In July 2021 the Maine Legislature enacted HP 1113 or LD 1503, “An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution,” which took effect January 1, 2023. This legislation is the first of its kind in the United States related to the direct usage of per- and polyfluoroalkyl substances (PFAS) in new products. The statute is two-tiered. The first tier is an outright prohibition, effective January 2023, on the sale or distribution of carpets, rugs, and fabric treatments with intentionally added PFAS. The second tier requires all other products that contain intentionally added PFAS to register with Maine’s Department of Environmental Protection (MDEP). MDEP may identify registered products, by category or use, that may not be sold or distributed in the state. Entities must notify persons who sell or distribute that product that the sale of that product is prohibited in Maine, as well as provide MDEP a list of those notified. MDEP’s discretion on product prohibition will be based on its judgment of which products are most likely to contaminate the state’s land or water. Effective January 1, 2030, all products with intentionally added PFAS will be prohibited from sale or distribution in the state, unless MDEP exempts the product because the usage is specifically designated and approved. The law also requires entities to provide MDEP with a certificate of compliance attesting that the product does not contain intentionally added PFAS if the product is not registered with the state and MDEP has a reason to believe that the product contains intentionally added PFAS.

While the goals of the legislation are laid out in the law, the rules to implement the components of the law are still under development by MDEP. Key elements of the draft rules include:

• A manufacturer of a product for sale in the state and containing intentionally added PFAS with an associated CAS Registry Number shall submit to the State of Maine written notification about the purpose of using PFAS in their product, amount used, and other manufacturing information.
• Manufacturers must provide written notification of any significant change in such information or upon request by the State.
• Products that contain PFAS that must comply with federal government regulations may be exempt from state rules.
• Except for resale, no one may sell, offer for sale, or distribute for sale carpets, rugs, or fabric treatments that contain intentionally added PFAS.
• Maine’s law will ban use of all PFAS in products, except for essential uses, by 2030.

Manufacturers, distributors, sellers, and importers should be aware of the requirements of the law, as it can impact the ability to sell products in the state of Maine and significant fines may be assessed for noncompliance. Manufacturers and distributors were allowed to petition for extensions to review their materials and to solicit information from their suppliers and the industry. The state has granted extensions to hundreds of companies that petitioned for them, while denying others.

Updated Compliance Information and Ability to Comment on New Rules

In February, 2023, MDEP proposed a new rule, Chapter 90, to clarify notification requirements, sales prohibitions, enforcement, fees, specific definitions, and other details related to the new law. MDEP also opened a public comment period for entities to ask questions and provide comments about the proposed rulemaking. Comments must be submitted in writing by 5 p.m. on May 19, 2023. MDEP will hold a public hearing at the Augusta Civic Center (76 Community Drive, Augusta, Maine) on April 20, beginning at 9:00 a.m.

Chapter 90 provides the following key definition clarifications:

• Currently unavoidable use means a use of PFAS that the MDEP has determined by rulemaking to be essential for health, safety, or the functioning of society and for which alternatives are not reasonably available.
• Intentionally added PFAS means:
  • 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
  • PFAS that results from degradation by-products serving a functional purpose or technical effect within the product or its components
  • Products that consist solely of PFAS
  • PFAS present in a product as a contaminant that does not impart a desired attribute to the product is not intentionally added.
• Product means:
  • An item manufactured, assembled, packaged, or otherwise prepared for sale to consumers, including its product components, that is sold or distributed for personal, residential, commercial, or industrial use, including for use in making other products
  • Packages, packaging components, and food packaging as defined in 32 M.R.S. § 1732, when sold individually or in bulk and not used in marketing, handling, or protecting a product.
• Significant change means:
  • A change in composition of a product that results in the addition of a specific PFAS
  • A greater than 10 percent change in the concentration of PFAS, above the method variability allowed by the commercially available analytical method used, and compared to the concentration reported in the existing notification
  • A change in responsible official or contact information.

Among the complexities of PFAS regulation are the many definitions of PFAS and many lists of such substances. The U.S. Environmental Protection Agency (EPA), for example, has a webpage that lists chemicals that have been identified as PFAS. Regardless of whether an intentionally added PFAS is included on EPA’s list, however, MDEP requires reporting of any product sold, offered for sale, or distributed for sale in the state of Maine if it contains intentionally added PFAS.

Exceptions to the Ban

Chapter 90 clarifies the following exceptions to the ban:

• A product for which federal law or regulation preempts state guidance
• A product subject to Maine Title 32, § 26-A, Reduction of Toxics in Packaging
• A product subject to Maine Title 32, § 26-B, Toxic Chemicals in Food Packaging
• A used product is defined as one where the “condition of a product having been installed, operated, or utilized for its intended purpose by at least one owner or operator.” Products that have been returned to the retailer are not considered used products.

Companies are encouraged to review the specifics of Chapter 90 to make sure they understand and comply with the proposed regulations. Entities have until May 19, 2023, to submit questions and comments to MDEP for review before the rule is finalized.

Pending State Litigation

The Maine State Attorney General has recently filed lawsuits against chemical manufacturers of PFAS alleging that they promoted their product as “safe” even though the product posed risks to individuals and the environment. Maine joins more than 15 other states that have sued PFAS manufacturers for PFAS contamination.