Exemptions are undoubtedly one of the most hotly debated topics surrounding the RoHS Directive for two main reasons. Firstly, the categories of product considered to fall within the scope of the legislation are very broad - it is impossible to list every conceivable product that must comply, so the available guidance is often very generic in nature and occasionally ambiguous. Secondly, the European Court of Justice, the only legal body able to provide an authoritative ruling on RoHS, has yet to judge a test case for ‘grey area’ equipment – no one really knows precisely what may be regarded as ‘in’ or ‘out’.

The appeal of exemptions is understandable. For some organisations, it can provide valuable breathing space allowing the supply chain to fully convert its components before equipment compliance is mandatory. For others, it can provide time to redesign or obsolete equipment in light of the proposed legislation. Whatever your circumstances, exemptions should not be regarded as illegal or somehow dishonest. The Commission approves exemptions in situations where science cannot yet offer alternative solutions. You are simply required to justify the application of existing exemptions with satisfactory evidence demonstrating due diligence.

Whilst there are some very obvious exemptions (for example spare parts for product placed on the market before 1 July 2006) there are a multitude of less obvious clauses that could legitimately apply to your products. The RoHS Directive (2002/95/EC) applies to the application of electrical and electronic equipment (EEE), and not just the equipment itself. For example, it is possible for two manufacturers making similar products, yet serving differing markets, to be implicated by the legislation in entirely different ways.

Contrary to popular belief, RoHS exemptions are not restricted to a few privileged military or medical OEM’s. They may be legitimately applied to a diverse range of electronic equipment manufacturers, eliminating the need to comply with RoHS (2002/95/EC), WEEE (2002/96/EC) or both Directives.

To learn more about independent Impact Assessments, click here.

Lets start with the basics. Before looking for a valid exemption, you should start by determining if your products actually fall within the scope of RoHS (and WEEE).

RoHS takes its scope from the related WEEE Directive. Turning to page 10 of the WEEE legislation (2002/96/EC) will reveal Annex IA, which lists the ten broad categories of equipment that fall within its scope (and consequently the scope of RoHS). Categories 8 & 9 are currently exempt from RoHS, but are not exempt from WEEE.

1. Large household appliances
2. Small household appliances
3. IT and telecommunications equipment
4. Consumer equipment
5. Lighting equipment
6. Electrical and electronic tools (with the exception of large-scale stationary industrial tools)
7. Toys, leisure and sports equipment
8. Medical devices (with the exception of all implanted and infected products)
9. Monitoring and control instruments
10. Automatic dispensers

Immediately following Annex IA, Annex IB lists examples of products considered as falling into these broad categories. However, Annex IB is not intended to be exhaustive - its purpose is simply to give some guidance as to what equipment may be considered as falling within each category. Just because your equipment isn’t listed does not necessarily imply it falls outside the scope of RoHS.

For example, category 8 ‘Medical devices’ is considered to include:

8. Medical devices (with the exception of all implanted and infected products)
Radiotherapy equipment
Cardiology
Dialysis
Pulmonary ventilators
Nuclear medicine
Laboratory equipment for in-vitro diagnosis
Analysers
Freezers
Fertilization tests
Other appliances for detecting, preventing, monitoring, treating, alleviating illness, injury or disability.

Most organisations will not be fortunate (or unfortunate) enough to have their products explicitly named. Consider two products, not named within this category, but which could be broadly described as ‘medical’. Both items are clearly electrical and electronic equipment (EEE) as defined in Article 3(a) of the RoHS Directive and are used in this example purely to demonstrate the classification of equipment.

Product ‘A’ is an electric heat massager, commonly used for relieving muscular sporting injuries. Product ‘B’ is an electronic beauty product, designed to create an artificial tan by airbrushing a fine mist of a beauty formula onto the skin.

Are they both considered medical?The last line of category 8 (like many of the other WEEE categories) provides a generic statement that is often more helpful than the examples of product themselves:

“Other appliances for detecting, preventing, monitoring, treating, alleviating illness, injury or disability”

The primary function of product ‘A’ can accurately be considered to assist with “… treating, alleviating illness, injury or disability”.

