United States: Electronic Waste Responsibilities Loom on the Horizon

In 2003, consistent with its forward looking policies regarding managing waste, the European Union (EU) issued Directive 2002/96/EC regarding Waste Electrical and Electronic Equipment (WEEE). The Directive contained a number of far-reaching requirements intended to avoid the environmental impacts of disposal of WEEE as general municipal waste, and identified a number of requirements that EU Member Countries were to implement through promulgation of their own laws or regulations. Laws and regulations were to be in place by August 2004, so that producers of electrical and electronic equipment sold in the EU could ensure compliance with Member Country requirements by August 13, 2005.

Only three months before the August 2005 compliance date, however, few EU Member Countries have promulgated the laws or regulations necessary to implement the WEEE Directive. Nor have Member Countries provided details as to how the Directive's requirements will be put in place. As a result, rather than the smooth implementation period originally envisioned (in which producers would have a year to review the Member States' rules and prepare to comply), implementation appears destined to be more haphazard.

The WEEE Directive goes well beyond "e-waste" as the term is commonly used in the United States. Unlike the California "e-waste" rules that took effect in January 2005,¹which at the moment only address televisions, video screens and computer monitors, the WEEE Directive applies to almost any equipment that depends on or uses electricity, with only limited exceptions. As a result, in the EU, household appliances such as refrigerators and toasters, toys, even medical devices, are subject to these WEEE requirements. Furthermore, the rules apply to products not just produced in the EU, but also to products sold in the EU. As a result, manufacturers worldwide have discovered that their products may be subject to not-yet-fully-defined requirements, which finds them struggling to develop compliance strategies.

Under the WEEE Directive, Member States must ensure that producers, or third parties acting on the producer's behalf, set up systems for recovery and treatment and recycling of WEEE from end users. Quantitative targets are set for rate of recovery, reuse and recycling, over time. The producer requirements that Member States are supposed to have in place by August 13, 2005, include: setting up systems for financing collection, treatment, and recycling of WEEE (at no cost to the consumer); some form of producer guarantee at the time the equipment is put on the market that the WEEE will be appropriately handled after the consumer is through with it; marking requirements for the equipment; and, producer registration and recordkeeping requirements. While the general parameters of these requirements are set out in the Directive, working out the details can be problematic.

The UK was thought to be in the lead for implementation, but UK regulations have now been delayed and are not expected to be issued until the summer of 2005. Obviously, it will be very difficult for producers selling into the UK to comply with those rules by August 13. As a result, when the rules are issued, a revised compliance schedule should likewise be issued, but producers will need to "wait and see" what, if any, relief will be provided at that time. Other EU Member States that were hoping to review the UK's rules and use them as models for their own will either need to further delay their own rules or move forward without the UK model.

Producers of products that meet the definition of Electrical and Electronic Equipment under the Directive², and whose products are sold in EU Member States, will need to monitor developments in this area closely over the next few months, both for the final form of implementing laws and any adjustments to compliance schedules. Manufacturers that are not certain whether their products are covered, or whether the listed exemptions apply, should take this time to confirm. If products are subject to the WEEE Directive, elements of a compliance strategy can be formulated even if the final form of the implementing statutes and regulations are not yet known.