China to Introduce New Measures for the Environmental Regulation of Electronics

07 March 2006

Gordon Milner

China's Ministry of Information ("MII") has announced that it will introduce new legislation in an effort to curb or eliminate the use of toxic and hazardous substances in the manufacture and consumption of electronic products.

The MII's "Electronics and Information Products Pollution Control Measures", also known as the "Administrative Measures on Control of Pollution in respect of Electronic Information Products" (the “Measures”), will impose strict penalties upon the manufacture, import and sale of goods falling into listed categories if they do not comply with strict limitations in respect of the use of certain substances.

The Measures are expected to come into force on 1 January 2007. From that date, retailers will not be allowed to sell non-conforming products regardless of whether they were manufactured or imported into China.

The new legislation

The MII has not yet published the final version of the Measures. However, certain key aspects of the new legislation have been identified by its Economic Operations Bureau.

To some extent the new legislation will share common features with existing overseas regulatory models – in particular, the European Union's Directive on the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment ("EU RoHS").

Indeed, whilst the MII has not yet confirmed which specific hazardous substances will be regulated by the Measures, the new legislation is expected to follow RoHS and cover lead, mercury, cadmium, hexavalent chromium and certain flame retardants.

The Measures will be implemented in two phases. Initially, the use of such substances within certain products will be subject to compliance with clear labelling requirements. Eventually the use of such substances will be prohibited in those products except where substitutes are not feasible. In such cases the relevant products will have to satisfy specific People’s Republic of China national or industry standards.

However, the MII has indicated that the Measures will differ from their European antecedents in a number of key respects namely:

  • whilst the EU RoHS applies primarily to producers, the Measures will be applicable to manufacturers, importers, distributors and retailers alike;

  • rather than setting out universally applicable rules with limited categories of excepted goods, the Measures will only apply to certain specific classes of electronic information products expressly listed by the MII ("EI Products"). The MII is expected to publish the initial catalogue of EI Products within the first half of this year. Products which are likely to be listed include: electronic radar products, electronic communications products, radio and television products, electronic instrumentation and metering products, computer products and home electronics. Notably, medical devices and spare parts are also likely to be included, notwithstanding exclusion from the EU RoHS. However, sources in the MII have indicated that toys and home appliances such as washing machines, microwaves and toasters are unlikely to be classified as EI Products;

  • goods will require testing and certification by accredited laboratories rather than self-certification by their producers. In order to avoid problems addressing the volumes of testing which this requirement will bring, the MII has also announced plans to accelerate their accreditation of additional Chinese laboratories over the course of 2006. It is, however, unclear whether any non-Chinese facilities will be granted the necessary accreditation to perform tests under the Measures;

  • goods which are not themselves listed as EI Products will nonetheless be subject to the requirements set out in the Measures where more than 60% of their value is constituted of components which themselves comprise EI Products (for example computerised control devices). If this value criterion is not met then only the relevant components will be subject to the Measures; and

  • products will be required to bear the equivalent of a ‘best before’ date identifying the period in which the product can be used before it is no longer safe due to the potential release of hazardous substances (the “Environmentally Safe Period”).

In addition to the Measures, the MII has confirmed that it is also currently preparing further legislation similar to the EU Directive on Waste Electrical and Electronic Equipment (2002/96/EC) (“WEEE”) pursuant to which manufacturers will be required to recycle their products after the Environmentally Safe Period expires.