In the context of wider chemicals regulation, the ‘RoHS’ regime is not particularly complicated: it provides a fixed list of substances that cannot be used in electrical and electronic equipment above a certain threshold, with the aim of protecting human health and the environment. Nevertheless, despite the fact that the current (EU) regime was implemented in the UK in 2012 (with previous iterations in place a decade before that again), the legislative changes required in order to make the regime work in Great Britain post-Brexit have certainly done nothing to improve the clarity of those requirements for electronics businesses working to comply with the regime.

In order to read the legislation (as it applies in GB from 1 January 2021), it is necessary to read and understand (at least) the following legislative instruments:

• The Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012
• The Waste (Miscellaneous Amendments) (EU Exit) (No. 2) Regulations 2019
• The Waste and Environmental Permitting etc. (Legislative Functions and Amendment etc.) (EU Exit) Regulations 2020
• The Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations 2020

There is currently no consolidated version available publicly.

To add to the confusion, on Friday (28 February 2021) the Office for Product Safety & Standards announced that a typographical error had been identified, which appeared to change the existing maximum permitted concentration value of Cadmium from 0.01% to 0.1%. As a result, the OPSS has confirmed that a(nother) formal amendment will be implemented shortly to return the limit to 0.01%. In the meantime, businesses are of course advised to continue to adhere to the 0.01% threshold.

As we have mentioned in other posts, the task of copying and pasting (more or less) the entirety of EU-derived environmental and product compliance onto the UK statute book is no small task. And for the most part, the legislative drafters appear to have performed very well considering the immense time pressures that they have been under. However, this latest example of ‘fat-finger’ errors in drafting does demonstrate the risk associated with producing vast quantities of legislation in a very short period of time and without the normal checks and balances that are provided by consultation and by adequate parliamentary time for scrutiny.

We are currently assisting a wide range of clients to navigate similar Brexit-related challenges, and raising queries with the relevant regulators where the ‘Brexit drafting’ appears to create ambiguity and/or unexpected outcomes. If you have noticed any such anomalies, do please get in touch. 

Tom Gillett, solicitor.