Once an article – always an article?

The discussion of the reference value of an article has reached the next stage.

As Germany, Austria, Belgium, France, Sweden, Denmark and Norway still have a dissenting opinion on the information obligations of article 33 REACH regulation, suppliers of articles are facing different interpretations and enforcement activities in the different member states.

Basically, according to the wording of the law, companies have to inform the recipients of an article about candidate substances (substances of very high concern) > 0,1 mass%.

Recently, the German REACH and CLP Helpdesk has published a “short notice” as a supporting document for the fulfillment of the information duties according to the German understanding: once an article – always an article.

Enforcement activities referring to this understanding of the reference value will have strong impacts on industry.

The import of complex products (assembly of several articles) from outside the EU or from EU countries supporting ECHAs opinion will be faced with difficulties of receiving sufficient and veridical information about the article(s).

Plausibility checks and the risk-based- approach may help identifying or excluding the presence of candidate substances, but nevertheless, in many cases, the avoidance of cost-intensive testing won’t be possible.

….and there fell a deep silence

After passing the first REACH registration deadline on December 1, 2010 and after having submitted the CLP notification to ECHA, REACH activities seem to be fallen asleep like sleeping beauty.

No significant news from ECHA, no action or movement in groups and forums, same lectures come up again and again, lab-workers playing pickup-sticks with test tubes?

Yes, but this is the quiet before the storm!

Although companies experiencing the efforts of REACH registration in 2010 call for an early starting of the registration activities for 2013, there does not seem to be a lot of action yet. ECHA expects the registration of approximately 3500 substances submitted in 25000 dossiers by mainly small and medium sized companies.

Many of those companies do not benefit from experience from the first registration deadline, do not have all relevant studies, do not have the expertise knowledge and the human resources. But they do have a lot of different specialty chemicals they have to register until the deadline on June 1, 2013.

What may happen?

Laboratories, consultants and service providers run out of capacity. In addition to the 2013 testing, laboratories will conduct the approved testing proposals from Annex IX and X submitted in 2010.

Difficulties, unforeseen incidents and external influences may delay your registration process. Start your registration process on time and do not risk of falling victim to article 5 REACH:

NO DATA NO MARKET!

20 new proposed substances for candidate list

ECHA has proposed 20 new substances for inclusion in the candidate list end of August.

All these substances have been identified according to article 57 REACH that means they are either carcinogenic, mutagenic, toxic for reproduction of have other characteristics of very high concern.

Check if your substances are included in the proposal. What are the steps, affected companies (manufacturers, importers ore users of those substances) now have to take?

Any interested party can now submit their comments in the public consultation by October 13, 2011 the latest. Follow the consultation here.

After that, a final decision will be taken for each substance, whether or not to include the substance in the candidate list.

Being on the candidate list activates obligations information obligations for manufacturers, importers or traders of articles or even notification obligations.

Out of the candidate list, ECHA proposes substances for inclusion in Annex XIV on a regular basis followed by a consultation process. Substances listed in Annex XIV are not allowed to be manufactured, imported or used without an authorization. Currently, there are 6 substances listed in Annex XIV. The inclusion of further substances that passed the consultation process is foreseen to take place in autumn 2011.

GHS and its Implementation in the EU

GHS (Globally Harmonised System of Classification, Labelling and Packaging of Chemicals) is the outcome of the world summit in Rio de Janeiro in 1992. One of the main purposes of this system as one can guess it on its name is to harmonize the classification of chemicals worldwide. This helps the manufacturers, importers and suppliers to avoid a lot of problems such as for example by transporting, marketing or distributing their chemicals on foreign markets. GHS ensures that all hazardous chemicals are similar classified and have the same hazardous statements, pictograms and precautionary statements.

GHS applies however not directly. Every country has to implement it in its own legal system. So the EU has implemented GHS by issuing the Regulation 1272/2008, the so called CLP Regulation on the Classification, Packaging and Labelling of Substances and Mixtures. CLP applies in all the member states directly without the necessity of any implementation act.  This Regulation has entered into force on 20 January 2009. Many of the chemicals are already classified in accordance with this Regulation. All information about the harmonized classification can be found in the Annex VI of the CLP Regulation.

Besides the substances, published in Annex VI, ECHA proposes additional substances on a regular basis and calls for public consultation. Recently, on August 30, 2011, ECHA has issued another three proposals of substances for harmonized classification:

-benzoic acid, CAS Number: 65-85-0;
-thixatrol MAX, EC Number: 432-430-3
-tralkoxydim, CAS Number: 87820-88-0.

Interested parties like manufacturers, importers or suppliers can provide their information or studies and dossiers to ECHA. The deadline for submitting the comments is October 14, 2011.

RoHS transition deadlines move closer

After coming into force, the revised RoHS directive 2011/65 grants transition periods for the products of category 8 and 9 (medical devices and monitoring & control instruments) with respect to the requirements of article 4 (ban of substances). Although it is only one month ago that the RoHS recast came into force, companies should not waste any time on their way to compliance.
The shortest transition period applies for medical devices. In a period of only three years, manufacturers of medical devices have to make sure that their products do not contain any of the banned substances as such or above the concentration given in brackets for homogenous materials.

