TAKEAWAYS

• Maine proposes a new rule to its PFAS legislation, while the Massachusetts Legislature considers two bills around banning specific PFAS-containing products.
• Since many companies that do business in the United States do so nationwide, these laws stand to add additional tiers of compliance requirements for businesses with PFAS-containing product lines.
• Both states plan to establish registries of PFAS products, which could create additional avenues of liability exposure for companies with a nexus to these chemicals.

Maine Regulators Propose Rules Providing Guidance on Newly Enacted Ban on PFAS-Containing Products

The Maine Department of Environmental Protection has proposed a new rule intended to establish, in greater detail, the procedures necessary for compliance with Public Law c. 477, entitled “An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution.” As discussed in a previous post, this law, which went into effect January 1, 2023, imposes reporting requirements for consumer products with intentionally added per- and polyfluoroalkyl substances (PFAS) and phases out products containing PFAS beginning with carpets, rugs and fabric treatments. The proposed regulation largely echoes the language of the statute itself but does provide new definitions material to the statute’s “currently unavailable use” exemption and elaborates on the required content of the statutorily prescribed notices regarding PFAS-containing products.A public hearing is being held on the proposed rule on April 20, 2023, with comments due May 19, 2023.

Parties interested in influencing or narrowing the scope of the Maine PFAS law may wish to consider the benefits of submitting public comments by this deadline.

Massachusetts May Soon Prohibit the Sale of Any PFAS-Containing Products

The latest state to propose a statutory prohibition on the sale of PFAS-containing products is Massachusetts. The Massachusetts Legislature is considering two bills, one originating in the House, HB 2197, and the other in the Senate, SB 1356. If passed, they would ban the sale of the following specific types of products containing intentionally added PFAS by January 2026: 1) food packaging and 2) an enumerated list of consumer products: cookware, personal care products, children’s products, child passenger restraints, rugs and carpets, upholstered furniture and fabric treatments. Additionally, four years after the product-specific prohibitions go into effect, a wholesale ban on the sale or distribution of any products containing intentionally added PFAS would begin January 1, 2030.

Like other states that have already enacted PFAS restrictions under the auspices of consumer protection laws, Massachusetts’ definition of PFAS in the bills is broad, covering any fluorinated organic chemicals containing at least one fully fluorinated carbon atom. However, beginning in 2030, Massachusetts would also require manufacturers of the enumerated list of consumer products to test for the presence of unintentional PFAS.

In general, the obligation to comply with the bans rests with product manufacturers, distributors, wholesalers and retailers, meaning that any of these entities may be held liable for a violation. An exception pertains to food packaging, regarding which only the manufacturer of the packaging material or the entity that performs the packing is obligated to comply.

The Massachusetts bills contain two exemptions that apply to products aside from food packaging. If a regulated entity believes that the use of PFAS in a product is “essential for health, safety or the functioning of society” and that “alternatives are not reasonably available,” it can apply for an exemption from the sale prohibition. If granted, the exemption would last no more than three years, but would be eligible for renewal. The second exemption under the proposed bills is for the sale or resale of used products.

The Massachusetts bills also contain provisions that would obligate regulated entities that may lawfully distribute PFAS and PFAS-containing products within the state on and after January 1, 2026, to register their products on a Massachusetts State website and abide by notification and labeling requirements. The provisions are as follows:

• The registration obligation would create an inventory of the name and Chemical Abstracts Service (CAS) number of each PFAS in the product and the amount of product sold, delivered or imported into the state. The manufacturer would be required to update the registry upon agency request or whenever there is a significant change to the reported information.
• The notification obligation would require regulated entities to submit direct notices to downstream customers, including distributors and wholesalers, indicating that their products contain PFAS; the distributors and wholesalers, in turn, would be required to provide such notice to their retailers.
• The labeling requirements would require regulated entities to provide a notice of PFAS content on both a product’s online product listing and a label affixed to the product or its packaging. An exemption from the packaging label exists for products that cannot fit a label of at least two square inches and do not have an exterior container, wrapper, tag or other attachment on which the label or information could be attached or included.

Conclusion

Strictly speaking, these developments narrowly apply to commercial activities conducted in just two states. However, they are of broader practical significance, as many domestic and foreign companies that manufacture PFAS or PFAS-containing products and are engaged in commerce in the United States do business on a nationwide basis. Accordingly, such companies customarily strive for compliance with the most stringent set of state requirements to ensure compliance across all 50 states. As such, the further refinement of the Maine PFAS law and the pending Massachusetts bills stand to add additional tiers of requirements with which businesses with PFAS-containing product lines would have to comply.

Among other things, such laws will require or functionally require regulated entities to investigate their product lines for the presence of PFAS so that they may go about faithfully complying with the various requirements of these laws. In addition, these and other consumer protection statutes regarding PFAS stand to create additional avenues of liability exposure for companies with a nexus to these chemicals. For example, the registries of PFAS products that both Maine and Massachusetts plan to establish will create a readily available resource that governmental agencies, plaintiffs’ lawyers and others might use to initiate enforcement actions and/or lawsuits.

Finally, regulated entities that deal with PFAS-containing products that wish to avoid having to register their products or comply with the notification and labeling requirements may wish to avail themselves of exemptions, compliance extensions and/or product substitutions. Product substitutions performed hastily may give rise to interruptions in the flow of commerce and possible breaches of customer contracts.

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