Maine’s PFAS product reporting deadline is quickly approaching: Are you ready?

Do you manufacture, distribute, sell, or import products to or in Maine? Do any of those products, or their packaging, contain PFAS? If so, you may be prohibited from selling or distributing such products in Maine effective January 1, 2023 unless you comply with Maine’s PFAS notification statute. 

In July 2021, Maine adopted its Act to Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution (codified at 38 MRS § 1614). The statute requires “manufacturers” of products containing intentionally added PFAS to report information concerning such products to the state beginning January 1, 2023 and prohibits the sale or distribution of any such PFAS-containing products not reported. Maine’s ban on the sale or distribution of new carpets, rugs or fabric treatments containing intentionally added PFAS also takes effect on January 1, 2023.[1] The statute further bans the use of intentionally added PFAS in any product effective January 1, 2030. Manufacturers who fail to comply with Maine’s statutory requirements may face significant civil and/or criminal penalties. 

Use and regulation of PFAS in products

PFAS, short for per- and polyfluoroalkyl substances (PFAS), are man-made chemicals that include: PFOA, PFOS, GenX and many other chemicals. They have been manufactured and used in a variety of industries around the globe, including the United States since World War II. For example, PFAS have been used in non-stick cookware, stain- and water-resistant textiles, outdoor gear, food packaging, carpeting and fire-fighting foams. PFAS have been detected in surface water, groundwater, soil and the air and are commonly known as “forever chemicals” due to their persistence in the environment and failure to break down over time.  

In recent years, an increasing number of states have adopted statutes, regulations and other measures designed to reduce, restrict, phase down, ban or monitor the use of PFAS, particularly in consumer products. However, Maine’s statute is unique in that it applies to a wider variety of products and PFAS.  

Broad definitions pose potentially burdensome reporting obligations

Notably, Maine’s statute applies to any item manufactured, assembled, packaged or otherwise prepared for sale to consumers for “personal, residential, commercial or industrial use, including for use in making other products.” 38 MRS § 1614(1)(G). For purposes of reporting, a product includes all components and product packaging regardless of whether the manufacturer of the product is the manufacturer of the component or packaging. PFAS are considered to be “intentionally added” if they provide a specific characteristic, appearance, quality, or perform a specific function, such as waterproofing, resistance to staining or sticking, friction reduction, or chemical or temperature resistance. 38 MRS § 1614(1)(D).

The statute defines PFAS broadly to include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom. MRS § 1614(1)(F). Thus, unlike other statutes or regulations that focus on PFOS, PFOA, or other long chain PFAS, Maine’s statute does not distinguish between short or long chain PFAS, nor does it provide a listing of the specific PFAS subject to reporting.  Instead, the Department has stated that it interprets the term to include “any chemical containing at least one fully fluorinated carbon atom, which is a carbon atom on which all the hydrogen substituents have been replaced by fluorine…regardless of whether it is found on any list,” including U.S. EPA’s webpage of chemicals considered PFAS. This is significant because there are thousands of identifiable PFAS chemicals; however, the Department has acknowledged that only PFAS with a chemical abstracts service (CAS) registry number are subject to the reporting requirement. See Maine DEQ’s responses to Frequently Asked Questions.

The obligation to report falls to the product manufacturer; however, the statute broadly defines “manufacturer” to include “the person that manufactures a product or whose brand name is affixed to the product.” 38 MRS § 1614(1)(E).  If the manufacturer is a foreign entity that lacks a presence in the United States, the importer or first domestic distributor of the product, whichever is first to sell, offer for sale, or distribute the product in Maine, will be considered the manufacturer. Thus, a manufacturer may have a duty to report even if it did not directly, intentionally, or knowingly add PFAS to the finished product.  

Information to be reported

To comply with the statute, subject manufacturers must submit written notification to Maine’s Department of Environmental Protection, the agency charged with implementing the Act. The notification must include the following information:

1. A brief description of the product;
2. The purpose for which PFAS are used in the product (including components or packaging);
3. The amount of each PFAS in the product reported as an exact quantity determined using commercially available analytical methods and identified by CAS number;
4. Name and address of the manufacturer and name, address, and phone number of a contact person for the manufacturer; and
5. Any additional information established by the Department by rule.

The Department has also proposed, as part of its draft PFAS reporting rule, that manufacturers report estimated sales volume in Maine (or nationally) for each reported product. The draft rule would also require use of an online notification system and establish a fee schedule for notifications ($250 for first 3 notifications and $50 for each additional notification). Although the final rule will not be adopted before January 2023, the lack of a final rule will not pause or suspend the statutory reporting requirements.[2] Thus, if manufacturers wish to distribute or sell products containing intentionally added PFAS in the state of Maine on or after January 1, 2023, they must comply with the statutory reporting requirements or obtain an extension of time to comply.

Exemptions 

The statute specifies only two categories of products exempt from the statutory PFAS reporting requirement and ban: 

1. “Product[s] for which federal law governs the presence of PFAS in the product in a manner that preempts state authority” 
   
   On both its FAQ website and during its October 27, 2022 stakeholder engagement meeting, the Department noted that it is not aware of any federal law or regulation that would exempt any product from the statutory reporting requirements.
   
   
2. “Product[s] subject to Title 32, chapter 26-A or 26-B” of the Maine Revised Statutes
   
   Chapters 26-A and 26-B prohibit the sale of packaging containing certain contaminants, including PFAS in food packaging, when DEP determines a safer alternative is available and provide mechanisms for DEP to identify and prohibit priority food contact chemicals in food packaging.  While historically, these provisions have been interpreted as exempting food packaging from the PFAS reporting requirement, the DEP recently announced that the exemptions would only apply after DEP finalizes rulemaking specific to PFAS under Chapters 26-A and 26-B, which it has not yet done. As a result, DEP has stated that food and other packaging containing intentionally added PFAS is subject to the PFAS reporting requirements.

Extensions of time to comply and next steps

Manufacturers who need additional time to determine whether their products contain intentionally added PFAS or to gather the information necessary to report can request an extension by contacting the Department at PFASProducts@Maine.gov Such requests will be considered by the Department on a case by case basis. A list of the manufacturers who have received extensions is posted on the Department’s website.

DEP does not currently have an electronic database or other formal system in place for reporting PFAS containing products. DEP is working with the Interstate Chemicals Clearinghouse to develop a publicly available reporting database; however, the Department does not anticipate that the database will be available prior to January 1, 2023. In the interim, the DEP has indicated that it will accept notifications by mail or email to PFASProducts@maine.gov  

Public scrutiny and regulation of PFAS in products is only likely to increase in the coming years and to better prepare, manufacturers, importers, retailers and others need to understand how their products are made and the chemicals they contain. Depending on the nature of the product and its manufacture, such inquiries may take considerable time and energy; however, such knowledge will be essential to better understand and mitigate potential risks posed by PFAS. 

If you have questions regarding this article or the regulation of and reporting obligations for PFAS generally, please contact Sara Chamberlain or Eric Boyd in Thompson Coburn’s environmental practice area.

[1] The statute permits the Department to exempt, through rulemaking, certain uses of PFAS from the 2030 ban if such use is deemed unavoidable; however, the Department has not yet made any unavoidable use determinations.

[2] Additional information on the Department’s proposed rule and responses to FAQs can be found on the Department’s website or by viewing the October 27, 2022 Stakeholder Engagement Meeting on PFAS in Products.