Product ‘B’, on the other hand, is essentially a cosmetic device that has no medical connection with illness, injury or disability. In fact, one could argue that category 6 ‘Electrical and electronic tools’ more accurately portrays its function:

“Equipment for spraying, spreading, dispersing or other treatment of liquid or gaseous substances by other means”

This example would exempt product A from RoHS, whilst product B would need to conform. Producer responsibility would still be required for both products under the WEEE Directive.

So what are the exemptions?

In general terms, RoHS does not apply to large-scale industrial tools, spare parts for the repair of equipment put on the market before 1 July 2006, equipment that forms part of another type of equipment that falls outside the scope, equipment associated exclusively with national security and to the following specific applications - some are already in force whilst others are awaiting a Commission Decision:

Review of RoHS Categories 8 & 9
ERA Technology
Final Report
September 2006

Recommendations:

Include categories 8 (medical devices) & 9 (monitoring and control instruments) within the scope of RoHS from 2012, with the exception of:

1. In-vitro diagnostic equipment - proposed inclusion from 2016
2. Industrial test and measurement instruments - suggested inclusion in 2016 (or 2018)
3. Active implanted medical devices - permanent exclusion or delay inclusion until 2020

At this stage, the consultant’s recommendations have no legal authority and the RoHS Directive remains unchanged, although it is almost certain the Commission will accept their findings and implement their recommendations. However, only once the Commission has voted on these findings and a Commission Decision (see the examples below) has entered the Official Journal (OJ) will they become formally integrated into the RoHS Directive (2002/95/EC).

A full copy of the report can be found at http://ec.europa.eu/environment/waste/pdf/era_study_final_report.pdf

RoHS Directive (2002/95/EC)

These original exemptions were published within the annex to RoHS on 27 January 2003. These exemptions are currently in force.

1. Mercury in compact fluorescent lamps not exceeding 5 mg per lamp.
2. Mercury in straight fluorescent lamps for general purposes not exceeding:
— halophosphate 10 mg
— triphosphate with normal lifetime 5 mg
— triphosphate with long lifetime 8 mg.
3. Mercury in straight fluorescent lamps for special purposes.
4. Mercury in other lamps not specifically mentioned in this Annex.
5. Lead in glass of cathode ray tubes, electronic components and fluorescent tubes.
6. Lead as an alloying element in steel containing up to 0,35 % lead by weight, aluminium containing up to 0,4 % lead by weight and as a copper alloy containing up to 4 % lead by weight.
7. — Lead in high melting temperature type solders (i.e. tin-lead solder alloys containing more than 85 % lead),
— lead in solders for servers, storage and storage array systems (exemption granted until 2010),
— lead in solders for network infrastructure equipment for switching, signalling, transmission as well as network management for telecommunication,
— lead in electronic ceramic parts (e.g. piezoelectronic devices).
8. Cadmium plating except for applications banned under Directive 91/338/EEC (1) amending Directive 76/769/EEC (2) relating to restrictions on the marketing and use of certain dangerous substances and preparations.
9. Hexavalent chromium as an anti-corrosion of the carbon steel cooling system in absorption refrigerators.
10. Within the procedure referred to in Article 7(2), the Commission shall evaluate the applications for:
— Deca BDE,
— mercury in straight fluorescent lamps for special purposes,
— lead in solders for servers, storage and storage array systems, network infrastructure equipment for switching, signalling, transmission as well as network management for telecommunications (with a view to setting a specific time limit for this exemption), and
— light bulbs,
as a matter of priority in order to establish as soon as possible whether these items are to be amended accordingly.

Commission Decision 2005/717/EC

This Commission Decision amended the original RoHS Directive on 13 October 2005. These exemptions are currently in force.

The following point 9a is added:

‘9a. DecaBDE in polymeric applications;’
3. The following point 9b is added:
‘9b. Lead in lead-bronze bearing shells and bushes’.

Commission Decision 2005/747/EC

This Commission Decision amended the original RoHS Directive on 21 October 2005. These exemptions are currently in force.

Annex to Directive 2002/95/EC is amended as follows:

1. point 7 is replaced by the following:

‘7. — Lead in high melting temperature type solders (i.e. lead-based alloys containing 85 % by weight or more lead),
— lead in solders for servers, storage and storage array systems, network infrastructure equipment for switching, signalling, transmission as well as network management for telecommunications,
— lead in electronic ceramic parts (e.g. piezoelectronic devices).’;

2. point 8 is replaced by the following:

‘8. Cadmium and its compounds in electrical contacts and cadmium plating except for applications banned under Directive 91/338/EEC (*) amending Directive 76/769/EEC (**) relating to restrictions on the marketing and use of certain dangerous substances and preparations.

