Further details emerge on restriction of hazardous substances

After several years of anticipation, further details concerning the requirements for the handling and content of electronic information products (EIPs) in the People’s Republic of China are emerging.

On 28 February 2006, the Control of Pollution Caused by Electronic Information Products Administrative Measures (the EIP measures) were jointly issued by the Ministry of Information Industry (MII), the predecessor of the current Ministry of Industry and Information Technology (MIIT), and six other PRC government bureaus.

The EIP Measures came into effect on 1 March 2007 and require all EIPs which are imported, produced and sold in the PRC to bear certain labels and be accompanied by detailed information to indicate whether they contain certain restricted substances. Currently, those substances are lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls and polybrominated diphenyl ethers. The EIP Measures expressly acknowledge that the PRC government might impose restrictions on or ban additional substances in the future.

The EIP Measures cover the same substances as the European Union’s Restriction of Hazardous Substances Directive, which has been implemented in most EU member states since July 2006. Accordingly, sometimes the EIP Measures are referred to as the China ROHS Measures.

Phased implementation

The EIP Measures provide for a two-phased implementation process.

In the first phase, importers and producers of EIPs were required to comply with labelling and disclosure requirements.

The second phase has not yet begun. At some point following the effective date, mandatory certification requirements and additional limitations on the listed toxic substances in EIPs will be imposed on manufacturers and importers of EIPs. EIPs subject to the certification requirements and additional limitations will be listed in a special catalogue, to be issued by the MII and other government agencies, which will specify concentration limits and certification requirements for the EIPs listed in it.

Catalogue details

On 10 October 2008, the MII issued the Formulation of the Catalogue of EIPs which are the Subject of Strengthened Pollution Controls Procedures. According to this document, the catalogue is subject to annual adjustments and will be issued in several stages.

Until the catalogue is finalized and issued, EIPs may still contain the listed toxic substances, and formal testing and certification is not required. However, when EIPs are included in the Catalogue, they will face substance bans, and testing and certification requirements.

On 29 September 2009, the MIIT issued, for public comment, a draft of the Catalogue of EIPs which are the Subject of Strengthened Pollution Controls (First Batch).

Recent guidance

In the past few months, producers and importers of EIPs received guidance from the MIIT on how they should determine the environmentally-friendly use periods (EFUPs) of their products.

As part of the labelling requirements imposed under the EIP Measures, the EFUPs of EIPs must be indicated on product labels affixed to the EIPs. However, since the EIP Measures came into effect in 2007, producers and importers of EIPs have received little guidance to assist them in determining the EFUPs of their products.

In November 2009, the MIIT issued the Environmentally-Friendly Use Period of Electronic Information Products General Guidelines, which provided much needed guidance on the determination of EFUPs. On 1 December 2009, the MIIT also issued a sheet of frequently asked questions to supplement these Guidelines. The Guidelines came into effect on 1 January 2010.

Assessing EFUP

The Guidelines provide six methods of assessing the EFUP of an EIP. The six methods can be categorized into two broad areas, namely technical EFUP and notional EFUP.

Generally, the technical EFUP methods are based on (a) prior experience in the implementation of the EIP, and (b) scientific technology to conduct experiments on the EIP to determine its EFUP. The notional EFUP methods assess the EFUP of an EIP by other less direct means, such as by considering EFUPs of similar products or the life expectancy of the EFUP’s technology.

The Guidelines provide a list of factors which should be considered when assessing the conditions of use of EIPs. They include the temperature of the environment, pressure, humidity range, air temperature of the environment, frequency of use of the EIP and conditions of use of the
accessories.

EFUP in years only

The Guidelines clarify that EFUPs should be expressed in years, rather than in months or days. The frequently asked questions document indicates two reasons for that. First, the life-cycles of EIPs tend to be longer than perishable products, so it would be impracticable to assess EFUPs in terms of months and days. Second, an EFUP expressed in years would help prevent improper competition where a manufacturer indicates its products’ EFUPs as being slightly longer than the others, even when they are actually similar.

Penalties?

There are no detailed penalty provisions in the EIP Measures. However, the EIP Measures do empower PRC government bureaus such as the Customs Administration, the Administrations for Industry and Commerce, the Quality Inspection Bureaus and the Environmental Protection Bureaus to penalize manufacturers, distributors and importers of those EIPs which do not comply with the obligations set out in the EIP Measures. It is anticipated that detailed penalty provisions will be promulgated in due course and that penalties might include warnings, fines, seizure of non-compliant EIPs, potential repatriation orders (for imported EIPs), suspension or cancellation of business licences.

Emerging impact

The EIP Measures and related issuances of the past year indicate both an increased focus by the PRC government on environmental health and safety issues, and the wide-ranging potential implications of such a focus on the manufacture, importation and distribution of EIPs in the PRC.

Beatrice Schaffrath regularly advises on China-related environmental law and compliance matters

Zhang Danian is the chief representative of the Shanghai office of Baker & McKenzie

1601 Jin Mao Tower, 88 Century Avenue, Pudong,
Shanghai 200121, PRC
Tel: +86 21 6105 8585
3401 China World Tower 2, 1 Jianguomenwai
Dajie, Beijing 100004, PRC
E-mail: danian.zhang@bakernet.com,
beatrice.m.schaffrath@bakernet.com