RoHS Non-Compliance Penalties: What They Are, How to Avoid Them, and How They’re Enforced

rohs non compliance penalties

Table of Contents

What Is RoHS?

The RoHS directive, issued in the European Union, restricts the use of ten hazardous materials in electronic and electrical equipment (EEE). A product is RoHS compliant if it does not exceed the allowable amounts of these restricted substances. All EEE sold in the EU must be RoHS compliant. 

The goal of RoHS is to protect human health and the environment by reducing the risks of toxic materials used in electronics. While enforcing non-compliance penalties is not the main goal of the directive, penalties are a crucial method to ensure compliance is met and the larger objectives of the RoHS directive are achieved.

Background Information: What is RoHS?

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Source: Robin Glauser

RoHS Compliance: The Basics

The current RoHS restrictions are the result of one original directive and two updates known as RoHS 2 and 3. Any manufacturer, importer, or distributor of electronic and electrical equipment (EEE) sold in the EU market must be compliant with RoHS. 

To be RoHS compliant, companies must:

  • Use restricted substances in EEE only under allowable limits
  • Follow all RoHS 2 guidelines for testing and documentation, including the production of a Declaration of Conformity (a document demonstrating compliance) and a CE marking (a marking on the product that visually demonstrates compliance).

Learn more about how to ensure RoHS compliance: What is RoHS Compliant?

Restricted Substances

To be RoHS compliant and avoid RoHS non-compliance penalties, EEE must not contain any of the following hazardous substances in amounts larger than 1000 ppm. These materials are deemed to be hazardous to human health and the environment.

Products Restricted by RoHS

EEE regulated under RoHS includes a wide variety of products separated into eleven categories, ranging from large household appliances to medical devices. The eleventh category is all-encompassing, as it includes any EEE not covered in the previous ten categories. 

It is important that manufacturers determine whether their product fits the definition of EEE, because all EEE is subject to RoHS compliance requirements. RoHS defines EEE as: “equipment which is dependent on electric currents or electromagnetic fields in order to work properly and equipment for the generation, transfer and measurement of such currents and fields” (Directive 2011/65/EU). 

Even small components of EEE, such as cables or other sub-assemblies, must comply with RoHS standards. 

Who Has to Ensure RoHS Compliance?

Manufacturers are responsible for ensuring their product is RoHS compliant. Each product, rather than the company as a whole, must fulfill RoHS compliance requirements.

While the directive applies to all manufacturers, importers, or distributors of electronic and electrical equipment (EEE) sold in the EU market, it is the manufacturer who will be fined or penalized for non-compliance. It is up to manufacturers to remain aware of changing RoHS requirements in order to avoid RoHS non-compliance penalties.

Who Enforces RoHS Non-Compliance Penalties?

RoHS is a directive, rather than a regulation, which means that while it is passed collectively by the European Union, Member States are responsible for implementing the directive as they see fit, including how RoHS is applied and enforced in each country.

Each Member State enforces the directive separately through a national enforcement body, an agency that performs inspections, audits, and other enforcement activities. 

These national authorities share information with the rest of the EU through meetings of Administrative Cooperation Groups. This coordination across Member States allows national agencies to improve their processes for identifying noncompliance.

Enforcement varies widely from state to state partially due to how much money is available for RoHS enforcement, and how the Member State allocates this budget. The governmental department that is in charge of RoHS compliance may vary from nation to nation, which will also change how the directive is implemented. For example, some departments, such as customs, may focus more on stopping noncompliance in importation, rather than at local factories.

What Happens When RoHS Non-Compliance Is Found?

If a company puts a product on the market that is not RoHS compliant, the company may face penalties. 

Possible violations may be found following a physical inspection, through a third-party complaint, or by chance.

Enforcement authorities will take several steps before penalties are enacted. While the process varies by Member State, most enforcement agencies will take similar action to investigate noncompliance.

Physical Inspection

Physical inspection is often the first step in enforcement, as it is objective and straightforward.

