The WEE regulations are coming!

You might not realise it, but the new WEEE regulations may well affect your work. Here, Carl Krüger of B2B Compliance guides you through this complex legislation

The Waste Electrical and Electronic Equipment (WEEE) Regulations will put into force the requirements under the EU’s WEEE Directive.  All “producers” of electrical and electronic equipment (known as EEE) items will have to determine whether they face legal liabilities. Don’t stop reading though – producers are defined as the re-branders of other companies’ EEE products and importers as well as being manufacturers of EEE products.You will be obligated even if you put your brand name on a free worktop timer that you then hand out to your favoured customers – you will be a producer under the WEEE Regulations.

Perhaps you bought some electrical products from a supplier in France and sold them on as part of a kit to another company – you may be a producer under the WEEE Regulations. Certainly, if you manufactured EEE products and sold them to others in the EU, you will need to consider your potential legal liabilities

What legal liabilities?
Producers (as will be defined in the WEEE Regulations) are responsible for the financing of the collection (from anywhere in the UK – Scilly Isles to the Orkneys, Northern Ireland to the Isle of Wight) and recycling of electrical and electronic waste (WEEE) to meet EU-set targets each year. They have to submit information on the weights and numbers of EEE products they “place on the market” (another phrase brought in by the WEEE Regulations – it does not necessarily mean “sold”) within each of the 10 Categories defined by the WEEE Regulations.

Examples of laboratory products potentially covered by Category 9 of the Directive:
Shakers, stirrers, centrifuges, temperature control cabinets, pH meters, chromatographs etc.

They also have to respond to their customers’ requests for information, collections of old EEE products (probably not even the producer’s old products), recyclers’ requests for information on breakdown of the electrical items.  They will have to submit, annually, a Certificate of Compliance to the Government (via the Environment Agency, Scottish Environmental Protection Agency or Environment & Heritage Services (N.I.) depending on which part of the country your business is operating). 

If the producer’s products are sold into the household sector, they will also have to provide financial guarantees against future collections and recycling costs.
Finally, marking: any EEE product that is “placed on the market” will need to be specially marked (a crossed out wheelie bin symbol and company identifier). This is supposed to facilitate the determination of which company is the obligated party.

Confused? – You are in good company – this legislation is complex and not always logical and there is some doubt as to whether it will achieve the sustainable development ideals it strives towards.  It has not been helped by different EU countries interpreting it in different ways.

So what do you do?
Firstly, are your products in scope?  For guidance, work your way through the attached decision tree which was developed by GAMBICA, the trade association for laboratory equipment companies. 

GAMBICA had set up a task force to review the WEEE legislation and one of the resultant documents was this decision tree.  It has subsequently been referenced by several other Trade Associations in the UK, by the US Chamber of Commerce, the Japanese Commercial Department, as well as the Belgian and Norwegian authorities.  The DTI has been kept in the loop as well and has made no adverse comment.  Subsequently the approach being adopted is that, until anything is heard otherwise, this decision tree is a valid route to assist you to determine whether a product is in scope of the WEEE legislation or not.

As a Producer, you can follow three routes.
Option 1: Decide that your operations and products are not in the scope of the WEEE Regulations and so you do not need to be concerned.  As has been seen, the range of products covered and the sometimes obscure twists to logic that are incorporated within the legislation make this a hard job to prove outright.  If you do follow this route, you need to prove that you have followed it – provide the due diligence (seminar attendance etc) that you have checked out the legislation, reviewed your products and activities, discussed the possibilities and concluded that you are not within scope.  Next you will need to draw up a document to cover these determinations, date and sign it off by a senior individual and store it carefully against future audits by the relevant Agency.  Even after all this, there may still be instances where you need to forward data to be registered – even if you do not have any obligations.

Option 2: You can decide to handle these issues yourselves – the DIY route. 
This route is being adopted by a range of businesses – most notably the very large operators (Hewlett Packard and Sony for example), or operators that make a very small number of items each year (often with very high value) or operators that already collect and recycle/reuse their own products from their customers. 

The requirements here are that you meet the producer’s obligations yourself – this means handling customer calls to arrange collection of WEEE and its dispatch to a recycling centre that will ensure that the recycling targets are met and that you have the appropriate audit trail to prove it.  Again this may be something you can do in-house.  But anyone co-ordinating waste transport or transporting it themselves must be registered with the Environment Agency/SEPA/EHS, their premises where they store/transfer/recycle waste must also have a Waste Management Licence or a Pollution Prevention & Control Licence. 
Some of the waste being moved may have hazardous components (did you know that TVs, monitors and fluorescent lamps are rated as hazardous?). If you are moving hazardous waste you must have the appropriate Consignment Notes accompany each load – otherwise you are just required to have the Duty of Care documentation. 

On top of this you need someone capable of handling the customer requests for information, ensuring that you are not collecting more than you are obliged to under the legislation, tracking the recyclates and providing the evidence and certification to Government for the public register. In terms of cost, this quickly adds up.  In terms of liabilities, this can get out of hand very easily – especially if you have never ventured into this area before.

Option 3: (and expected to be chosen by over 95% of obligated companies): The Compliance Scheme route. The WEEE Regulations specifically provide for so-called Compliance Schemes to take on the vast majority of the legal obligations faced by producers under this legislation. 
The concept is straightforward – join a Compliance Scheme, just like joining a club, you pay a fee and get some services.  The Scheme has the huge advantage of the accumulated mass of its members – this provides economies of scale in terms of costs (each member of the Compliance Scheme will almost certainly pay less to be a member and meet their obligations through the Compliance Scheme’s activities than the member would have to pay if they went the DIY route).  In addition the Compliance Scheme has the volume of activities to create a far stronger position to drive a hard bargain with the logistics and recycling operators than any one obligated company would be able to do on its own. 
The Compliance Scheme takes on the customer requests for collection of WEEE, the logistics, the recycling, the target attainment (and the production of the Certificate of Compliance). 
This means that there are three remaining issues left with the obligated company – the provision of the appropriate data each year (to the scheme as they are a member, rather than direct to the government), the marking of all their products (either themselves or causing them to be marked by others) and finally, the provision of the finances to cover the activities being carried out (which is likely to be far less when carried out by a compliance scheme).

Where do you find the right compliance scheme?
There are, unsurprisingly, a number of different compliance schemes appearing. 
Some are specific to particular markets (REPIC is specifically devoted to the Business to Consumer areas, C10C has been established by the Automatic Vending Association).  This is great if you are in these fields, but not much good to you if you are not.
Some have evolved from other compliance schemes created under other legislation (eg. the Packing Regulations).  The issue to watch for here is what drives these Schemes – if they are focused on collecting waste (because they are an offshoot of a waste collection company) then they will be interested in collecting as much as possible – and not minimising the amounts collected to restrict costs to the producers as it’s in their interests to collect more rather than less!

Finally, some are creations of industry itself – a reaction to the new marketplace that is intended to represent industry’s concerns while meeting industry’s needs – one such example is B2B Compliance.  This Compliance Scheme focuses on Business-to-Business obligated companies and runs as a not-for-profit arrangement owned by the GAMBICA trade association to provide a service to GAMBICA members and non-members alike.


By Carl Kruger, B2B compliance