• Lead (0,1 %)
• Mercury (0,1 %)
• Cadmium (0,01 %)
• Hexavalent chromium (0,1 %)
• Polybrominated biphenyls (PBB) (0,1 %)
• Polybrominated diphenyl ethers (PBDE) (0,1 %)

Although this date still seems to be far in the future, it is a huge challenge for the affected companies to adapt the restrictions and substitute the banned substances.

In addition to the 3 years transition period for the adaption of the substance restrictions, they have to comply with the other requirements of the new RoHS directive according to the various implementations into national law in the different member states.

Strategic alliance between K&L and Underwriters Laboratories (UL)

Earlier this year the three companies K&L, 1WEEE Services and Underwriters Laboratories (UL) decided to build a strategic alliance putting together the best of all three companies. This alliance is about to become reality right now.

K&L, 1WEEE Services and UL decided to offer a range of consultancy and compliance services for the so-called RoHS recast, which the European Union published on July 1, 2011.

Furthermore, together with our new partner, we undertook initial steps to expand our legal tracking services to countries in South America and Asia. For our legal tracking services we are monitoring the legislative development in the field of environmental protection addressing industry and trade. In these regions new legislation of this kind is popping up almost everywhere. In cooperation with UL we are able to offer legal tracking of environmental legislation focusing on waste and product related legal matters on a worldwide scale.

The UL managers responsible for building the local research teams are going to be located in São Paulo, Brazil, and Singapore. K&L and 1WEEE Services are going to train the local research teams and will continue to do the necessary analysis of legislation to offer reports which enable customers to comply with the new legislation.

REACH penalties differ throughout the European Union

Art. 126 REACH rules that penalties for non-compliance with the REACH regulation have to be determined and implemented by the member states. The understanding, however, of effective, proportionate and dissuasive penalties seems to be very different in the member states.

Whilst the United Kingdom has criminal penalties for non–compliance with the registration of ~ € 5.606 (£ 5000), the comparable penalties in Poland may mount up to ~ € 4.761.904 (PLN 20.000.000), depending on the revenue of the legal person in the year the crime was committed. Italy’s criminal penalties on non-compliance of registration are decided on a case by case decision depending on the qualification of the criminal offence and the severity.

In addition to the criminal penalties, most member states also impose administrative penalties in cases of negligence. On top of this, already small administrative penalties can lead to entries in the central register of trade and industrial offences.

RoHS recast published today!

Today, the RoHS Recast has been published in the Official Journal of the European Union as directive 2011/65/EU. Beginning from now, the law will come into force in 20 days. The member states have to transpose the directive into national legislation within the next 18 months.

The new directive implicates various new obligations for manufacturers, importers and distributors of electrical and electronic equipment (EEE). The circle of RoHS affected companies will grow, as two categories, medical devices and measuring & control instruments are not longer exempted. Furthermore, a new, 11th category will cover any other EEE not belonging to one of the 10 existing categories.

7 New candidate substances coming soon

The member state committee has unanimously agreed on 7 further substances to be added to the candidate list.

The expansion of the list will take place soon. After being published on the candidate list, the substances will activate obligations for manufacturers, importers and distributors of articles.

Substances in articles are subject to notification if the substance is contained in a concentration > 0,1 mass% and in a total > 1 ton /year AND if the exposure (including disposal) cannot be excluded and the substances has not been registered for this use already. This notification has to be submitted within 6 months after the substances were put on the candidate list.

Manufacturers, importers and distributors of articles have to inform their clients about candidate substances > 0,1mass% in an article. They have to indicate the name of the substance, and, if available, provide information on safe use. Consumers have to be informed only on request, cost-free and within 45 days.

There is still a dissenting opinion of some member states about the definition of an article. Find more information: http://echa.europa.eu/doc/sia/draft_guidance_req_sia.pdf

Levies on PCs in Germany takes one step forwards, two steps back

In some countries like Belgium, Russia, France, Italy and Belgium, by implementing tariffs or planning to do so, the levy situation for PCs has already changed. In Germany, however, the situation is still not clear: On the one hand negotiations for PC levies are still in process, on the other hand the tariffs have already been negotiated with some companies. From the perspective of financial planning it is problematic that some companies do not pay at all, others just complain and some even pay anticipated payments. The main difference between the already existing tariffs is whether or not the PC has an integrated CD/DVD burner. Altogether it seems, however, clear that there will be levies on PCs – also in Germany.

Nevertheless, the ongoing proceeding VG WORT./.Fujitsu might change the whole levy situation in Germany again. VG WORT requests information about the amount of PCs which Fujitsu has brought into Germany since 2001. They claim 30 € plus VAT for every PC. The first decision about this case was made on the 2 October 2008, but the Federal Court of Justice of Germany (BGH) dismissed it. They stated that PCs are not to be levied according to § 54a UrhG, because they are only used for reprographic purposes in the interaction with a printer or scanner. This is the reason why only printers or scanners are levied. The Federal Constitutional Court of Germany (BVerfG), however, remanded the case for the reasons that the Federal Court of Justice did not deal with question whether this issue has to be brought to the European Court of Justice (ECJ/EuGH) or not. Therefore, the next oral hearing in the proceeding took place on 7 April 2011. Even though the final decision has not been made yet, it might be remarkable for Germany and especially for the reason how PCs are generally seen nowadays: are they just used in combination with a printer or a scanner for the purpose of reprography or are they a device in their own right? In regard to the existing tariffs under discussion, it is not clear which one it might be. The decision will probably be announced on 21 July 2011.