What is Due Diligence for RoHS?

Due diligence is a legal defense available to companies whose products are found to violate RoHS.

UK Guidance Notes - February 2008

Under Articles 8 and 9, each member state determines the regulations, administrative provisions, and penalties for the enforcement of RoHS within its national boundaries. The United Kingdom has provided for the "defence of due diligence" in its regulations. Many other European nations are expected to follow suit.

The RoHS directive contains an absolute prohibition against placing non-compliant products on the market. Intent to violate RoHS is not needed for conviction. A company is guilty of a RoHS offense by the simple fact that its product is found to contain prohibited substances. 

To balance the scales of justice, UK regulations permit the defense of due diligence (see UK RoHS compliance website). It is not clear what mitigating effects a finding of due diligence will have upon the penalties, product recall or ban imposed for RoHS offenses until such matters are adjudicated through the courts. However, the regulations provide instruction in the steps companies are expected to take to comply with RoHS.

The defense of due diligence requires a person to show that he "took all reasonable steps and exercised all due diligence to avoid committing the offence." This requires identifying the risks at every stage of your business (design, supply, production, quality assurance, warehousing, sales, shipping) and putting into place a system of checks to prevent mistakes, or when mistakes are made to catch them early and correct them. Such a system must be monitored to ensure that it is actually used by your employees and that it works to prevent non-compliant products from being sold into the European market.

Simple reliance on information provided by others is not sufficient. You must assess the reliability of your supplier's information. You should adopt added verification measures for high risk suppliers and for high risk products or materials.  The larger your company, the more you will be expected to do. Adoption of accepted industry standards is a good first step.

Upon request, a company has 28 days to submit technical documentation showing that its product is RoHS compliant. Such documentation must be retained for four years after the product is put on the market.

Companies are required to identify the suppliers who provided information on which they relied to determine a product's RoHS compliance. Both OEM and supplier may be prosecuted for RoHS offenses. In addition to the corporate entity itself, a company's directors, officers and managers may be prosecuted personally for RoHS offenses.

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