The Devil is in the Details When It Comes to U.S. RoHS

U.S. RoHS-type legislation was recently drafted by the National Electronic Manufacturers Association (NEMA) and introduced in Congress as the Environmental Design of Electrical Equipment Act (H.R. 2420), despite the unanimous opposition of the rest of the electronics industry. While a single national standard for substance restrictions in electronics products sounds like a great idea on the surface, once you dive deeper into the details, the truth is revealed and it’s not a pretty sight. Although H.R. 2420 lays out a very limited scope, contains a laundry list of exemptions and includes a preemption provision, it would take a miracle for this proposed bill to pass with all of these provisions intact.

The preemption provision in H.R. 2420 would prevent individual states from enacting similar legislation, thus aiming to create a uniform national requirement for electronics substance restrictions. However, the likelihood of this Congress passing preemptive legislation is slim to none. In the U.S., there is a federal-state regulatory system where regulatory power is shared between the federal government and state governments. In the area of environmental law, the federal government typically sets the minimum standards, but the states generally can set more prescriptive, stringent laws. In order to have a single uniform standard, the federal government must pass a law that “preempts” or prevents states from passing laws that are different in any way. States typically loathe giving up their authority and often oppose preemptive legislation.

The Obama Administration and Congress have been extremely vocal on their hostility toward preemptive legislation. President Obama explicitly stated his opposition to preemptive laws in a memorandum to the heads of executive departments and agencies in May discouraging them from enacting preemptive legislation without a full consideration of the legitimate prerogatives of the States and with a sufficient legal basis. If the preemption provision is removed from H.R. 2420, individual States will be at liberty to pass their own more stringent regulations which would create a patchwork of regulations nationwide and be extremely burdensome for industry to comply.

In addition to removing the preemptive provision, Congress can change any and every part of the proposed legislation. The legislative process within the U.S. is designed to give legislators numerous opportunities to change a proposed bill; H.R. 2420 would be no different. Legislators are constantly influenced by a variety of stakeholders and with the current Democratic majority, environmental groups will have an eager audience. Environmental groups are highly likely to encourage more stringent legislation by pressuring Congress to restrict additional substances, expand the scope to include all electrical and electronic equipment, and remove some, if not all, of the exemptions currently listed.

IPC and other industry trade associations recently met with the staff of Representative Michael Burgess, a Republican from Texas who introduced the bill, to discuss our overwhelming concerns about H.R. 2420. Rep. Burgess’ staff was apparently misinformed about the impact of this proposed bill on industry because they said they thought it would be an avenue toward “helping industry.” IPC told Rep. Burgess’ staff that industry was not supportive of this legislation and that in fact it would be harmful to industry. Fortunately, Rep. Burgess’ staff indicated that this piece of legislation is not currently a priority for them.

Even if somehow H.R. 2420 makes it through the House and through the Senate without changes, it will still be very different from existing electronics substance restrictions. Although H.R. 2420, EU RoHS, China RoHS, and California RoHS all restrict the same six substances, the scope and list of exemptions are different for each of them. The electronics industry will still be obliged to comply with all other flavors of RoHS around the world, why should the U.S throw another one into the mix?

IPC will continue discussions with other trade associations and congressional staff to ensure, at best, H.R. 2420 does not move forward or, at worst, is not altered from its original form.

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