Legal wrangle continues over WEEE and printer cartridges

The Government has conceded for the first time that it could choose to include printer cartridges in its forthcoming legislation to implement the EU Directive on waste electrical and electronic equipment - but its overriding policy of avoiding "gold plating" of EU rules stands in the way.

Industry Minister Stephen Timms told a recent parliamentary inquiry that printer cartridges were "by far the biggest issue in terms of the postbag that I have received" on the WEEE Directive. In the Commons, more than 60 MPs have signed an early day motion criticising the Department of Trade and Industry over its plan to exclude the products from the implementing regulations due later this year.

This pressure reflects lobbying successes by the cartridge remanufacturing industry, which puts about 30% of the 40 million cartridges sold in the UK each year back into use. The industry alleges that the growing use of smart chips as anti-competitive devices by original equipment manufacturers could put it out of business within two years (ENDS Report 342, p 33 ).

Opening an adjournment debate on the issue in the Commons on 31 March, Huw Edwards (Monmouth, Lab) said that "nearly all new laser toner cartridges sold by international companies, such as Hewlett Packard, Lexmark and Xerox, contain such microchips, which can prevent or make uneconomic their remanufacture and use."

Current practices, said Mr Edwards, "include using highly encrypted microchips to control cartridge functions, which prevent cartridges from being used a second time." In theory, substitute chips might sometimes be available to remanufacturers, but "with ever more encryptions being applied to the chips, the time and cost of producing a substitute mean that it is increasingly likely that they will not be available in future."

Remanufacturers have been urging the DTI to provide them with statutory protection by including printer cartridges in the forthcoming regulations to implement the WEEE Directive. They are particularly keen on Article 4 of the Directive, which prohibits design features that prevent WEEE from being reused.

However, the Government maintains that printer cartridges are "consumables" and therefore outside the scope of the Directive except when they happen to be in equipment when it is discarded - though it has yet to explain how Article 4 could in practice be applied to such cartridges but not others.

Echoing remanufacturers' counter-arguments, Mr Edwards said that printer cartridges appeared to meet the Directive's definition of "electrical and electronic equipment" and should be treated as such rather than as consumables.

Moreover, he asked, "does the Directive provide the Government with the scope to include cartridges [in its implementing legislation] if they choose to do so? That last question is absolutely critical, because if the Directive allows printer cartridges to be included, the Government must explain why they refuse to do so. I understand that as the Directive is a minimum harmonisation measure it does indeed allow the Government to include cartridges."

Mr Timms conceded that that was the case, accepting that "it might technically be possible for us to add cartridges to the scope of our UK implementation."

However, that would leave the Government "open to challenge" - though by whom he did not explain - on the grounds that it is "very hard" to define cartridges as electrical or electronic equipment.

Then came the familiar bastion of the beleaguered Minister: he had "not seen a strong case for gold plating the Directive in the way implied."

Mr Timms rested much of his case for resisting remanufacturers' campaign on what he suggested was their practical self-interest.

If cartridges were covered by the regulations, he said, manufacturers would have to support collection and recovery of cartridges sold to domestic consumers, giving them a strong incentive to take back old cartridges when supplying new ones and so keeping them off the remanufacturing market.

Moreover, remanufacturers might themselves become liable for the end-of-life costs of cartridges they put back on the market, saddling them with costs which they currently did not bear.

But the Minister then muddied the water over how the DTI was thinking about implementing Article 4. "We are," he said, "weighing the fact that the majority of respondents to our recent consultation on implementation supported our proposals for a voluntary non-legislative approach, with a suggestion of a business forum to consider eco-design."

In fact, only part of Article 4 - which provides that Member States should "encourage" eco-design - is amenable to implementation by voluntary means. The other part says that Member States "shall" take measures to prevent producers from using design features to inhibit WEEE reuse, and there are many precedents to suggest that this requires a legislative approach.

Mr Timms added that any use of "killer chips" which prevent reuse of printer cartridges could be tackled by the Office of Fair Trading.

He also revealed that the DTI and the Environment Department (DEFRA) brought together several leading cartridge producers with members of the UK Cartridge Remanufacturers Association in late March, and there were "high hopes that the dialogue can be taken forward so that there can be more of a common understanding of the issues surrounding cartridge reuse."

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