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  • WEEE regulations: are you covered?

    By Vic Clements, Environ

    The WEEE (waste electrical and electronic equipment) regulations are now fully operational in the UK.

    In June the Environment Agency reported that some 3,200 producers had registered with approved producer compliance schemes. However, Environment Agency data published in July suggests that a significant number of business-to-business (B2B) manufacturers and importers have still not registered because they do not realise that the WEEE regulations apply to them.

    Many companies are still unsure whether their products fall within the scope of WEEE and the Environment Agency is mounting a telephone campaign of 4,500 UK companies to seek out B2B producers who have not yet registered.

    The UK WEEE regulations apply to ten product categories. The regulations have an indicative example of products under each of the categories, but it is not exhaustive.

    The European Commission produced a ‘frequently asked questions’ document in August 2006 and the DTI produced non-statutory guidance notes in February 2007 to explain how companies can assess if their products are covered.

    However, the Government has recognised that a significant percentage of B2B products fall into ‘grey’ areas where it can be quite difficult to carry out this assessment.

    Products not specifically listed
    If the product is not listed, is it covered? The first thing to consider is whether it clearly falls into one of the ten categories in the regulations.

    If it does, then it is covered even if is not specifically mentioned in the list of indicative examples. If it does not easily fall into one of the categories then it is important to check back with the guidance.

    The DTI guidance notes clearly state that the product lists are illustrative and the fact a product is not on any of the lists does not necessarily mean it falls outside the scope of WEEE.

    If the primary function of the product is similar to the types of products listed under a particular category then it is likely to be covered.

    ‘Professional’ versions of products
    If the product is not designed for ‘households or consumers’ - such as commercial microwave ovens or washing machines - then the product categories can cause confusion.

    The category titles of large household appliances, small household appliances, and consumer equipment, are unfortunate and misleading because the illustrative lists of products for these categories clearly contain products that could be used in commercial applications.

    For example, the illustrative list for ‘large household appliances’ contains “other large appliances used for cooking and other processing of food”.

    In addition, both the European Commission Guidance and the UK Guidance Notes clearly state the WEEE regulations apply to both household and professional EEE.

    The UK RoHS Regulator has also stated that professional versions of products that fall under Categories 1, 2 and 4 – household use - should also be considered to be within the scope of the RoHS and WEEE Regulations. Despite this guidance, a number of trade associations have continued to provide contradictory advice and inform their members that only household equipment can fall within these categories.

    Choosing a product category
    With some products, although they are clearly covered, it can be difficult to decide which category they fall into.

    This can be of major significance where the products may, or may not be, in Categories 8 or 9 because these categories are in the scope of the WEEE Regulations, but currently exempt from the materials restrictions in the RoHS Regulations.

    An example of this is light desks and sound desks for theatre and studio applications.

    A question to the UK RoHS Regulator on whether lighting desks and dimmer racks were in Category 5 or 9 elicited the view that these came under Category 9.

    Sound mixing desks are also considered as Category 9 equipment, but only if the system is purely for controlling sound and does not include any capability for recording, amplification, processing or reproduction.

    If, however, the equipment does have any of these capabilities it would fall into Category 4 on the basis that it is “other products or equipment for the purpose of recording or reproducing sound or images…”.

    This illustrates the importance of carefully considering the catch-all descriptions, such as this, which are included in several of the illustrative lists of products.

    Exemption for large scale stationary industrial tools
    In working with clients over several years, helping them decide if they are covered by the WEEE and RoHS Regulations, experience has shown the most difficult products to assess are those supplied for use in industrial applications and installations. The regulations and guidelines often require considerable interpretation.

    For example, the Directive and Regulations specifically exclude “large scale stationary industrial tools“ from Category 6, but they do not provide a definition of the terms ‘large scale’ and ‘stationary’.

    A typical question here might be: “My products are large machine tools that are bolted down so can I claim exemption?”

    The European Commission guidelines suggest that large scale industrial tools are “machines or systems consisting of a combination of equipment, systems, finished products and components each of which is designed to be used in industry only, permanently fixed and installed by professionals at a given place in an industrial machinery or in an industrial building to perform a specific task, but not intended to be placed on the market as a single functional or commercial unit”.

    The last phrase is significant because many manufacturers of free-standing machines will argue their products are exempt on the basis they are large and stationary during use. However if the product is placed on the market as a single functional unit then it is not covered by the exclusion for “large scale stationary industrial tools”.
    Many electrical products fit easily into a category or match to the illustrative lists. For ‘grey’ area products it is up to the manufacturer to make a reasonable assessment of whether they think their products are covered by the WEEE and RoHS regulations.

    Using the official guidance can help with this decision and would be a reasonable defence in the case of legal challenge. However many questions of scope will only ever be decided when tested in a court of law. Until then, manufacturers with products in the ‘grey’ area must balance the cost and effort to comply, with the risk of being found non-compliant.