Enforcement agents may pick products at random from stores to test for the presence of restricted materials above allowable limits. This begins the inspection process. If violations are found, an inspection of the factory may be conducted.

An inspection agent will perform a physical inspection of the products on-site, using an x-ray fluorescence (XRF) testing unit. XRF determines the elements that compose the materials used in a product and can detect some of the materials restricted by RoHS.

XRF testing is non-destructive, and can often be performed on site. XRF testing, along with visual inspection, can often find more serious examples of non-compliance, such as heavy metals. 

However, XRF does not detect phthalates restricted by RoHS. To effectively use XRF testing evidence in court, it must be combined with other evidence of noncompliance, such as documentation or other testing methods.

Notice and Request for Documentation

When an enforcement authority notes a possible violation, they will send a letter to the producer of the product in question requesting several pieces of information. The letter will also include a deadline by which the producer must respond.

The letter may request the following information:

  • Details about the company, such as size and sales
  • Contact information for the person responsible for compliance
  • List of products or brands the producer sells
  • Justification for any products found to be noncompliant
  • Justification for any exemptions claimed
  • Details about the internal process to ensure RoHS compliance, including certification records

This process is more time consuming than physical inspection, and often requires more resources. Additionally, interpretation of documentation may be more subject to differing interpretation than testing results from physical inspection.

RoHS Non-Compliance Penalties

After a violation is confirmed, the product will be removed from the market. Producers may also face additional penalties for noncompliance.

As RoHS enforcement varies depending on the Member State, penalties vary from country to country. These penalties may include financial and legal consequences, as well as the larger costs associated with noncompliance.

Financial Consequences

Manufacturers may face fines for products that contain larger than allowable amounts of restricted hazardous substances. The amount of the fine differs by member state, with some countries having higher maximum fines than others. Fines are given for each individual product on the market, rather than the batch as a whole.

Noncompliance may also result in “stop ship” orders. Manufacturers can end up losing large amounts of money manufacturing products they are unable to sell. Additionally, a competitor’s product that is compliant may be released on the market instead.

Lastly, when a product is found to be noncompliant, the brand name may face negative press, which may hurt its reputation and reduce future sales.

After releasing a noncompliant product onto the market, the manufacturer may face severe litigation. This process is time consuming and costly, and can also have negative impacts on your brand’s reputation. 

In some Member States, penalties for noncompliance may be as severe as imprisonment. For example, in Greece, noncompliance can result in a three year prison sentence.

Larger Costs

Putting a noncompliant product on the market has widespread negative impacts on human health and the environment. When a hazardous restricted substance is used in a product, it can cause disease and other health issues during manufacturing, use, and disposal.

Substances restricted by RoHS have severe negative environmental effects, especially during the disposal process of a product. 

Read more about the environmental impacts of electronic waste: What is WEEE?

rohs non compliance penalties explained

Case Study: Nikon F6 SLR Camera

While RoHS noncompliance penalties are fairly rare, many products have still been recalled across Member States, including a hand blender, hair curler, a toy fire engine, and most famously, a Nikon brand film camera. 

This Nikon camera, sold on the EU market after RoHS 3 went into effect, was found to exceed the limit for dibutyl phthalate (DBP). DBP, restricted by RoHS 3, is a chemical plasticizer that interferes with the human endocrine system.

As described in a Technical Service Advisory issued by Nikon, the company became aware of the issue during an internal review, and voluntarily recalled the camera from the EU market. Nikon also replaced cameras for customers who had bought the F6 film camera. 

While the recall only affected 152 cameras, Nikon still underwent loss of revenue as they pulled the camera from the market and paid for replacements for their customers. 

Nikon pledged to increase RoHS training for their employees and to strengthen their inspection and communication processes. 

The best way to avoid a similar loss of revenue and other RoHS noncompliance penalties is to create internal RoHS training and audit processes before a violation occurs. 

Read more about how to avoid RoHS non-compliance penalties: What is ‘RoHS Compliant’?

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