New regulations relating to batteries and accumulators

On 26 September 2008 the Batteries and Accumulators (Placing on the Market) Regulations 2008 came into force in the UK. They will apply to all batteries (whether single use or rechargeable) and battery operated appliances supplied or made available within the EU for the first time on or after 26 September 2008.

The Regulations partially implement the EU Batteries and Accumulators Directive 2006/66/EC (the "Directive") and repeal the existing UK regulations. Consultation on the implementation of the remaining provisions of the Directive covering the collection, treatment and recycling of waste industrial, automotive and portable batteries is expected this autumn.

The most significant effects of the Regulations are: (1) to widen the categories of batteries caught by the legislation; (2) to further reduce the percentage of heavy metals permitted in UK batteries; (3) to introduce new battery labelling requirements; (4) to ensure the easy removal of batteries from appliances and (5) to provide greater enforcement powers. Batteries or appliances on the market prior to 26 September 2008 may continue to be sold. They do not have to be withdrawn.

The scope of the regulations

The Regulations apply to all types of batteries, regardless of their shape, volume, weight, material composition or use and to all appliances into which a battery may be incorporated (apart from batteries used in equipment connected with the protection of the essential security interests of EEA states or equipment designed to be sent into space). This is a marked departure from the previous regulations, which only applied to batteries containing comparatively high amounts of mercury, cadmium or lead. The Regulations aim to provide greater coverage, by regulating ordinary consumer batteries in addition to heavy-duty industrial batteries.

Meaning of "battery"

A battery or accumulator is considered to be any source of electrical energy generated by direct conversion of chemical energy and consisting of one or more primary battery cells or consisting of one or more secondary battery cells.

Types of batteries identified

The Regulations identify 3 different types of battery:

(1) industrial

An industrial battery is a battery or battery pack of any size or weight, which is:

• designed exclusively
• for industrial or professional use
• used as a source of power for propulsion in an electric vehicle
• unsealed but is not an automotive battery or accumulator
• sealed but is not classified as a portable battery e.g. handheld terminals or professional video equipment

(2) automotive

An automotive battery means a battery that is used for the starting, lighting or ignition of the engine of a road vehicle. Batteries providing the power to drive electric vehicles are classified as industrial batteries.

(3) portable

A portable battery is any battery or battery pack which is:

• sealed
• can be hand carried by an average natural person without difficulty
• neither an automotive battery or accumulator nor an industrial battery e.g. triple AAA, laptop or mobile phone batteries and watch batteries

Meaning of "appliance"

Appliance is defined as any electrical or electronic equipment as defined by the WEEE ("Waste Electrical and Electronic Equipment) Regulations 2006 (as amended), which is fully or partly powered by batteries or is capable of being so.

Prohibited levels of heavy metals

The Regulations prohibit the placing on the market of any batteries containing more than 0.0005% of mercury by weight and portable batteries containing more than 0.002% of cadmium by weight. The Regulations exempt portable batteries used in emergency and alarm systems, medical equipment and those used in cordless power tools from the cadmium limit.

Button cells with mercury content up to and including 2% were exempt under the 1994 regulations and continue to be exempt under the Regulations. These cells are often used in hearing aids and their exclusion from the scope of the chemical content regulation is regarded as necessary given their important social function.
The prohibitions on mercury and cadmium do not apply to a battery, which is a component of a vehicle for the purposes of Regulation 6 of the End of Life Vehicle Regulations 2003 such as automotive batteries and certain industrial batteries as defined by the Regulations as other restrictions on concentration apply to such batteries. However, the End-of-Life Vehicles Directive only applies to passenger vehicles up to 3.5 tonnes in weight. For vehicles above this threshold the Regulations will apply.

Labelling requirements

The Regulations introduce a number of labelling requirements to all batteries or battery packs. A 'crossed out wheeled bin symbol' must be present and cover a defined area of any battery. In order to reduce implementation costs, this marking can be placed on the battery's packaging, rather than on the battery itself where the symbol, if it were to appear on the battery, would be smaller than 05x05cm.

Batteries exempted from the chemical content restrictions (including button cells), are subject to additional labelling requirements and must be marked with their chemical symbols; "Hg" or "Cd" as appropriate. The requirement of labelling batteries also extends to those containing more than 0.004% of lead. The chemical symbol "Pb" must be displayed on the battery or its packaging.

These labelling requirements have been adopted in order to assist the implementation of the provisions of articles 12 and 13 of Directive 2006/66, which aim to make it easier for batteries to be recycled.

Regulating the design of battery carrying appliances

Appliances carrying batteries must be designed in such a way that waste batteries can be easily removed from them and must include clear instructions for battery removal and the type of incorporated battery. These requirements previously only applied to batteries containing mercury, cadmium or lead. Under the Regulations, the battery removal requirements shall extend to virtually all new appliances, which carry a battery. There are some exempt appliances. For example, appliances, which require continuity of power supply for safety, performance, medical or data integrity reasons.

