Maine Proposed Rule on PFAS Notification and Prohibition Is Open for Comment

On 15 February 2023 the Maine Department of Environmental Protection (DEP) released a draft regulation outlining the notification requirements and sales prohibitions for products containing intentionally added per- and polyfluoroalkyl substances (PFAS) under Maine’s Act to Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution. Maine was the first U.S. state to ban the sale of all products containing intentionally added PFAS and require notification of products containing intentionally added PFAS.

A public hearing on the draft will be held on 20 April 2023 and the deadline for comment is 19 May 2023.

3E Review 

On 1 January 2023 the product prohibitions and notification requirements of the act came into force. The implementing regulations provide further detail about how to comply with the law.

Proposed Product Notification Requirements

Beginning 1 January 2023, manufacturers of consumer, commercial, and industrial products sold in Maine containing intentionally added PFAS must submit a product notification and pay product notification fees to the Maine DEP. Reports must be filed directly with the department using the online reporting tool when it becomes available. “PFAS” means substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom. The act requires notification of PFAS by CAS RN, therefore chemicals that do not have CAS RNs assigned are not subject to this notification. Products containing PFAS that have CAS RNs withheld by a supplier are not exempt from notification. Domestic manufacturers or persons whose brand name is legally affixed to the product, importers or the domestic distributor of the product, whichever is first to sell, offer for sale, or distribute the product (including through online sales platforms) into Maine are responsible for the notification. The following must be provided with the notification:

• Product description (GPC Brick, HTS, Stock No., or product code)
• Type of product and use
• Purpose of PFAS in the product
• Name, CAS RN, concentration, or exact amount of PFAS (concentration or amount must be determined by commercially available analytical methods)
• Name and address of company and name, address, phone, and email of company official
• Notification fee of $250 for the first three notifications and $50 for each additional notification (no fees required for updated notifications)
• Confidentiality claim if applicable

Electronic reports using the online reporting tool are due 90 days after the final rule effective date, or prior to sale of a new product, and after a significant product change (change in PFAS chemical or amount or change in contact information). Decreases in PFAS content or discontinued sales may be voluntarily reported.

The following exemptions or partial exemptions may apply:

• Waivers may be granted if the required data is already publicly available.
• Complex products that contain a component containing PFAS must notify but may refer to the notification of the component.
• Used products are exempt from notification.
• Products that are regulated and preempted by federal law (none currently identified).
• Products that are subject to Title 32, § 26-A, Reduction of Toxics in Packaging.
• Products that are subject to Title 32, § 26-B, Toxic Chemicals in Food Packaging.

Product Prohibtions

Effective 1 January 2023 carpets, rugs, and fabric treatments containing intentionally added PFAS may not be sold in Maine. Effective 1 January 2030 all products containing intentionally added PFAS are prohibited. Used products that are resold are not subject to the bans. The department may grant exemptions for products if it has determined that the use of PFAS in the product is a currently unavoidable use.

3E Analysis

All companies selling products in Maine must determine if their products contain PFAS and, if so, must test products to determine the concentration or quantity of PFAS, complete product notification, and plan to obtain an essential use waiver, reformulate, or discontinue sales of products by the phaseout deadlines. Additional information can be found on the Maine PFAS in Products webpage. Comments on the proposed rule are due by 19 May 2023 by email or regular mail to:

Mark Margerum
17 State House Station
Augusta, ME 04333-0017
Telephone: 207-287-7842

An in person hearing is scheduled for 20 April 2023.