We reported previously on Maine’s 2021 law barring the sale of new products containing intentionally added PFAS and the reporting requirements that the law imposed upon manufacturers. Under the law, both the first phase of the sales ban and the reporting requirements were scheduled to take effect on January 1, 2023. However, pursuant to a new law enacted on June 8, 2023, the reporting requirements will not go into effect until January 1, 2025, which will delay until the same date implementation of the sales ban on products with intentionally-added PFAS other than carpets, rugs, and fabric treatments. (The sales ban on the latter three product categories went into effect as scheduled on January 1, 2023.) The Maine Department of Environmental Protection (MDEP) had granted hundreds of extensions to the regulated sector to comply with the reporting requirements under the 2021 law, which arguably would have undermined the statutory purpose.
Ultimately, the pause created by the newly enacted statute will allow MDEP to clarify some of the complexities of the original statutory language through regulations, and for some of the more potentially burdensome reporting requirements to be tempered. For example, under the new law, rather than having to report the amount of each PFAS substance in the product, covered manufacturers may comply by reporting the amount of total fluorine in the product if the amount of each PFAS compound is not known. This change will likely save manufacturers time and expense that they otherwise would have incurred from a more particularized chemical analysis of product samples, even though using total fluorine as a proxy for PFAS may wind up leading to reporting of slightly overstated numbers as compared to speciated PFAS amounts. This amendment may allow more manufacturers to comply with the reporting requirements, and thereby avoid the original statute’s ban on sales of any PFAS-containing product in Maine for which the manufacturer fails to report.
In addition, the applicability of the reporting requirements has been limited to manufacturers that employ more than 25 people. Further, for the product categories that are subject to the reporting requirements, the exemptions from the sales ban have been expanded to add exemptions for products for which MDEP has waived the reporting requirement, and for the duration of any extension for compliance thereafter granted to any covered manufacturer by MDEP.
We’ll continue to follow implementation of the Maine statute as well as the growing number of similar laws being enacted and implemented in other states.