Enforcement of the regulations

The Secretary of State for Business, Enterprise and Regulatory Reform ("BERR") is responsible for enforcing the Regulations and is in the process of appointing an enforcement body. There is a power to conduct test purchases of any batteries and appliances in order to determine whether they infringe the Regulations. In addition, the Regulations give enforcement officers greater powers to collect evidence. If the enforcement body reasonably believes that a person possesses evidence that batteries or appliances breach the Regulations, it is empowered to issue a written notice to that person compelling the required documents or information. Enforcement officers have the power to enter premises in order to investigate the assembly, manufacture, and supply of batteries and appliances and to take photographs, measurements, samples and tests. It is a requirement for any person on the premises to give assistance to enforcement officers where necessary, in order that the testing of the batteries and/or appliances can be conducted with the minimum of complications. Failure to assist may be deemed an offence. The Regulations also require the supply of any requested information stored on record systems, such as computer databases and hard-copy files. This means that the enforcement body can request documents and information both by written notice, as described above, and in person through on-site enforcement officers. Once obtained, the information can be retained by enforcement officers for as long as is necessary, in order to successfully conduct the investigation. Enforcement officers are granted the power to specify areas of the premises and equipment that must remain undisturbed in order to carry out the testing which means effectively that they have the power to halt the production of batteries or appliances whilst the on-site inspections are undertaken.

A compliance notice may be issued to any person who places batteries and appliances on the market, which do not comply with the Regulations. The compliance notice must specify why the goods are suspected of infringing the Regulations and specify a course of action in order to ensure compliance or withdrawal from the UK market.

If a person receives a compliance notice and fails to take the stipulated action within the time specified, an enforcement notice may be served upon that person requiring appropriate actions within 21 days of service. Failure to comply may result in the commencement of proceedings.

Offences

It will be an offence to (1) fail to comply with an enforcement notice, (2) to place on the market batteries which exceed the maximum allowed percentage by weight of mercury or cadmium, (3) to place on the market unlabelled or incorrectly labelled batteries, (4) to place on the market appliances not designed in a way that waste batteries may easily be removed (5) to intentionally obstruct an enforcement officer and (6) to fail to provide information or to provide false or misleading information knowingly or recklessly. Those who fail to comply with an enforcement notice or with the permitted chemical content of batteries, will be liable on summary conviction to a fine not exceeding the statutory maximum in the Magistrates' Court (presently £5,000) or to an unlimited fine on conviction in the Crown Court. The penalty for failure to correctly label or incorporate batteries, to obstruct an enforcement officer, to fail to provide information or to provide misleading information is a fine not exceeding the statutory maximum in the Magistrates' Court (i.e. the matter cannot be referred to the Crown Court for sentencing).

Where the commission of an offence is due to anything which another person did or failed to do in the course of a business, that other person shall also be guilty of the offence and liable to be prosecuted against whether or not proceedings are taken against the other i.e potentially the supplier as well as the retailer may be liable. In addition where a body corporate commits an offence and it is proved that the offence was committed with the consent or connivance or as a result of the negligence of an officer of the organisation the officer shall also be guilty of the offence.

Where there has been a breach of the chemical content of batteries, the removal of batteries from appliances and the labelling of batteries, the court may require action in order to bring the non-compliant goods in-line with the Regulations. Remedial action such as labelling or withdrawing batteries may also be required for failure to comply with an enforcement notice. Remedial action may be ordered in addition to any fine. Certain offences may also lead to a separate order for the defendant to pay for the investigations carried out by enforcement officers including battery testing.

Defence of due diligence

In proceedings for an offence relating to the prohibitions on mercury and cadmium, the labelling of lead mercury and cadmium and or an enforcement notice, it is a defence for a person to have taken all reasonable steps and exercised all due diligence to avoid committing an offence. Where the defence involves an allegation that the commission of the offence was due to the act or default of another or due to reliance on information given by another, the Defendant must serve a notice on the prosecution specifying the appropriate person. Reliance on information provided by another must be reasonable in the circumstances.

BERR guidance identifies that there is no prescribed method to demonstrate compliance with the Regulations but those who place batteries or appliances on the market may want to consider obtaining assurances from their suppliers that the products supplied are in compliance and undertake analysis of materials used in the batteries being placed on the market. This is relevant in the context of the due diligence defence.

Action required

All those who propose to place batteries or battery operated appliances on the market in the UK should check that they comply with the Regulations. Additional checks should be implemented in order to minimise risk of non-compliance or to avail of the due diligence defence as appropriate. If a bespoke battery is being developed specific advice should be obtained.

To read our previous Law-Now bulletins on batteries legislation click here.


Co-authors Paul Sheridan, Olivia Quaid and Alex Morley. Please find contact details for Paul and Olivia below. Alex can be contacted at alex.morley@cms-cmck.com or at +44 (0)20 7367 2578.