislation. The legislation in New Jersey and California actually prohibits the sale of a covered electronic product if it is prohibited for sale in the EU.

The New Jersey legislation specifies: "Beginning on January 1, 2011, no person shall sell or offer for sale in this State a new covered electronic device, including a television, if the covered electronic device is prohibited from being sold or offered for sale in the European Union on or after its date of manufacture due to the concentration of one or more heavy metals in the covered electronic device exceeding its maximum concentration value, as specified in the Commission of European Communities' Decision of August 18, 2005, amending Directive 2002/95/EC (European Union document 2005/618/EC), or as specified in a subsequent amendment to the Directive."

The state of Minnesota specifies the “Notification of Status with the RoHS Directive.” This is currently a declaration of status and does not prohibit the sale of a covered electronic device in the state.

What’s a manufacturer to do?

Talk with your peers and industry associations; it seems that much of the focus today is directed towards the EU but equally important is to be aware of and try to influence what is happening in the US today.

Talk with your state officials and where possible provide guidance to their well intentioned efforts.

Stay on top of this as new states continue to add legislation and states with existing legislation continue to consider expanding the type of covered electronic devices.

Before you place your product on the market in any US State make sure your are clear in regards to its status as defined by both the enacted legislation and the interpretation of enacted legislation by the state’s enforcement agency.

Maintain a documented evidence trail which contains, at a minimum, a copy of the enacted E- Waste Legislation, a list of covered electronic, if available definitions of covered electronic devices, and most importantly any communication you have in regards to asking a state enforcement agent if your product would be considered a covered product and their response.

If you are not in agreement or choose to ask for further clarification, many states will forward your request for further clarification to that state’s attorney general’s office for a ruling.

Kenneth Stanvick is senior vice president and cofounder of Design Chain Associates, LLC; ken@designchainassociates.com.
 

 

 

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