Updating our earlier post from March 2025, Maine has completed a regulatory process and has adopted updates to its PFAS in products rules to identify two approved Currently Unavoidable Use (CUU) exemptions from the state’s phased ban on in-state sales of products with intentionally added PFAS.  The first phase of the ban, which is effective January 1, 2026, includes the following product categories defined in the rules:  cleaning products; cookware; cosmetic products; dental floss; juvenile products; certain textile articles; ski wax; upholstered furniture; and fluorinated containers, or containers that otherwise contain intentionally added PFAS, from any of the aforementioned categories of products.

The Maine Department of Environmental Protection (MDEP) approved just two CUU exemptions out of eleven timely submitted requests for determination under the first phase of the ban.  The approved CUU exemptions are in place until January 1, 2031 and are as follows:

  1. The use of PFAS in a cleaning product container internal cartridge valve within the HTS classification 3926.90.4510, which are used in the industrial sector with the NAICS codes 561210 and 561720. 
  2. The use of PFAS in a cleaning product container vented cap liner within the HTS classifications 3921.19.0000, 7607.20.5000, and 3923.50.0000, which are used in the industrial sector with the NAICS code 322299.

The following nine CUU applications were rejected by MDEP as not meeting the regulatory criteria for CUUs:

  • Three proposals concerning PTFE coatings that come into contact with food on cookware surfaces
  • A proposal concerning fluoropolymer-coated small kitchen appliances (treated as cookware)
  • A proposal concerning PFAS added to component parts of coffee makers, such as tubing, gaskets, solenoid valves, and pumps (treated as cookware)
  • Two proposals concerning PFAS used in internal components of electric air fresheners/fragrance warmers (cleaning products)
  • A proposal concerning an O-ring made with PFAS compounds in a container used for hand lotion (cosmetic products)
  • A proposal concerning PFAS compounds in internal mechanical component parts of a massage chair (upholstered furniture)

The two approved CUU determinations reflect highly specific use cases that involve PFAS embodied within parts of cleaning product containers, rather than in the respective cleaning products themselves. In both approved CUUs, MDEP found that the PFAS-containing parts played an important role in the safe usage of the container for consumers, and credited the submitters’ contentions that alternatives were inadequate.  For each of the nine rejected applications, MDEP concluded that reasonably available alternatives to PFAS that function similarly were readily obtainable, even if – in the case of the coffee maker components and the hand lotion container O-ring – those alternatives were alleged by the petitioner to not be as effective. 

To the extent that MDEP’s approach to these initial eleven requests for CUU determinations presages future determinations, MDEP appears to be taking a very narrow view of what uses are currently avoidable, and a critical view of arguments that a less-effective (or even arguably ineffective) PFAS-free alternative renders the PFAS-containing use unavoidable.

MDEP’s Fact Sheet for the amended rule notes that among relevant information that MDEP considered during development of the rule, MDEP held discussions with the Minnesota Pollution Control Agency, which is implementing legislation similar to Maine’s statute.  It will be interesting to see if Maine’s approach will find echoes in the way Minnesota approaches its own future CUU determinations.