China’s Unique Approach to Substance Restrictions Affecting the Import, Manufacture, Design and Sale of “Electronic Information Products”
 
May 4, 2006
 
Richard Jay "Tad" Ferris- Washington
Hongjun Zhang- Beijing

Introduction

On February 28, 2006, China’s Ministry of Information Industry (MII) promulgated the “Management Methods for Controlling Pollution by Electronic Information Products” [电子信息产品污染控制管理办法] (Management Methods or China RoHS).

The Management Methods bear some similarity to the European Union’s Directive on Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (2002/95/EC) (EU RoHS Directive). It is largely for this reason that the Management Methods are often referred to as “China RoHS.”¹ A copy of the EU RoHS Directive is available at http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=32002L0095&model=guichett.

China’s Management Methods would restrict specified substances from listed electronic information products. Additionally, the Management Methods would require specified labeling and information disclosures on electronic information products and subject certain electronic information products to pre-market testing and certification.

Key Aspects

China’s Management Methods are significant for a number of reasons, although the following are perhaps among the most important for in-house counsel:

1) The Management Methods reflect the growing influence of the European Union’s law and policy in Chinese rulemaking.²

2) The Management Methods reflect the EU RoHS Directive mandate to restrict the following six substances from certain electronic information products: cadmium, hexavalent chromium, lead, mercury, polybrominated biphenyls (PBB) and polybrominated diphenyl ethers (PBDE).

3) The Management Methods also underscore the Chinese rulemaking tendency to borrow from foreign regulatory models while also adding unique requirements to “reflect Chinese government priorities.” These unique requirements can hinder harmonization efforts and create trade disruptions.

4) Uniquely Chinese aspects of the Management Methods that are not found in the EU counterpart Directive include the above-mentioned labeling, information disclosure and pre-market certification requirements. Hence, even if the company has in place a plan for compliance with the EU RoHS Directive, it would not be prepared for compliance with all aspects of China RoHS.

5) The labeling and information disclosure requirements would apply, with certain exceptions, to any items falling within the definition of “electronic information products” at Art. 3(1) of the Management Methods. MII published an explanatory note³ dated March 16, 2006, that lists specific products, parts, components, and materials, falling within the categorical definition of EIP set forth in Art. 3(1). This note underscores the extremely broad applicability of the China RoHS labeling and information disclosure requirements. Products, such as medical devices, that are out of scope under the European Union’s RoHS Directive are within scope, at least where labeling is concerned, in China RoHS.

6) The substance restriction and pre-market certification requirements would apply to subsets of items covered in the definition of electronic information products, issued consecutively in batches of the “Catalog for Priority Prevention of Pollution by Electronic Information Products.”

Entry Into Force

The EU RoHS Directive’s substance restrictions (addressing the six substances noted above, currently listed in China RoHS) enter into effect on July 1, 2006.

China RoHS presents a potentially confusing series of effective dates. The first effective date, indicated in the regulation itself, is March 1, 2007. This effective date essentially indicates the date of entry into force of the labeling and information disclosure requirements. As referenced above, the effective date(s) for substance restrictions and pre-market certifications would be indicated in the “Catalog for Priority Prevention of Pollution in Electronic Information Products.” As this publication goes to press, the drafting of this Catalog has not yet commenced.

For more information, e-mail Tad Ferris or Hongjun Zhang at tad.ferris@hklaw.com or hongjun.zhang@hklaw.com, respectively, or call toll free, 1-888-688-8500.

 

¹ An English-language translation prepared and annotated by Holland & Knight Partners Tad Ferris and Hongjun Zhang is available at http://www.aeanet.org/governmentaffairs/gabl_ChinaRoHS_FINAL_March2006.asp.

² See R. Ferris article on this phenomenon at the ABA International Environmental Law Committee archive, May 2005, available at http://www.abanet.org/environ/committees/intenviron/newsletter/archive/.

³ An English-language translation of this note, prepared by Holland & Knight partners Tad Ferris and Hongjun Zhang, is available at http://www.aeanet.org/governmentaffairs/gabl_HK_Art3_EIPTranslation.asp http://www.aeanet.org/governmentaffairs/gabl_HK_Art3_EIPTranslation.asp.