3. the following points are added:

‘11. Lead used in compliant pin connector systems.
12. Lead as a coating material for the thermal conduction module c-ring.
13. Lead and cadmium in optical and filter glass.
14. Lead in solders consisting of more than two elements for the connection between the pins and the package of microprocessors with a lead content of more than 80 % and less than 85 % by weight.
15. Lead in solders to complete a viable electrical connection between semiconductor die and carrier within integrated circuit Flip Chip packages.’

Commission Decision 2006/310/EC

This Commission Decision amended the original RoHS Directive on 21 April 2006. These exemptions are currently in force.

In the Annex to Directive 2002/95/EC the following points 16 to 20 are added:

"16. Lead in linear incandescent lamps with silicate coated tubes.

17. Lead halide as radiant agent in High Intensity Discharge (HID) lamps used for professional reprography applications.

18. Lead as activator in the fluorescent powder (1 % lead by weight or less) of discharge lamps when used as sun tanning lamps containing phosphors such as BSP (BaSi2O5:Pb) as well as when used as speciality lamps for diazo-printing reprography, lithography, insect traps, photochemical and curing processes containing phosphors such as SMS ((Sr,Ba)2MgSi2O7:Pb).

19. Lead with PbBiSn-Hg and PbInSn-Hg in specific compositions as main amalgam and with PbSn-Hg as auxiliary amalgam in very compact Energy Saving Lamps (ESL).

20. Lead oxide in glass used for bonding front and rear substrates of flat fluorescent lamps used for Liquid Crystal Displays (LCD)."

September 2006 Update

During the period from July 2005 to July 2006, the Öko-Institut and the Fraunhofer Institut IZM were commissioned by the European Commission to assess the validity of requests for additional exemptions to the RoHS Directive, in line with Article 5 (1) (b) of the legislation. The existing tables below have been modified to indicate the recommendations from these external consultants as to whether a proposed exemption should be granted or rejected. Of the 88 requests analysed, 27 were recommended for adoption, 38 were recommended for rejection and 17 were withdrawn by the originator.

Green recommends a proposed exemption is granted
Red recommends a proposed exemption is refused
Blue indicates a proposed exemption was withdrawn

At this stage, the consultant’s recommendations have no legal authority and the RoHS Directive remains unchanged, although it is almost certain the Commission will accept their findings and implement their recommendations. However, only once the Commission has voted on these findings and a Commission Decision (see the examples above) has entered the Official Journal (OJ) will they become formally integrated into the RoHS Directive (2002/95/EC).

A full copy of the report can be found at http://ec.europa.eu/environment/waste/pdf/rohs_report.pdf

October 2006 Update

Three additional Commission Decisions were published on 12 October 2006, reflecting some of the consultant’s recommendations. A symbol links to the relevant Commission Decision where a proposed exemption has now been formally adopted. It should be noted that the precise wording used within these legally binding documents may vary slightly from the proposed text below, where additional clarification was necessary to accurately describe the exemption.

Click here for a complete list of Commission Decisions associated with the RoHS Directive (2002/95/EC)

