Maine PFAS Consumer Products Law Is First Of Its Kind

Jul 14, 2020 | Environmental, PFAS, Toxic Tort | 0 comments

On July 2, 2020, Maine became the first state in the United States to require manufacturers and distributors of children’s products that contain PFOS and that are sold in Maine to follow strict reporting requirements.  This is an unprecedented piece of legislation that received very little fanfare or press; however, it will have incredible implications on any company located in Maine or that does business with consumers who are located in Maine.

BACKGROUND

In 2015, Maine listed PFOS and its salts as ‘Chemicals of High Concern’ under the Toxic Chemicals in Children’s Products Law, 38 M.R.S. §1691, et seq.  The listing qualified PFOS for further regulation under this law. For the next five years, little was heard of any action regarding further regulation that Maine as contemplating under the statute. However, on July 2, 2020, the Maine Board of Environmental Protection (BEP) adopted regulations in Chapter 890 designating PFOS and its salts as priority chemicals.  The regulations adopted further require that manufacturers or distributors of children’s products for sale within the state of Maine that contain PFOS or its salts report to the DEP certain product information.

PFOS REGULATION

Maine’s legislation establishes that a wide variety of “childrens’ items” are subject to the PFOS regulations, including:

  1. Child Care Articles – defined as”a children’s product designed or intended by the
    manufacturer to facilitate sleep or the feeding of children or to help children with sucking or
    teething”;
  2. Clothing;
  3. Cookware, tableware, and reusable food and beverage containers, including bottles;
  4. Cosmetics and personal care products;
  5. Craft supplies, including glue, paper, writing utensils, and “color enhancers”;
  6. Electronic devices;
  7. Footwear;
  8. Household furniture and furnishings;
  9. Sleepwear; and
  10. Toys (although PPE “designated to protect the wearer’s body from injury during sports and recreation activities” are excluded).

This is a far-reaching category of products used by or for children. Manufacturers and distributors already selling these products in or to the state of Maine have 180 days to satisfy mandatory reporting about PFOS-containing products listed above. If a manufacturer or distributor who does not already sell the above products in or to the state of Maine later begins to do so, within 30 days of the commencement of the sale, they must comply with the same reporting requirements.  These requirements include:

(1) the name and address of the manufacturer or distributor;

(2) the name, address, and phone number of a contact person for the manufacturer or distributor;

(3) a description of the manufacturer or distributor’s product or products containing PFOS or its
salts, including the overall size of the product and/or the component of the product that
contains PFOS and whether the product or PFOS-containing component of the product can be
placed in the mouth

(3) the amount of PFOS or its salts in each unit of the product reported;

(4) the function of PFOS or its salts in the product reported;

(5) the number of product units sold or distributed in Maine or nationally, in accordance with and;

(6) “any other information the manufacturer or distributor deems relevant to the reporting of the
PFOS or its salts for the Department’s consideration, such as relevant independent scientific
study on exposure specific to the amount of PFOS or its salts present in the finished product
reported or product of similar functionality. Such information may include an assessment that
has already been performed by the manufacturer or distributor of the availability, cost,
feasibility and/or performance, including potential for harm to human health and the
environment, of alternatives to PFOS or its salts and the reason PFOS or its salts are used in
the manufacture or distributor of the reported product in lieu of identified alternatives.”

This type of “self-reporting” by manufacturers and distributors will create substantial burdens on companies that must now not only determine whether their products contain PFOS, and, if so, may require disclosure of additional information that a company may normally consider trade secrets. Companies must prepare themselves immediately for full compliance with Maine’s new PFOS regulations. It is doubtful that any entity has yet considered a preparation plan for reporting to the extent that Maine requires, yet prudent risk management would advise that, at this point, a full compliance audit be performed by any company affected by Maine’s regulations.

CMBG3 Law is following judicial, legislative, and administrative developments relating to PFAS. More information about the services we can provide, including risk assessments, to ensure your business is ready for any intersection with these substances can be found on our PFAS Litigation page.

Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues. For more information, please contact any of our PFAS – Toxic Torts Team: Jessica Deyoe, Suzanne Englot, Alexandra Fraher,or John Gardella.

Authored By:

John Gardella, Esq.

Written by:

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