Thanks for that link, Mike.
When an enforcement authority finally does make the decision to go ahead
with a prosecution, they better make sure they've done their homework.
There are very few standard methods for analysis of RoHS substances and
there are few reference materials with which to validate those methods.
That is not to say they cannot come up with a solid case - I'm saying that
they should chose that case wisely and make sure they can support their
findings with solid, validated methodology. It will have to be a "no
brainer" - an obvious violation. But of course, the EU would prefer to
catch a high-profile company in non-compliance. And it is likely they want
to catch a company originating in a developed nation such as Japan or the
US - picking on a developing nation might not sit right with public opinion.
That might not be so easy, given the amount of attention paid to RoHS by the
big boys. None of them wants to be the next Sony, and they certainly do not
want their company name or product name in the media.
That being said, there has been a lot of testing done using methods that are
inappropriate and can result in false negatives. So there's a chance that a
relatively big company placed faith in a lab or used inappropriate methods
themselves to overcheck results from independent labs. Even so, there's
also a good chance that EU enforcement authorities will also use
inappropriate methods to determine non-compliance (or conversely,
compliance). The lack of properly developed standards hurts all involved:
enforcement authorities and producers alike. That is why standards must be
in place before technical legislation such as RoHS go into effect.
The example I use to illustrate this problem concerns a government
developing a regulation stating that all children age 14 and under must wear
a helmet while riding a bicycle. Let's say that no standards for helmets
were developed prior to the regulation going into force. A kid is observed
riding a bicycle wearing a baseball cap. Is that kid in violation of the
law? Not without a standard defining a helmet and laying out the technical
requirements necessary to protect the head in case of an accident. Now
let's say the givernment developed extensive requirements for the helmet and
a standards development body developed a standard for such helmets. The
resulting helmet would protect the head in every case, but it would cost
$2000. Would it be fair to expect a poor child riding a cheap bike to wear
a $2000 helmet? Again, the answer is no. But if the law went into effect,
there would likely be plenty of violations to go around. Fakes of standard
helmets would quickly become available. In that case, the government should
have taken their requirements to the standard developers and experts and get
their feedback before putting the law on the books. If the law was too
costly to implement, the regulation would have to be altered. In either
case, it is necessary to have standards developed prior to the regulation
going into force.
That is why the World Trade Organization Technical Barriers to Trade
Agreement (TBT) is so important. Here is a quote from the TBT:
"
With respect to their central government bodies:
2.1 Members shall ensure that in respect of technical regulations, products
imported from the territory of any Member shall be accorded treatment no
less favourable than that accorded to like products of national origin and
to like products originating in any other country.
2.2 Members shall ensure that technical regulations are not prepared,
adopted or applied with a view to or with the effect of creating unnecessary
obstacles to international trade. For this purpose, technical regulations
shall not be more trade-restrictive than necessary to fulfil a legitimate
objective, taking account of the risks non-fulfilment would create. Such
legitimate objectives are, inter alia: national security requirements; the
prevention of deceptive practices; protection of human health or safety,
animal or plant life or health, or the environment. In assessing such risks,
relevant elements of consideration are, inter alia: available scientific and
technical information, related processing technology or intended end-uses of
products.
2.3 Technical regulations shall not be maintained if the circumstances or
objectives giving rise to their adoption no longer exist or if the changed
circumstances or objectives can be addressed in a less trade-restrictive
manner.
2.4 Where technical regulations are required and relevant international
standards exist or their completion is imminent, Members shall use them, or
the relevant parts of them, as a basis for their technical regulations
except when such international standards or relevant parts would be an
ineffective or inappropriate means for the fulfilment of the legitimate
objectives pursued, for instance because of fundamental climatic or
geographical factors or fundamental technological problems.
2.5 A Member preparing, adopting or applying a technical regulation which
may have a significant effect on trade of other Members shall, upon the
request of another Member, explain the justification for that technical
regulation in terms of the provisions of paragraphs 2 to 4. Whenever a
technical regulation is prepared, adopted or applied for one of the
legitimate objectives explicitly mentioned in paragraph 2, and is in
accordance with relevant international standards, it shall be rebuttably
presumed not to create an unnecessary obstacle to international trade.
