China to postpone RoHS legislation

Beijing, China — The Chinese Ministry of Information Industry intends to announce this month the postponement of the new China RoHS law by six months to January 1, 2007. However, the new legislation is likely to be more demanding than the EU RoHS directive.

Recent discussions with Huang Jianzhong, director of China RoHS at the Economic Operations Bureau of China's Ministry of Information Industry (MII), regarding China's new Administrative Measures on the Control of Pollution Caused by Electronic Information Products (also known as the China RoHS law) indicate that the legislation is likely to be broader in scope and more burdensome than the EU RoHS Directive.

Unlike the EU RoHS Directive which applies primarily to producers, the China RoHS law will apply to everyone in the supply chain. Manufacturers, distributors, importers, and retailers must all comply with the new law, and failure to comply may result in penalties for everyone in the supply chain.

As of January 1, 2007, all products sold in China or imported into China must comply with the new regulations. Thus, even if distributors import non-conforming products into China before the deadline, retailers will not be allowed to sell those products after January 1, 2007.

What are considered EI products?

In the upcoming weeks, MII will clarify the scope of electronic information (EI) products, which will be covered by the China RoHS law. Unlike the EU RoHS Directive which lists categories of exempted products, the China RoHS law will not list any exempted products because only products identified by MII will be covered. MII does not intend to translate the initial list of EI products into English, nor establish any formal administrative process for clarifying questions regarding covered products.

Inquiries can be made to MII, however, on a case-by-case basis. Huang advised that toys and home appliances such as toasters, microwaves, and washing machines are unlikely to be covered products under the China RoHS law. Medical devices and spare parts, however, will be required to comply with the new China RoHS law.

The China RoHS law addresses non-covered EI products that are comprised of smaller covered EI products differently than the EU RoHS Directive. For example, a non-covered EI product such as a washing machine is subject to the China RoHS law if it includes a covered EI product such as a computer that is more than 60 percent of the value of the larger non-covered product.

However, if the EI product that falls under the scope of the China RoHS law is less than 60% of the value of the larger, non-covered EI product, only the covered EI product will be subject to the China RoHS law. Using the above example, if the value of the computer is less than 60% of the value of the washing machine, only the computer will be subject to the China RoHS law.

MII also intends to publish its Industrial Standards by March 2006, which will provide the requirements for labeling of products, content limitations of hazardous substances in products, homogeneous materials definition, and testing methodologies. The Industrial Standards will be in Mandarin, and later replaced by National Standards that will be translated into English.

Tougher requirements

Contrary to the EU RoHS approach of self-certification, the China RoHS law will require a product to be tested before it is allowed entry into China, and only testing by Chinese certified labs will be accepted by the authorities. Although Huang acknowledged that the eighteen Chinese labs, currently certified, will not have the bandwidth to perform all the testing required by January 2007, he explained that legislation will be passed in mid-2006 to certify additional Chinese labs.

Huang also noted that many countries do not accept testing performed by Chinese labs, and international laws do not prohibit China from limiting the testing of products to those performed by Chinese labs. He commented that MII may give manufacturers some additional time beyond January 1, 2007 to perform the verification testing.

Although the China RoHS law does not limit the number of substances regulated by the legislation, initially, it is likely that it will mirror the EU RoHS restriction of six hazardous substances (lead, mercury, cadmium, hexavalent chromium, and flame retardants PBB and PBDE) and concentration limits.

Unlike any requirement of the EU RoHS Directive, the China RoHS law will require products to be labeled with a date indicating how long the product can be used before it is no longer safe due to hazardous substances escaping or leaking from the product. To be called the "Environmentally Safe Period", Huang commented that if a manufacturer labels a product with a date too far into the future, the manufacturer increases its risk that the product may not endure as long as represented, but if the manufacturer lists a date that is not far enough into the future, it may lose market share.

Huang said manufacturers will be required to recycle their products after the Environmentally Safe Period expires. Additional light should be shed on this requirement in the upcoming months as China's Development and Planning Committee completes its draft of a new WEEE-type law that will require recycling and take back of electronic products.

Although the China RoHS law is still undergoing significant internal development, it is clear that EI products not covered by the EU RoHS Directive, such as medical devices and spare parts, will now have to comply with at least the marking, inspection, and certification requirements, if not the hazardous substance content limitations (the Catalog will define the subset of EI products subject to this requirement), if they are to be sold in China.

It is also clear that U.S. manufacturers selling EI products in China must continue to track the China RoHS law developments, as MII continues to define and modify the legal requirements.

About the authors: Kimberly McMorrow, Marc Gottschalk, and Liang Tang are attorneys for Wilson Sonsini Goodrich & Rosati in Palo Alto, Calif. and can be reached at 1-650-493-9300. Michael Kirschner, president, Design Chain Associates, can be reached at 1-415-342-3217.