Due Diligence and RoHS

The RoHS Directive enforces an absolute prohibition against six hazardous materials -- cadmium, polybrominated biphenyl flame retardants, lead, mercury, hexavalent chromium, and polybrominated diphenyl ether flame retardants -- in consumer products. Since RoHS was implemented in 2006, manufacturers, importers and even some retailers are responsible for ensuring their products are compliant. If products are found to not be compliant with RoHS, legal action is very likely.

Many manufacturers, importers, and retailers are worried about lawsuits stemming from RoHS non-compliance. In today’s manufacturing world, especially, where products are often purchased overseas and imported, or where products are made overseas with products imported from all over the world, companies rightly worry that they do may not always have enough control over the manufacturing process to ensure that products comply with RoHS. Believe it or not, however, this worry can potentially help manufacturers and importers avoid lawsuits -- provided that importers and manufacturers act on their worries, that is.

By law, compliance with RoHS is mandatory and a court does not need to prove “mens rea” (guilty knowledge) to convict. That means that not knowing that a product contained hazardous materials or not understanding the RoHS is not a defense. Just breaking the laws is enough for a court to convict you. However, due diligence can be a defense if you or your company is accused of non-compliance.

Due diligence can be a defense if you can provide that you took all the reasonable actions possible to ensure RoHS compliance. In order to use this defense and successfully defend yourself from an accusation of non-compliance, though, you need to take action long before you enter a court. You need to ensure that your company is run in such a way that you have control over materials and production. You also want to ensure that you have a system of checks in place that prevent any potential problems – such as a sudden change in the way materials are produced overseas. Finally, you will need to document or have some proof that you are taking these preventative measures. If you are ever facing a legal challenge, documentation and proof will let you show a court that you have exercised due diligence.

There are other ways to ensure RoHS compliance, as well. You need to train all your team members and employees about RoHS and about the system of checks and balances that you have in place to ensure that your products are compliant. You are also responsible for ensuring that the system of checks is in place and is being used by your employees. You may also want to schedule periodic random testing of your products to test for RoHS compliance. This will leave a clear paper trail and will show that you are serious about complying with RoHS regulations. Since RoHS testing can be expensive, you will have to budget for it and decide how often you can afford to test your products.

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