REACH Article 67 substance restrictions

From 1 June 2009 all EU suppliers are now required to comply with a raft of substance restrictions under the REACH Regulation. The substance restrictions apply every time an article is supplied (including components, sub-assemblies and finished equipment) and enforcement action can be taken at any point in the supply chain. The substance restrictions also apply to distributors who resell components and sub-assemblies, and retailers who resell finished equipment.

The 53 substance restrictions are detailed in Annex XVII of the REACH Regulation (as amended) and cover a very wide range of applications. In addition to substances which are already restricted under the Restriction of Hazardous Substances (RoHS) Directive, there are a further 19 REACH substance restrictions which can be relevant to electrical and electronic equipment and hardware products.

More substances will be added to the list by the European Chemicals Agency and EU Member States. However, the list of REACH restricted substances will develop more slowly than the REACH Candidate List of Substances of Very High Concern, which may grow by up to 25 substances per year according to the European Chemicals Agency. Substances on the Candidate List require declaration if the component, sub-assembly or finished equipment contains more than 0.1% w/w of that substance.

REACH enforcement is carried out through Member State regulations and is coordinated across Europe by the ECHA Forum for Exchange for Information on Enforcement. In France companies that do not comply with the REACH substance restrictions face a maximum prison sentence of two years or a maximum fine of €75,000. In the UK non-compliant companies face a maximum penalty on conviction on indictment of a fine (unlimited) or imprisonment not exceeding two years, or both.

The enforcement action taken by the Netherlands against Sony in 2001 under the old Marketing and Use Directive illustrates the level of enforcement that may be applied for non-compliance with the REACH substance restrictions. In May 2001 a competitor informed the Dutch customs that cables in Sony PlayStation1 contained 20 times the levels of cadmium permitted in Dutch regulations implementing the Marketing and Use Directive. Annex XVII of REACH replaces the Marketing and Use Directive and specifically prohibits the use of cadmium in concentrations > 0.01% in PVC used for insulation for electrical wiring. Dutch customs seized 1.3 million PlayStation1 units and 800,000 accessories with a market value of $162 million. Replacing the cables and safety validation to enable these units to be sold in the Netherlands cost Sony $110 million. The business impact of lost sales of PlayStations in the Netherlands during this period has not been quantified. It is interesting to note that the Netherlands leads the ECHA Enforcement Forum working group on the enforcement of the REACH substance restrictions.