Overshadowed by the U.S. Environmental Protection Agency’s (EPA) regulation of PFAS under the Safe Drinking Water Act and its designation of PFOS and PFOA as hazardous substances under CERCLA, Maine’s latest revision to its PFAS in Products Program may have been missed by many. Maine was the first state in the nation to require reporting for all PFAS-containing products sold, offered for sale or distributed for sale within its jurisdiction. But new legislation on April 16, 2024, marked the third time Maine has overhauled its regulation of PFAS in an attempt to make the program more manageable for business and regulators alike. In addition to significantly narrowing PFAS reporting requirements, Maine will delay its general ban on the sale of products containing PFAS from 2030 to 2032.
Originally, Maine required all manufacturers selling products with intentionally added PFAS to notify the Maine Department of Environmental Protection (MDEP) and to report specific information about the product by January 1, 2023. That deadline was later extended to January 1, 2025. With this latest legislative revision, the vast majority of manufacturers will no longer need to report to MDEP at all. Maine has revised its reporting obligation to apply only to manufacturers that produce products wherein the intentional addition of PFAS to the product is a “currently unavoidable use.” This more narrow pool of manufacturers must provide the required notice to MDEP by January 1, 2032. This is a significant narrowing of the reporting rule, which previously required manufacturers of products containing intentionally added PFAS, for any use, to notify MDEP.
Maine has defined “currently unavoidable use” (CUU) as “a use of PFAS that the department has determined by rule . . . to be essential for health, safety or the functioning of society and for which alternatives are not reasonably available.” The phrase “essential for health, safety or the functioning of society” means “a use of a PFAS in a product when the function provided by the PFAS is necessary for the product to perform as intended, such that the unavailability of the PFAS for use in the product would cause the product to be unavailable, which would result in: (i) [a] significant increase in negative health outcomes; (ii) [a]n inability to mitigate significant risks to human health or the environment; or (iii) a significant disruption of the daily functions on which society relies.” Currently, MDEP is engaged in a rulemaking to identify products that meet these definitions. Beginning in January 2024, MDEP began accepting requests for proposals from manufacturers seeking CUU determinations. MDEP anticipates releasing a pre-rulemaking concept draft list of CUU products for public input in May 2024, with the formal rulemaking expected to begin in September 2024.
Maine was also the first state in the nation to implement a full ban on PFAS being intentionally added to consumer products. This was set to go into effect in 2030 but has been delayed until 2032. Additionally, the revised legislation staggers the phaseout of consumer products containing intentionally added PFAS:
- January 1, 2023 – Phaseout of carpets, rugs or fabric treatments containing intentionally added PFAS
- January 1, 2026 – Phaseout of cleaning products, cookware, cosmetics, dental floss, juvenile products, menstruation products, textiles articles (excluding outdoor apparel for severe wet conditions or components of watercraft, aircraft or motor vehicles), ski wax and upholstered furniture containing intentionally added PFAS
- January 1, 2029 – Phaseout of artificial turf and outdoor apparel for severe wet conditions (unless the apparel is accompanied by a legible disclosure that it is made with PFAS chemicals) that contain intentionally added PFAS
- January 1, 2032 – Phaseout of any product containing intentionally added PFAS unless MDEP has determined that the use of PFAS in the product is a CUU
- January 1, 2040 – Phaseout of cooling, heating, ventilation, air conditioning or refrigeration equipment, refrigerants, foams, or aerosol propellants that contain intentionally added PFAS
Previously, Maine offered minimal exceptions to its regulation of PFAS. However, the revised legislation greatly expands the available exemptions to the production of (i) firefighting or fire-suppressing foam, (ii) medical devices regulated by the FDA, (iii) veterinary products regulated by the FDA, EPA or the Department of Agriculture, (iv) products developed for the purposes of public health, environmental or water quality testing, (v) products required to meet standards set by the Department of Transportation, FAA, NASA, the Department of Homeland Security or the Department of Defense, (vi) motor vehicles or motor vehicle equipment, (vii) watercraft or seaplanes, (viii) semiconductors, and (ix) nonconsumer electronics not ordinarily for personal use. Additionally, whereas previously an exemption existed for manufacturers employing fewer than 25 people, the revised legislation broadens that exemption to manufacturers employing 100 or fewer people.
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