Overview
And we thought California was a bit nuts. Maine - and Washington State - seem to be in competition for the title. California is just one of several states that are part of the explosion of consumer chemical regulation in the last few years. Maine has been at the top of the list and serves as a cautionary tale of a state enacting a law that sounds simple enough and allows the legislature to claim an environmental and consumer safety win while saddling the enforcement agency with the impossible task of implementation. We see it here in California with several laws, the requirement for electric-only cars by 2035 is just one example.
Maine and the Aggressive PFAS Ban
Maine enacted perhaps the most stringent PFAS law in the country - or beyond. Passed in 2021, the law provides that by 2030 no manufacturer doing business in the state can sell a product containing “intentionally added” PFAS. (Title 38 section 1614) The statute says that “added” means “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 by-products of PFA.” Clear as mud. There is an exception whereby you can sell the product unchanged if it is “specially designated” the Department of Environmental Protection (DEP) for a necessary use and if no alternative exists. The law first requires that by 2025 manufacturers selling these products with the intentionally added chemical(s) report to the agency the products and the chemicals they contain.
The Devil Needs at Least Some Details
A state cannot regulate successfully without a solid regulatory framework. Crazy, right? There is no reporting database in place yet for this law. There is no regulation in place to clarify the upcoming reporting requirements. It should be noted the law included a phased approach requiring reporting on carpets, fabric and rugs starting in 2023, but that date was extended to 2025 as well. DEP says “these requirements will be further clarified as part of the rulemaking.” Well, that is not a ringing endorsement of preparedness for enforcement involving potentially thousands of companies with thousands of chemical compounds.
So, let’s review. In two years you need to report something to a database that is yet to be created for chemicals “added,” a term that has no clear definition, and then stop selling certain products altogether in seven years that contain these added chemicals, even though the global supply chain is still full of kinks and foreign suppliers continue to produce products with the chemicals for which you have no idea whether it is in the product, much less intentionally in the product. Seems simple enough and easy to understand. What could go wrong?
The Obvious Challenges
It comes as no surprise to anyone but Maine’s environmental agency apparently that this law is unrealistic. First, companies’ design and manufacturing processes cannot turn on a dime and it takes years to retool and redesign - if that is even feasible. Second, there exist over 30,000 PFAS chemicals and these are in virtually everything the consumer uses and comes in contact with. Not all PFAS exposure is harmful. In the current climate of panic and knee jerk state legislation around the country that gets lost (and this is for a different post.) Manufactures across the country and world pointed out to DEP in public hearings that there are significant problems with this law. There is also the issue of confidential information that a company is not going to share with a customer and its competitors on a public database doing business in Maine. What about a foreign supplier who supplies components and products and does not know - or will not say - what chemicals are in the products and where they were “added? By you? By the supplier? Does the company now have to test every component it buys? What if the component does not come in contact with a user? These are questions companies are already grappling with in the US and the EU with legislation in this space. Maine is finding out that unrealistic deadlines in a vaguely worded law will not result in meeting the goals the legislature wants met. It does, however, cost money and confusion for the regulated community. One Maine DEP employee noted in a local newspaper interview that what Maine is proposing would require building a “huge database” of reporting companies and products and that he expects the state to receive “a lot of requests for technical assistance.” Let’s call this, charitably, an understatement.
The Tip of the Iceberg
Does Maine want to become a pariah and have business simply stop doing business there? It is a small market and the idea is not inconceivable. California is a regulation lover’s dream but even it has shied away from the harsh approach Maine takes. Maine’s reporting requirement is - as of now - two years a way. This is an example of the failure of legislators, who may mean well, to consider the real-world consequences of these aggressive chemical bans. There are no sage words of wisdom here unfortunately, but obviously state regulatory agencies are having to make sense of overzealous lawmakers in the race to regulate as much as possible in this area. Until this fever breaks Maine is an example of what we are going to be seeing over and over and over.
