Nearly two and a half years on from the introduction of the RoHS Directive, it may be an appropriate time to examine how did we all do?  

If the National Weights and Measures Laboratories (NWML) experience is typical across Europe, then probably not very well.  In the early days of transition, they claim "99% of products are 99% compliant".  Or, put another way, only 1% of products complied fully. 

A 2008 Impact Assessment by the European Commission reveals we still have a long way to go, stating "Current Member States' checks revealed that up to 44% of EEE
checked were not fully compliant."
 
That's a pretty poor return on what was a significant investment when one considers that initial compliance is estimated to have cost industry $32bn, with a further $3bn needed annually to maintain compliance, according to a study by researcher Technology Forecasters Inc (TFI). The Commissions own study puts the average overall cost related to RoHS at 1.9% of turnover.
 
In an attempt to reduce costs, resolve uncertainties and to increase market surveillance and enforcement, the European Commission revealed plans to recast the RoHS Directive in December 2008- effectively creating RoHS2. They state the objective of the proposed reform is "... to develop a better regulatory environment, one that is simple, understandable, effective and enforceable."

So, will we do any better second time around? Will RoHS2 really be simple, understandable, effective and enforceable?
 
On first reading, the recast appears significantly larger than the original RoHS Directive, running to some 46 pages compared to the original 5.  In reality, both are of a similar size when the introductory memorandum is removed and one considers seven Commission Decisions have been integrated into what will be (at least initially) one all
encompassing Directive, defining its own scope, definitions and exemptions.  

So is this proposal simply a housekeeping exercise, removing the need for various legislative 'add-ons' that co-exist alongside the current Directive?  Is it actually that
different from what we have today?

Whilst a lot of what is proposed has already been published in one form or another, there are a few significant changes that will affect everyone that currently falls within the scope, and most of those who are currently fall outside the scope.

In terms of scope, RoHS2 now has its own, no longer relying on the annex of its sister legislation, the WEEE Directive.  However, its scope is, to all intents and purposes,
identical to what we have today with the addition of medical devices and monitoring and control instruments (category 8 & 9 equipment). This will be disappointing to many, as one of the biggest challenges 'old' RoHS presented was that of grey area products in relation to its scope.  Does a 'widget' fall within the scope or not?

One of the most significant changes, though not immediately obvious, is the deliberate removal of the term 'producer'.  The proposed recast of the RoHS Directive now applies to 'Manufacturers', 'Importers', 'Distributors' and 'Authorised Representatives' - collectively known as 'Economic Operators'.  The current RoHS Directive defines only one of these as a producer, or the party responsible for compliance.  RoHS2, on the other hand, places obligations on each party in the supply chain.

One can see the reasons behind these changes when you consider how badly the current Directive was implemented.  No longer can distributors or importers simply turn a blind eye relating to RoHS compliance, claiming it's not their responsibility.  So, how will this translate in the real world?
 
Manufacturers must not only build compliant products, they will also be required (for the first time) to draw up technical documentation and a formal declaration of conformity. 

They must also prove they have procedures in place to ensure ongoing production remains in conformity.  Once these, and other tasks, have been completed they are then
required to affix the CE mark, which in itself introduces significant responsibilities.

The next element of the supply chain, the importer, is now obliged to 'mark' the manufacturers work.  They will be required to assess the technical documentation,
declaration of conformity and CE marking.  Once satisfied everything is in order, they must now label the equipment with their registered trade name or mark and contact
details.  If the importer inadvertently places non-compliant product on the market by failing to assess the product correctly, they will be responsible for product recall and
notifying the appropriate national authorities.
 
The distributor is now responsible for 'marking' both the manufacturers and importers work, ensuring both have complied with their individual requirements.  Should the distributor fail to correctly assess the technical documentation and place non-compliant product on the market, they too are responsible for recalling or withdrawing the affected equipment and  notifying the authorities.
 
In essence, each element of the supply chain will be obliged to assess and report all non-conformities, thereby dramatically reducing the amount of non-compliant equipment entering the EU.  Any economic operators who fail to comply with the proposals could be financially crippled, though one has to question are distributors or importers qualified to interpret potentially highly complex technical documentation and serial production processes?

At present, this recast is simply a proposal and isn't yet in force - the EU Parliament and the Council must first formally agree its text before it enters the Official Journal (OJ). 

However, as this is a Commission proposal based on two (industry) stakeholder consultations and several expert studies, it is highly likely it will be adopted in its entirety.
 
So, will RoHS2 be simple, understandable and effective?  That's for the global electronics industry to decide during 2009.

Would these proposals be enforceable?  Yes.  Bear in mind, with the introduction of compulsory CE marking for RoHS, another enforcement agency, Trading Standards, is theoretically introduced. And, by having a visible indicator for the first time, it would also be possible to exclude products at a member state's border.
 
Paul Chinery is Principal RoHS Specialist at Agile Business Consultants, former Managing Director of Distributor Dionics plc