Request set 1

1	Lead in tin whisker resistant coatings for fine pitch applications: HP GRANTED FCI REFUSED SONY REFUSED JBCE WITHDRAWN
2	Lead bound in glass, crystal glass, lead crystal or full lead crystal in general
	Lead and cadmium in enamels on borosilicate glass
3	Chromium (also in oxidation state (VI)) and Cadmium as colouring batch addition each form up to a content of 2 % in glass, crystal glass, lead crystal or full lead crystal used as decorative and / or functional part of electric or electronic equipment
4	Solders containing lead and/or cadmium for specific applications [Syfer/Coherent]
5	Hexavalent chromium (CRVI) passivation coatings (see item 20 below)
6	Lead in lead oxide glass plasma display panels
7	Lead in connectors, flexible printed circuits, flexible flat cables
8	Lead oxide in lead glass, bonding materials of magnetic heads and magnetic heads
9	Cadmium as doping material in avalanche photodiodes (APDs) for the optical fiber communication systems
10	Lead in optical isolators
11	Lead in sheath heater of Microwaves
12	Cadmium pigments except for applications banned under Directive 91/338/EEC amending Directive 76/769/EEC relating to the restriction on the marketing and use of certain substances
13	High Intensity Discharge (HID) lamps for professional U.V. applications, containing lead halide as radiant agent
14	Discharge lamps for special purposes containing lead as activator in the fluorescent powder (1% lead by weight or less)
15	Discharge lamps containing lead in the form of an amalgam
16	Mercury free flat panel lamp
17	Special purposes Black Light Blue (BLB) lamps, containing lead in the glass envelope
18	Low melting point alloys containing lead
19	Galvanised steel containing up to 0.35% lead by weight and aluminium with an unintended lead content up to 0.4% lead by weight in electrical and electronic equipment
20	Lead in solder and hexavalent chromium in surface treatment, in parts recovered from production printers and copying equipment, sold, rented or leased or otherwise returned from professional users other than private households, originally put on the market before 1 July 2006, and reused for the same purpose within the original manufacturers closed loop system until 1 July 2011
21	Cadmium sulphide photocells

Request set 2

Green recommends a proposed exemption is granted
Red recommends a proposed exemption is refused
Blue indicates a proposed exemption was withdrawn

1	Linear incandescent lamp (not applicable)
2	Mercury in switches
3	Special ICs having tin-lead solder plating on leads used in professional equipment
4	Specific modular units including tin-lead solder being used in special professional equipment
5	Solders containing lead and / or cadmium for specific applications where local temperature is higher than 150 deg C and which need to work properly more than 500 hours
6	Lead in solder for printed circuit boards for emergency lighting products
7	Hexavalent chromium (Cr-VI) in chromate conversion coatings as surface treatment
8	Lead in gas sensors
9	PbO (Lead in Seal Frit) used for making BLU (Back Light Unit) Lamp
10	Cadmium in opto-electronic components
11	Non-consumer mechanical power transmission systems including speed reducers and mechanical couplings which rely on electrical / electronic components for safe control and operation
12	Electrical and electronic components contained in heating ventilation and air conditioning building systems, commercial refrigeration systems and transport refrigeration systems
13	Cadmium-bearing copper alloys
14	Electrical / electronic components contained in mobile and stationary air compressors and vacuum systems, compressed air contaminant removal systems and pneumatic contractor’s air tools
15	Electrical / electronic equipment that are: used in transport-aviation, aerospace, road, maritime, rail; installed into the fabric of buildings – elevators, escalators, moving walks, dumb waiter, and heating, cooling and ventilation systems, and fire and security systems; used in the energy generation and transmission; used in mining and mineral processing; used for non-consumer mechanical power transmission systems; industrial process pumps and compressors; used in industrial refrigeration; and used in military applications
16	Lead alloys as electrical / mechanical solder for transducers used in high-powered professional and commercial loudspeakers
17	Cadmium oxide
18	Solder tin of the thermo fuse with a defined low melting point
19	Lead in lead oxide glass used in plasma display panel (PDP)
20	Lead in solder on small PCB and tinned legs of primary components
21	Use of the not lead free component NEC V25 in the Memor 2000
22	Lead used in shielding of radiation for Non Medical X-ray equipment
23	Lead based solders sealed or captured within heat-shrinkable components and devices

Request set 3

Green recommends a proposed exemption is granted
Red recommends a proposed exemption is refused
Blue indicates a proposed exemption was withdrawn

