The UK Government has issued its final guidelines implementing the European Commission’s Restriction of Hazardous Substances (RoHS), and it looks as though the country has been more friendly to industry than some other jurisdictions in the European Union.

RoHS, a European Union-wide initiative to restrict certain substances in electronic goods considered hazardous and sold in member states, goes into effect next July 1. And although it is an EU-wide initiative, each country has created its own legislation, with some being more stringent than others.

The UK’s final guidance held no real surprises to those who had been following the draft process, according to Felise Cooper, an associate in the environmental practice at New York-based law firm Allen & Overy. The most interesting thing about the UK’s implementation of RoHS, she said, is that the country has shown more understanding of business issues than other nations.

“The UK has been somewhat more sensitive to the industry than some of the other jurisdictions in the EU,” Cooper said.

“These laws have evolved in an interesting way. When directives were drafted they were initiated by people who didn't have a connection to high-tech industry,” she said. “They don't take into account the complexity of how equipment is manufactured or the sales and distribution channels.”

For example, the language of the EU initiative talks about “producers” but defines that term as anyone who sells products with their brand name on it. So whenever you are in a supply chain, you are a producer who has to comply with the initiative’s requirements.

“That's just one example and it’s a big ambiguity in the law causing that is causing problems for people about how to comply with this,” Cooper said.

But industry has been successful in bringing some of these problems with the RoHS initiative to the attention of lawmakers in some countries, and the UK is a prime example of a place where legislators listened to what business was saying.

One example of the UK’s business-friendly approach to RoHS guidance is the exemption for equipment that is part of a fixed installation. This allows a combination of several pieces of equipment, said Cooper.

The UK directive exempts “large-scale stationary industrial tools (This is a machine or system, consisting of a combination of equipment, system, products and/or components, each of which is designed, manufactured and intended to be used only in fixed industrial applications),” the recently issued UK regulations said.

While this is a more business-friendly implementation of RoHS – the UK is the only EU member state that has offered this exemption so far – so it also comes with its own drawbacks.

“That statement is open to interpretation,” said Cooper. And because the UK is the only place that is recognising this exemption “companies need to decide if it’s going to be applicable anywhere besides the UK,” she added. “What is the best way to comply with the guidelines? What is the best strategy?”

If you are selling such equipment in the UK is it likely you would want to sell it in other EU member countries? And how will you comply with both the UK’s legislation and the legislation of other countries?

“Companies not only need to comply with the EU’s RoHS directives, but then also have to comply with the individual legislations in each country,” said Cooper. “They really need to comply with the individual country legislation.”

Other exemptions available in the UK, according to the newly issued guidelines, include spare parts for the repair of electronics placed on the market before the RoHS deadline. EU member states have agreed this exemption extends to parts that expand the capacity of and/or upgrade electronics placed on the market before that deadline provided that the electronics concerned is not put on the market as a new product.

The exemptions also extend to the reuse of electronics placed on the market before the July 1 deadline.

The UK, also, is one of the member states that is saying the EU is a single market when it comes to RoHS. That means that once a device is in the EU it is “on the market” and companies don’t need to worry about when it is shipped to a new member state. For example, if it is in the UK in June, but shipped to France in July, it was put on the market in June. But it remains unclear if all member states will take that single market approach the way the UK has.

“That’s a real challenge for producers in the United States that are shipping goods. Many send their products to a hub in the Netherlands,” said Cooper.

Another question is what if a company has a product in inventory for a few years and is also shipping new inventory into that warehouse? Now these companies need systems in place to distinguish between the pre-RoHS deadline inventory and the post-RoHS deadline inventory.

“One approach is to ship everything to the final destination by July 1,” Cooper said. “But for some companies that is impossible. They don't know what the demand will be.”

How the legislation will be enforced in the UK and other member countries remains to be seen, and won’t become evident until after the July 1 deadline. However, according to Cooper, “most people expect that enforcement across the EU will be focused on consumer type equipment”. But she warned the scope of law is broader than that.

“Because the law is still relatively new and each member state is implementing its own legislation in its in own language,” she said. “It's really now that companies are having to deal with this. People are having to plan for this now.”

In each jurisdiction there is some agency in charge of enforcement, Cooper said. But the European Court of Justice is the only court that has jurisdiction, she said.

“Because the law is new, there are no cases yet,” said Cooper. “When that happens a lot more light will be shed on what these ambiguities mean.”