PFAS Observer
As the U.S. Environmental Protection Agency contemplates significant reductions in scope to its one-time reporting rule for per- and polyfluoroalkyl substances (PFAS) under Section 8(a)(7) of the Toxic Substances Control Act (TSCA), state laws linger. In particular, it may be worthwhile for companies to revisit the Maine and Minnesota PFAS in products laws, which apply broadly to consumer and commercial products.
Maine
In 2021, Maine enacted 38 M.R.S. § 1614, a sweeping and, in many ways, unprecedented state law to regulate PFAS in consumer and commercial products. Administered by the Maine Department of Environmental Protection (MDEP), the law created a two-part framework. The first part required manufacturers to notify MDEP of products that they introduce into Maine commerce that contain “intentionally added” PFAS (broadly defined).1 The second part entailed a broad prohibition on the sale and distribution of such products, to be implemented in several phases.
The law has since been amended to eliminate the initial notification requirement altogether due to difficulties that MDEP encountered in implementing this portion of the law.2 But the series of product phaseouts remains, highlighted by a prohibition on the sale or distribution of almost all products with intentionally added PFAS by 2032.
However, exceptions to these phaseouts exist for products that the MDEP determines constitute “currently unavoidable uses” (CUUs). Such CUU designations are appropriate for products that confer a benefit, where the presence of PFAS is essential to product functionality, and where viable alternatives to PFAS do not exist. Industry has had the opportunity to petition MDEP for such designations and will have opportunities again in the future (see below).
The full schedule of sales prohibitions can be found on the MDEP website and is listed here.
Maine
(all dates effective January 1)
2023
| Carpet or rug |
| Fabric treatment |
| Fabric treatment that does not contain intentionally added PFAS, but is sold, offered for sale, or distributed for sale in a fluorinated container or in a container that otherwise contains intentionally added PFAS |
2026
| Cleaning product |
| Cookware product |
| Cosmetic product |
| Dental floss |
| Juvenile product |
| Menstruation product |
| Textile articles (with exception) |
| Ski wax |
| Upholstered furniture |
| Products listed that do not contain intentionally added PFAS but are sold, offered for sale, or distributed for sale in a fluorinated container or in a container that otherwise contains intentionally added PFAS. |
2029
| Artificial turf |
| Outdoor apparel for severe wet conditions unless accompanied with a disclosure: “Made with PFAS chemicals.” |
2032
| Any products containing intentionally added PFAS sold in Maine unless the use of PFAS in the product is a currently unavoidable use. |
| Products that do not contain intentionally added PFAS but that are sold, offered for sale, or distributed for sale in a fluorinated container or in a container that otherwise contains intentionally added PFAS. |
2040
| Cooling, heating, ventilation, air conditioning or refrigeration equipment. |
| Refrigerants, foams or aerosol propellants.. |
Although MDEP has already solicited industry input on CUU determinations, opportunities to secure CUU status for products will exist in the future. Specifically, businesses must submit proposals for CUU determinations to MDEP no earlier than 60 months and no later than 18 months before the applicable sales prohibition.3 Once approved, CUUs are effective for a five-year period following either the effective date of the rulemaking or the date of the sales prohibition, whichever is longer. Although the formal notification deadline has passed for the 2026 product prohibitions, it is our experience that MDEP would still consider a well-argued case for a CUU determination.
With regards to enforcement, MDEP has indicated in its Chapter 90 rule that its focus will be on “encouraging voluntary compliance.” However, MDEP is empowered under 38 M.R.S. §§ 347-A – 349 to issue civil penalties of up to $10,000 for each day that manufacturers are in violation.
Minnesota
In 2023, the Minnesota legislature passed Minnesota Statute § 116.943—commonly known as Amara’s Law. As with the Maine law, Amara’s Law also regulates PFAS in consumer and commercial products by instituting a manufacturer reporting requirement, and a phased prohibition on the sale and distribution of products containing intentionally added PFAS.4 Because Minnesota has used Maine’s law as a model, many terms and definitions in the Minnesota Statute are similar or identical. This includes the definitions of “manufacturer,” “PFAS” and “CUU.”
Under Subdivision 2, every manufacturer of a product sold, offered for sale, or distributed in Minnesota that contains intentionally added PFAS must submit a notification to the Minnesota Pollution Control Agency (MPCA). All manufacturers are responsible for submitting notice to MPCA for each product and component unless manufacturers in the same supply chain enter into an agreement to establish their respective reporting requirements.5 Moreover, each manufacturer or group of manufacturers is obligated to either recertify its report annually or submit an updated report if a significant change is made to the product, new product information was provided to the manufacturer, or a new product not covered by an existing notice is sold or distributed in state.6
The rules and fees associated with this general notification requirement are currently being finalized by MPCA and are projected to be adopted by January 2026. The deadline for manufacturers to submit initial reports is July 1, 2026; however, MPCA must extend this deadline by 90 days if it determines that more time is justified for the manufacturer to comply with reporting requirements. Manufacturers may apply for an extension up to 30 days prior to the reporting deadline.
If a manufacturer wishes to continue selling a product with intentionally added PFAS after the phaseout provision is effective, it must apply to the MPCA for a CUU. Minnesota is currently drafting rules on the specific criteria and process for determining whether a product qualifies as a CUU. MPCA has submitted draft rules for public comment but there is no estimated timeline for the release of proposed rules or final adoption.
Under Amara’s law, the deadline for phasing out certain consumer products has already passed (see the table below) with the next deadline not until January 1, 2032. From that date on, it will be unlawful to sell, offer for sale, or distribute any product containing intentionally added PFAS in Minnesota unless it is designated as a CUU. The schedule of product phaseouts can be found on the MPCA website and is listed here.
Minnesota
(all dates effective January 1)
2025
| Carpets or rugs |
| Cleaning products |
| Cookware |
| Cosmetics |
| Dental floss |
| Fabric treatments |
| Juvenile products |
| Menstruation products |
| Ski wax |
| Upholstered furniture |
2032
| Any product that contains intentionally added PFAS, unless the commissioner has determined by rule that the use of PFAS in the product is a currently unavoidable use. The commissioner may specify specific products or product categories for which the commissioner has determined the use of PFAS is a currently unavoidable use. |
Notably, Amara’s Law also outlines four specific exemptions where the statute does not apply. These are (1) products whose PFAS content is already regulated under federal law, (2) medical devices and drugs regulated by the FDA, (3) products covered under existing Minnesota state PFAS statutes (notably firefighting foam and food packaging), and (4) the sale or resale of used products containing PFAS.7
The MPCA may enforce Amara’s law under Minnesota Statute §§ 115.071 and 116.072 which include civil penalties of up to $15,000 per day of the violation.