PFAS Observer
On April 16, 2024, Maine enacted amendments revising the state perfluoroalkyl and polyfluoroalkyl substances (PFAS) law. This law generally prohibits the sale of products containing intentionally added PFAS and includes notification requirements for products with intentionally added PFAS that would continue to be sold. The recent amendments modified the effective dates of certain sales bans, revised the reporting requirements for PFAS product manufacturers, delayed the general ban on the sale of PFAS products from 2030 to 2032, and listed the categories of products exempt from the PFAS ban entirely. While this law remains one of the strictest PFAS laws nationally, the new amendments ease some of the burdens on manufacturers presented in the original bill.
Updated Sales Prohibitions Deadlines
The legislation created additional sales prohibitions for certain products with intentionally added PFAS with varying effective dates. These are displayed on the Maine Department of Environmental Protection (DEP) website and are listed below.
Currently Unavoidable Use Determinations and Reporting
Beginning in 2032, the Maine law will prohibit the sale of all products with intentionally added PFAS except for those products where the use of PFAS is a “currently unavoidable use” (CUU), as well as some limited other categories. The DEP will list the products and categories where the use of PFAS is determined to be CUU. Notably, to date there is no overarching exemption for industrial applications. Under the recent amendments, these determinations will last for five years. The DEP may thereafter engage in additional rulemaking to extend that period.
Additionally, the amendments revised the reporting requirements so that reporting applies only to products after (1) the sales ban for that product category and (2) the product has received a CUU determination. This reduces the burden on regulated industry as compared to the previous reporting compliance date of January 1, 2025.
Reporting Obligations
The DEP requires that manufacturers obligated to report must submit, among other information, a description of the product, an estimate of the units sold, the purpose of the PFAS in the product, the amount of each PFAS in the product and information regarding the manufacturer. Under the recent amendments, a manufacturer may report the total weight of a product if the manufacturer cannot provide information on the specific amount of each PFAS within the product. Further, manufacturers are only required to report information that is “known to or ascertainable by” the manufacturers. This standard requires a certain level of due diligence on behalf of the manufacturers.
Product Categories Not Covered Under the Law
The amendments provided a list of categories for which the PFAS law does not apply. This means there is no ban on intentionally added PFAS for these categories, nor do manufacturers of products within these categories need to report to the DEP.
These product categories are:
- Product for which federal law governs the presence of PFAS;
- Packaging;
- Used product or used-product component;
- Firefighting or fire-suppressing foam;
- Medical devices, drugs, etc., and products regulated by the FDA (Food and Drug Administration);
- Veterinary products regulated by the FDA, USDA (U.S. Department of Agriculture) or EPA;
- Products developed for public health, environmental or water-quality testing;
- Products required to meet standards or requirements of the DOT (Department of Transportation), FAA (Federal Aviation Administration), NASA, DOD (Department of Defense) or DHS (Department of Homeland Security);
- Motor vehicles and motor-vehicle equipment;
- Watercraft;
- Semiconductors, including equipment and materials used in manufacturing;
- Non-consumer laboratory equipment or electronics; and
- Equipment directly used in the manufacture or development of the above-exempted products.
Conclusion
The DEP is currently redrafting the relevant regulations in accordance with the amendments. The revised proposal will include information on the program implementation as a whole and the criteria for CUU proposals. The revised regulations are expected to be available for public review and comment in mid-summer 2024.
While the scope of Maine’s PFAS law has been moderately narrowed, this law still stands to place potentially tremendous pressure on regulated entities to conduct evaluations of both their own operations and those of their supply chain partners to ensure compliance. Regulated entities should consider the merits of maximizing the legal privilege that could protect internal evaluations. Conducting the evaluations as internal audits performed under the auspices of counsel would be more protective, for example.
As some of the deadlines discussed above are fast approaching, regulated entities may wish to develop strategies to obtain the necessary information from their suppliers, communicate effectively with governmental regulators and customers, and mitigate or offset potential liabilities.
Pillsbury has extensive experience assisting clients on matters related to PFAS and with respect to consumer protection laws, in general. If you are unsure whether your business is subject to or in compliance with PFAS regulation, contact Pillsbury for more information.