The Maine Department of Environmental Protection (DEP) has proposed a rule designating perfluorooctane sulfonic acid (PFOS) as a priority chemical under the state’s Toxic Chemicals in Children’s Products Law. DEP’s proposal would trigger reporting obligations for manufacturers of certain products that contain PFOS. The following product categories would be in scope, to the extent they are sold for residential use, or in a childcare facility, or school, and if a child under 12 years of age may have direct contact with them:

• Childcare articles
• Clothing
• Footwear
• Sleepwear
• Toys
• Cosmetics and personal care products
• Craft supplies
• Electronic devices
• Household furniture and furnishings
• Cookware, tableware, and reusable food and beverage containers

Public comments are due to DEP by November 4, 2019.

Background

Maine’s Toxic Chemicals in Children’s Products Law identifies and prioritizes chemicals subject to notification requirements. Under the Law, DEP is also authorized to impose use restrictions.

The Law establishes a tiered prioritization scheme for chemicals:

• Chemicals of concern – Maine has identified over 1,300 chemicals as chemicals of concern.
• Chemicals of high concern – From the list of chemicals of Concern, DEP, in coordination with the Maine Department of Health and Human Services and the Main Center for Disease Control and Prevention, has designated 36 compounds as chemicals of high concern.
• Priority chemicals – DEP designates certain chemicals of high concern as priority chemicals.

PFOS is already designated as a chemical of high concern, and the proposal would elevate it to a priority chemical.

Covered Product Categories

Manufacturers or distributors of products falling into the categories listed below and containing intentionally added amounts of PFOS would be required to report to DEP, as described further below. Only products sold for residential use, or in a childcare facility or school, and with which a child under 12 years of age may have direct contact, are in the scope of the law.

• Childcare articles
• Clothing
• Footwear
• Sleepwear
• Toys
• Cosmetics and personal care products
• Craft supplies
• Electronic devices
• Household furniture and furnishings
• Cookware, tableware, and reusable food and beverage containers

There would, however, be exemptions for:

• Used products
• Food and beverage packaging (unless the packaged product is intentionally marketed for use by children under 3 years of age)
• Certain motor vehicles or watercraft (except that detachable car seats are not exempt)

Reporting Obligations

A manufacturer or distributor of a covered product with intentionally-added PFOS above the practical quantification limit would be required to provide a one-time notification to DEP and must pay an associated reporting fee to be determined by DEP. These notifications would be due 180 days after the effective date of the regulations or within 30 days of the sale of a product within Maine (if the product were not sold until after the 180-day reporting period ends). 

The regulations would require the report to include the following information:

• Certain identifying and contact information about the manufacturer or distributor.
• A description of the product(s) containing PFOS, including the size of the product or component containing PFOS and whether the product or PFOS-containing component can be placed in the mouth. (Note: If the reportable item is smaller than 5 centimeters in one dimension, it is considered to be mouthable.)
• The amount of PFOS in each unit of the product.
• The function of PFOS in the product.
• The number of product units sold or distributed in Maine or nationally.
• Any other information the manufacturer or distributor deems relevant to the reporting for DEP’s consideration, such as relevant independent scientific study on exposure, information on the availability, cost, feasibility and/or performance of alternatives to PFOS, and the reason PFOS is used in lieu of identified alternatives.

Additionally, DEP can impose use restrictions for certain priority chemicals when used in children’s products sold in Maine but has not proposed to do so for PFOS.

Opportunity for Comment

DEP will accept comments on the proposed rule until 5:00 PM ET on November 4, 2019. DEP will hold a public hearing if it receives five or more requests for a public hearing before the end of the comment period.

Beveridge & Diamond's Consumer Products industry group works with U.S. and multinational companies that make, distribute, transport, or sell consumer products in a hyper-competitive and evolving consumer goods market. We help them identify, understand, and comply with complex regulatory requirements throughout the product lifecycle. For more information, please contact the authors.