Maine recently published proposed rules (PDF link) aimed at implementation of its existing statute (which we’ve discussed here, here and here) limiting the sale and distribution within the state of products containing intentionally added per- and polyfluoroalkyl substances (PFAS), including long-awaited details on the criteria and process by which entities subject to the law can obtain exemptions for “currently unavoidable uses” (CUU). If the draft rules are issued as final in their current form, initial CUU proposals would be due to the Maine Department of Environmental Protection (MDEP) no later than 18 months prior to the applicable sales ban; for category-based sales bans that take effect in 2026, the initial CUU proposals would be due no later than June 1, 2025.
The primary takeaway from the proposed rules is that Maine appears to be setting a high bar for a determination that an intentional use of PFAS in a product would be considered a currently unavoidable use. Products that are required to meet certain federal standards or that are regulated under certain federal programs (in a manner that preempts state authority) would be exempt from the CUU process, however, as would a limited set of other categories of products as discussed below.
Under MDEP’s rules proposal CUU is defined as “a use of PFAS that the department has determined by rule under this section to be essential for health, safety or the functioning of society and for which alternatives are not reasonably available.” And the phrase “essential for health, safety or the functioning of society” is defined to mean:
a use of 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:
- A significant increase in negative health outcomes;
- An inability to mitigate significant risks to human health or the environment; or
- A significant disruption of the daily functions on which society relies.
If a CUU determination is granted, it will have a defined expiration date, after which any further sales will be prohibited; if the manufacturer believes the reasons for the CUU persist, they can submit a proposal for a new CUU determination. As drafted, the rules would require proposals for a CUU determination to contain at minimum, the following information:
(1) a description of the type of product to which PFAS is intentionally added;
(2) an explanation why availability of PFAS in the identified product is essential for health, safety, or the functioning of society (including any negative impacts from unavailability of PFAS for use in the product and subsequent unavailability or unsatisfactory performance of the product);
(3) a description of how specific use of PFAS in the product is essential to the function of the product (including if use of PFAS is required by federal or state law or regulation, or any required specific characteristics of the product that necessitate the use of PFAS);
(4) a description of whether any alternatives for the specific use of PFAS are reasonably available;
(5) a listing of federal regulations, other Maine regulations, and regulations of other states which the product is subject to by reason of containing intentionally added PFAS, including other sales bans and/or CUU processes that might be applicable [note that as of this writing, 13 states have enacted various restrictions that might apply to categories of products with intentionally added PFAS; none of these other states has yet promulgated regulations concerning a CUU process, although Minnesota is developing a rulemaking of its own];
(6) in case of other-jurisdiction sales bans without any CUU determination, a list of comparable products for sale within that jurisdiction;
(7) a discussion of why similar products that are compliant with sales bans in other states are not reasonably available alternatives in Maine;
(8) contact info for the submitter of the CUU proposal; and
(9) any information known or reasonably ascertainable by manufacturer regarding impacts on human health or environment of PFAS in the product (including pathways for human exposure or environmental release, product’s fate at end of lifecycle, stewardship programs, intended disposal methods, recycling rates).
The draft rules further provide that proposals for CUU determinations may be submitted by manufacturers individually or collectively.
We are following the rulemaking process and will update again as events warrant. In the meantime, manufacturers with products containing intentionally added PFAS in the categories that will be subject to Maine’s first round of sales bans effective January 1, 2026 should consider working with legal counsel to evaluate the proposed criteria and how they might approach the CUU process, which could involve making a submittal for CUU determination as soon as June 1, 2025.
[View source.]
