- What is Happening? On July 15, 2021, Maine adopted a law that will ban the use of perfluoroalkyl and polyfluoroalkyl substances (PFAS) in products. While the law takes a phased approach over the next few years, it will essentially ban the sale of new products that contain intentionally added PFAS starting January 1, 2030. Maine's Department of Environmental Protection (Maine DEP) will be empowered to enact exemptions by designating certain uses as currently unavoidable. The law also requires manufacturers of products containing intentionally added PFAS to notify the Maine DEP of such products and uses beginning January 1, 2023.
- Who is Impacted? Manufacturers, distributors, and retailers who sell new products containing intentionally added PFAS.
- What Should I Do? Product manufacturers should work with supply chain partners to confirm whether their products contain intentionally added PFAS. If so, product manufacturers should begin gathering information to provide the required notice to the Maine DEP by January 1, 2023.
What are PFAS?
PFAS are human-made chemicals that, according to U.S. EPA, are used across a variety of industries for manufacturing and in products including stain- and water-repellent fabrics, nonstick products, polishes, waxes, paints, cleaning products, fire-fighting foams, and other materials. The Maine law defines PFAS as "substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom."
Under the new law, manufacturers of all new products containing intentionally added PFAS must notify the Maine DEP of their use of PFAS for each of their PFAS-containing products starting January 1, 2023. The law defines "intentionally added PFAS" as "PFAS added to a product or one of its product components to provide a specific characteristic, appearance or quality or to perform a specific function...[and also] includes any degradation byproducts of PFAS." The notification must include: a description of the product, the purpose of using PFAS in the product or a product component, the precise amount of each type of PFAS in the product, the contact information of the manufacturer, and any additional information required by the Maine DEP. The Maine DEP may require a fee to be paid by the manufacturer upon submission of the required notification information.
With the Maine DEP's approval, a manufacturer may supply the information required for a product category or type rather than for each individual product. The Maine DEP may also waive the notification requirement where it determines substantially equivalent information is already publicly available and it may also extend the notification deadline if more time is needed for a manufacturer to comply. Notification is not required where regulation is preempted by federal law and for products governed by Maine's toxic chemicals in packaging and food packaging laws (Title 32, Chapters 26-a, 26-b).
If the Maine DEP has reason to believe a product contains intentionally added PFAS and proper notification was not provided, the Maine DEP may require the manufacturer to, within 30 days, either (a) provide the department with an attestation that the product does not intentionally contain PFAS or (b) notify sellers of the product in Maine that the sale of the product is prohibited and provide information of those notified to the department.
Prohibition on Use in Products
The Maine law takes a phased approach by initially banning new carpets, rugs, and fabric treatments that contain intentionally added PFAS as of January 1, 2023. Starting January 1, 2030, the sale or distribution of any new product containing intentionally added PFAS will be prohibited. Through the rulemaking process, the Maine DEP may also, even before 2030, prohibit product categories or uses if they contain intentionally added PFAS.
The Maine law does not incorporate exemptions common in laws restricting the use of chemicals in products. For instance, the law does not contain an exemption for spare parts or certain specialized equipment, nor does it incorporate a de minimis exemption. The Maine DEP may, however, designate certain uses of PFAS through notice and comment rulemaking as "currently unavoidable," which would exempt those uses from the restriction that goes into effect in 2030.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.