1	On-Semi MCR265-10 SCR
2	Components NEC V55
3	The use of lead in solder applications for electronic components of musical instruments having an average lifespan in excess of 10 years
4	Lead solder alloy in Surge protective devices (SPDs) NO RECOMMENDATION POSSIBLE
5	Inventory of Special ICs having tin-lead solder on/in leads/balls, used in specialist/professional equipment
6	Lead alloys as electrical/mechanical solder for transducers used in high-powered professional and commercial loudspeakers
7	Solder containing lead for applications where the local temperature exceeds 150 C and reliable operation for a minimum of 30,000 hours is required
8	Tin-lead solder in the manufacture of professional audio equipment
9	Specific modular units including tin-lead solder being used in special professional equipment
10	Lead in electronic vacuum tubes
11	Lead in aluminium used in gas valves for domestic cooking appliances
12	“8. Cadmium and its compounds in electrical contacts except for applications of one-shot operation function such as thermal links and cadmium plating except for the applications banned under Directive 91/338/EEC amending Directive 76/769/EEC relating to the restriction on the marketing and use of certain dangerous substances and preparations.”
13	Lead in solder of parts recovered from gaming/amusement machines put on the market before 1/07/06 and reused for the same purpose within a manufacturer’s closed loop until July 2014
14	Lead in solders in components and assemblies used in non-consumer products, provided that: - such components and assemblies were purchased or are subject to a proven last-time buy contract placed before 1 July, 2006; and - such components and assemblies are used in models of EEE that were already available on the market before 1 July 2006
15	“8. Cadmium plating as defined in Directive 91/338/EEC except for applications banned under Directive 91/338/EEC amending Directive 76/769/EEC relating to restrictions on the marketing and use of certain dangerous substances and preparations.”

Request set 4

Green recommends a proposed exemption is granted
Red recommends a proposed exemption is refused
Blue indicates a proposed exemption was withdrawn

1	Cadmium and cadmium oxide in thick film pastes used on beryllium oxide substrates until January 1, 2008;
2	Gaskets of butyl rubber material vulcanised with chinondioxim and lead tetraoxide, for use in Aluminium Electrolytic Capacitors;
3	Sharp LQ104X2LX11 (formerly Fujitsu FLC26XGC6R-01);
4	Quartz Crystal Resonator and in Fine Pitch Electronics Systems used in the Swiss Watch Industry;
5	Cadmium in opto- electronic components; NO RECOMMENDATION POSSIBLE
6	Transducers used in professional loudspeaker systems, using tin-lead solder;
7	Tin-lead solder in the manufacture of professional audio equipment;
8	Components used in the manufacture of the Hog1000, Hog500, Event416, Event408, ESP2-24 and ESP2-48 lighting control consoles;
9	Specific modular units, including tin-lead solder, being used in special professional equipment;
10	Inventory of special ICS having tin-lead solder on/in leads/balls, used in specialist/professional equipment; NO RECOMMENDATION POSSIBLE
11	Cadmium Mercury Telluride;
12	Lead contained in Babbit lined bearings;
13	Cadmium alloys as electrical/mechanical solder joints to electrical conductors located directly on the voice coil in transducers used in high-powered loudspeakers;
14	Thermal cutoff with a fusible element that contains lead (and possibly cadmium, mercury and hexavalent chromium) for applications where normal operating temperature exceeds 140 C and reliable, predictable, operation for a minimum of 30,000 hours is required;
15	Mercury free flat panel lamp;
16	Electronic equipment where the reliability, durability and longevity of the equipment is paramount;
17	Semi Red Brass C84400, 81-3-7-9 or a similar Brass material. Used on radio frequency line sections;
18	Lead is used as an alloy to the copper in 6 to 8 % by weight. Needed for casting and machinability characteristics; NOT APPLICABLE - SAME REQUEST AS 17 (ABOVE)
19	Lead in solders for electronic equipments used for the monitoring, the protection and the safety of people in healthcare, telecare and emergency calls domains in professional and private sectors;
20	FPGA devices manufactured by Xilinx (XC5202-6VQ100C, XC4003E-3VQ100C and XC4013E-3PQ240C) containing lead solder (Pb) used in the plating of the device terminations;
21	Lead oxide in seal frit used for making window assemblies for argon and krypton laser tubes;
22	Smart card readers (product: GemSelf700-MS2, GCR700-3ZS, Vodafone D2 , GCR760 and GemSelf750 SV); NO RECOMMENDATION POSSIBLE
23	Use of mercury in Babcock’s DC plasma displays and use of Lead Oxide (PbO) in Babcock’s DC plasma displays frit seal. WORDING TO BE CLARIFIED

There are numerous less obvious but far reaching exempt clauses that could apply to your products. For more information, see Impact Assessments or contact us.

“You should refer to the Regulations themselves for a full statement of the legal requirements and in the case of any doubt take independent advice, including your own legal advice.”

(RoHS Regulations, UK Government Guidance Notes, November 2005)