In 2021, we detailed one of the most far-reaching PFAS bans in the country when we reported on Maine’s new law that would take a phased approach to banning the sale of products in the state that contain intentionally added PFAS. For certain industries, the ban took effect on January 1, 2023. However, it is important for all industries that sell products to Maine to note that even companies not yet subject to the ban may nevertheless be required to comply with Maine’s PFAS reporting requirements, which also went into effect on January 1, 2023. It is the reporting requirements that concern many companies, not only from a compliance standpoint, but also due to the concern that the information provided may in the future be used by plaintiffs’ attorneys in products liability lawsuits.

Maine’s PFAS Products Bills – What Does It Aim To Do?

Several states have already taken steps to ban PFAS use in certain specific products, including firefighting foam, food packaging, and ski wax, to name a few. The Maine PFAS products bill (LD 1503), however, goes well beyond carving out PFAS bans for individual products. Instead, the bill bans PFAS from all products of any kind. The far-reaching approach makes Maine the first state in the United States to take this type of all-encompassing approach to regulating PFAS.

The PFAS ban is segmented into various deadlines in order to give industries time to adapt. Carpets, rugs and fabric treatments will have PFAS phased out first, with a January 1, 2023 deadline for phase out. From there, Maine’s legislation requires manufacturers that use PFAS in products to file certain information with the state by January 1, 2023, so that the state can determine the products that will be phased out next. Maine intends for the entire process and phase outs to be complete by 2030.

More specifically, Maine’s PFAS products bill requires companies to provide it with the following information:

1. A description of the product;
2. The purpose for PFAS use in the product;
3. The amount of each type of PFAS used in the product; and
4. Contact information for the manufacturer.

The law enables the Maine DEP to levy fines, grant extensions, give permission to report on a product category instead of individual products and collaborate with other jurisdictions to obtain disclosures. The department may also waive all or part of the notification mandate if it finds the same information is already openly available.

Thus far, there have been several public comment periods and hearings on the logistics and further refinement of the language of the definitions within the regulation. Despite the state’s promise to have an online portal operational by January 1, 2023 through which companies could upload the required information, Maine now reports that the portal will not be operational until Q2 2023. Nevertheless, companies must still comply with the reporting requirements. The state has thus far refused to grant exemptions to industry types or to stay the deadlines, instead stating that it may grant exemptions or extensions of time to begin complying on a case-by-case basis.

Issues That Could Arise

As with many state bills that have passed seeking to ban PFAS from various products, Maine’s bill uses language that bans “intentionally added PFAS” from products. But what is an “intentionally added” PFAS?  In some instances, this may be obvious. The original Maine PFAS product bill includes a brief definition of the term: “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. ‘Intentionally added PFAS’ also includes any degradation byproducts of PFAS.” Many products, though, do not have “intentionally added” PFAS, so would seemingly not fall within the ban imposed by Maine. For example, a toy manufacturer who purchases a PFAS-containing paint product from another company to coat the toys. The PFAS used by the toy manufacturer was not “intentionally added.” It may have been by the paint manufacturer, but will the state be able to enforce the ban against the toy manufacturer if the company did not utilize the PFAS for one of the reasons in Maine’s definition of “intentionally added”? Hundreds, if not thousands, of examples like this abound in commerce, and there is not yet a clear answer on this. In the short term, this many lead to company uncertainty and confusion over compliance.

In addition, Maine provides a carve out for PFAS uses in products that the state deems that the PFAS use is “unavoidable.” This term is not defined in the statute and it is left to the state to make case-by-case determinations as to what are avoidable versus unavoidable uses. This will again create uncertainty among companies, and could in fact lead to varying results among very similar products – a result that could lead to legal challenges.

Implications To Businesses From The Maine PFAS Legislation

First and foremost of concern to companies is the compliance aspect of the Maine law. The state continues to modify and refine key definitions of the regulation, resulting in companies needing to consider the wording implications on their reporting requirements. In addition, some companies find themselves encountering supply chain disclosure issues that will impact reporting to the state of Maine, which raises the concern of accuracy of reporting by companies. Companies and industries are also very concerned that the information that is being gathered will provide a legacy repository of valuable information for plaintiffs’ attorneys who file future products liability lawsuits for personal injury, not only in the state of Maine, but in any state in which the same products were sold.

It is of the utmost importance for businesses along the whole supply chain to evaluate their PFAS risk. Public health and environmental groups urge legislators to regulate these compounds. One major point of contention among members of various industries is whether to regulate PFAS as a class or as individual compounds.  While each PFAS compound has a unique chemical makeup and impacts the environment and the human body in different ways, some groups argue PFAS should be regulated together as a class because they interact with each other in the body, thereby resulting in a collective impact. Other groups argue that the individual compounds are too diverse and that regulating them as a class would be over restrictive for some chemicals and not restrictive enough for others.

Companies should remain informed so they do not get caught off guard. Regulators at both the state and federal level are setting drinking water standards and notice requirements of varying stringency, and states are increasingly passing PFAS product bills that differ in scope. For any manufacturers, especially those who sell goods interstate, it is important to understand how those various standards will impact them, whether PFAS is regulated as individual compounds or as a class. Conducting regular self-audits for possible exposure to PFAS risk and potential regulatory violations can result in long term savings for companies and should be commonplace in their own risk assessment.

CMBG3 Law is following judicial, legislative, administrative, and scientific developments relating to PFAS. We represent companies for PFAS issues in class action lawsuits, state and federal enforcement actions, compliance work, and risk management efforts. 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 the Chair of our PFAS – Toxic Torts Team, John Gardella.