2.6 With a view to harmonizing technical regulations on as wide a basis as
possible, Members shall play a full part, within the limits of their
resources, in the preparation by appropriate international standardizing
bodies of international standards for products for which they either have
adopted, or expect to adopt, technical regulations.
2.7 Members shall give positive consideration to accepting as equivalent
technical regulations of other Members, even if these regulations differ
from their own, provided they are satisfied that these regulations
adequately fulfil the objectives of their own regulations.
2.8 Wherever appropriate, Members shall specify technical regulations based
on product requirements in terms of performance rather than design or
descriptive characteristics.
2.9 Whenever a relevant international standard does not exist or the
technical content of a proposed technical regulation is not in accordance
with the technical content of relevant international standards, and if the
technical regulation may have a significant effect on trade of other
Members, Members shall:
2.9.1 publish a notice in a publication at an early appropriate stage, in
such a manner as to enable interested parties in other Members to become
acquainted with it, that they propose to introduce a particular technical
regulation;
2.9.2 notify other Members through the Secretariat of the products to be
covered by the proposed technical regulation, together with a brief
indication of its objective and rationale. Such notifications shall take
place at an early appropriate stage, when amendments can still be introduced
and comments taken into account;
2.9.3 upon request, provide to other Members particulars or copies of the
proposed technical regulation and, whenever possible, identify the parts
which in substance deviate from relevant international standards;
2.9.4 without discrimination, allow reasonable time for other Members to
make comments in writing, discuss these comments upon request, and take
these written comments and the results of these discussions into account.
2.10 Subject to the provisions in the lead-in to paragraph 9, where urgent
problems of safety, health, environmental protection or national security
arise or threaten to arise for a Member, that Member may omit such of the
steps enumerated in paragraph 9 as it finds necessary, provided that the
Member, upon adoption of a technical regulation, shall:
2.10.1 notify immediately other Members through the Secretariat of the
particular technical regulation and the products covered, with a brief
indication of the objective and the rationale of the technical regulation,
including the nature of the urgent problems;
2.10.2 upon request, provide other Members with copies of the technical
regulation;
2.10.3 without discrimination, allow other Members to present their
comments in writing, discuss these comments upon request, and take these
written comments and the results of these discussions into account.
2.11 Members shall ensure that all technical regulations which have been
adopted are published promptly or otherwise made available in such a manner
as to enable interested parties in other Members to become acquainted with
them.
2.12 Except in those urgent circumstances referred to in paragraph 10,
Members shall allow a reasonable interval between the publication of
technical regulations and their entry into force in order to allow time for
producers in exporting Members, and particularly in developing country
Members, to adapt their products or methods of production to the
requirements of the importing Member."
The EU has always argued that because their regulations such as RoHS are for
protection of human health and the environment and because they impact their
companies in the same way as they impact importing companies, there cannot
be a trade barrier (see paragraphs 2 and 5 above). But paragraph 2 can be
argued in the case of RoHS. I contend (as I think many of you do) that RoHS
is much more trade restrictive than necessary, taking into account the
actual impact the directive will have on human health and the environment.
Had the proper standards been in place, billions of dollars would have been
saved. If RoHS had not been implemented or had been delayed, I doubt many
lives would be negatively impacted, if any at all. In fact, the argument
can be made that RoHS can negatively impact human health, because there is
high probability that a safety related part or system will fail due to the
wholesale redesign of products and materials.
Tim McGrady
----- Original Message -----
From: "Mike Kirschner" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Thursday, November 02, 2006 12:05 AM
Subject: [LF] EU Not Busting for RoHS Violations Yet
> Rob Spiegel spoke, at our behest, to Steve Andrews to get a clear response
> on why we haven't seen any visible cases of non-compliance in the EU yet.
> He
> has more credibility on this topic than just about anyone, even DCA ;o)
>
> You can read his story, entitled "EU Not Busting for RoHS Violations Yet",
> at
>
> http://www.designnews.com/article/CA6387098.html
>
> So the bottom line is that they're trying to find that first case to go
> public with.
>
> Mike Kirschner
> Design Chain Associates, LLC
>
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