Ask the Experts: October 11 Edition

Ask the Experts: October 11 Edition

Our regulatory subject matter experts are always helping a range of stakeholders solve compelling regulatory challenges associated with supply chain data management. We compile these insights to help educate compliance professionals through content, webinars and events, and to provide Assent’s clients advice. Here are the top five questions our Regulatory team has responded to over the past month.

Question: Some customers have requested that our company not use a list of specific list of chemicals they’ve banned in their products. These chemicals are not restricted under the Restriction of Hazardous Substances (RoHS) Directive, the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulation or the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). Because this is not a government regulation, do I have to comply?

Travis Miller: It all depends on why the chemicals are banned. The customers making this request may sell products into a region where these substances are regulated and restricted, or the chemicals may not be usable or otherwise they may be in the process of being phased out.

Assuming the chemicals in question are not regulated in a market in which your company’s products are sold, there is no regulatory reason to comply with their request, though your non-compliance could have contractual consequences. The majority of data requirements between supply chains arise from commercial reasons and not regulatory reasons.

Find out about how Assent can help you acquire the full range of supply chain data with our guide the Assent Compliance Platform: Building Value Into Your Supply Chain Data Management Program.

Question: Cobalt reporting is not yet required by any international legislation or regulation, though many companies receive requests from their customers. How do these companies handle cobalt reporting requests? Further, will cobalt reporting ever be required by legislation?

Jared Connors: Companies of all sizes have been turning to the Responsible Minerals Initiative’s Cobalt Reporting Template (CRT), which has already been downloaded over 14,000 times in the second quarter of 2019. Cobalt can be found in alloys, magnets and battery cells, to name just a few applications. More and more organizations are continuing to get involved in voluntary Responsible Minerals reporting.

There are two major motivations for this:

  • Companies need to keep up with market expectations from customers, investors and non-governmental organizations.
  • Suppliers working with companies leading the charge on voluntary cobalt reporting need to provide detailed source of origin data.

If your customers are requesting cobalt reports, supporting their source of origin programs through detailed data collection is the best way to get out ahead of these requests. Materiality assessments can be done commodity by commodity, and materials engineers can be used to assess the scope. Alternatively, you could rely on test reports or full material disclosures. However, the most common option by far is to ask suppliers to declare if products or components could contain cobalt.

Finally, it is highly unlikely that cobalt reporting will ever be legislated, as legislators never intended for that to happen. Their goal was to get the ball rolling, so to speak, allowing the market to build continued pressure for companies to do more with regard to responsible mineral sourcing.

Question: Are products and components with materials listed under the European Union (EU) Biocidal Products Regulation (BPR) obligated to report copper content within their products if the products are not intended for biocidal use?

Neil Smith: Many companies with copper products have expressed concerns over compliance with the EU BPR, including members of the automotive industry and representatives of the copper industry.

The good news is that the BPR applies to biocidal products and treated articles, with biocidal products defined as “any substance or mixture, in the form in which it is supplied to the user, consisting of, containing or generating one more active substances, with the intention of destroying, deterring, rendering harmless, preventing the action of, or otherwise exerting a controlling effect on, any harmful organism by any means other than mere physical or mechanical action.”

In short, a biocidal product is intended to perform some sort of biocidal action using an active biocidal substance. According to the European Copper Institute (ECI), “the criterion of intentionality is essential in these definitions.” For example, ethanol, silver, copper and citric acid are all biocidal active substances, but the products or articles containing these substances are only considered biocidal if their intended use aligns with the BPR’s definition.

The ECI uses vodka and silverware as examples of this intentionality. Vodka is a mixture of ethanol (alcohol) and water; it’s sold as an alcoholic drink. Silver is also known to have biocidal properties, but silverware is sold as an eating utensil.

Copper, meanwhile, is widely used for conductivity, durability or aesthetics, not for the purpose of affecting a harmful organism. Unless the products you’re looking to sell are intended to affect a harmful organism and are marketed as such, the BPR’s provisions do not apply.

Question: How do motorcycles compare to cars with regard to regulatory controls? Are they within scope of the same regulations, or are there specific exemptions or requirements that apply?

Neil Smith & Raj Takhar: Because cars are in-scope of the End-of-Life Vehicle (ELV) Directive, they are exempt from the RoHS Directive. These regulations are often thought of as being in opposition to one another, with parts scoped under the RoHS Directive being out-of-scope of the ELV Directive, and vice-versa.

By comparison, motorcycles are exempt from both the RoHS Directive and ELV Directive, but they do fall in scope of the REACH Regulation because they are still articles placed on the market. Further, batteries used in motorcycles are in-scope of the EU Battery Directive.

Question: My company refurbishes and repairs products and equipment for our customers and loans out replacements in the interim. Some of these loaned items come from sites or subsidiaries within the European Economic Area (EEA), while some come from outside the EEA. These loaned products or pieces of equipment are not sold within the EEA, but because they may need to be imported, would these products fall under REACH Regulation requirements? Do we need to provide documentation for these items?

Steven Andrews & Neil Smith: Within the EEA, products or equipment loaned to companies are generally regarded as being placed on the market. As such, they would need to comply with any applicable legislation, regardless of the fact that they are being provided as a loan.

Furthermore, Article 33 of the REACH Regulation communication requirements for substances of very high concern (SVHC) would still apply. Regardless of whether a product is sold, leased or loaned within the EEA, manufacturers are required to identify the presence of SVHCs and provide safe usage information.

For more questions and answers, visit the last edition of Assent’s Ask the Experts blog.

Assent’s regulatory subject matter experts frequently participate in events such as webinars to educate compliance professionals. They also inform our clients’ regulatory programs. To learn more, contact