More and more states are passing statutes to restrict and/or monitor sales of products containing PFAS. Recent news out of Maine suggests some practical downsides to a more aggressive legislative scheme; last month California took a more measured approach.
In July 2021, Maine enacted a law that will bar the sale in Maine of new products containing “intentionally added” PFAS, on a phased schedule that begins January 1, 2023 (for carpets, rugs and fabric treatments that contain intentionally added PFAS). The law also requires manufacturers of products containing intentionally added PFAS to report the presence of PFAS in those products to Maine’s Department of Environmental Protection (MDEP) beginning January 1, 2023. The phased schedule set forth in the Maine statute culminates in a near total ban on the sale of any products containing intentionally added PFAS effective January 1, 2030, unless the use of PFAS in the product is recognized and specifically designated by MDEP as “a currently unavoidable use” – that is, a use determined by MDEP (through a subsequent regulatory process) to be “essential for health, safety or the functioning of society and for which alternatives are not reasonably available.” 38 M.R.S.A. § 1614.1.B. The scheme provides MDEP the flexibility, at any time before the total ban takes effect on January 1, 2030, to bar the sale of other specific categories of new products besides carpets, rugs, and fabric treatments by promulgating additional regulations. Notably, the ban’s scope excludes the sale or resale of used products (including used carpets, rugs, and fabric treatments) that contain intentionally added PFAS.
MDEP has proposed regulations, currently pending, to clarify the upcoming reporting requirements, and has also sought public comment on implementation of the program. Perhaps not surprisingly, media reports indicate that stakeholders are wary of the difficulties presented by the upcoming reporting requirements, and some are now calling for a delay in implementation. MDEP’s request for stakeholder input leaves open an interpretation that it might not be averse to such a delay.
Meanwhile, in California, two laws were enacted that would restrict the manufacture, distribution or sale within the state of any new apparel or textile articles (AB1817) or cosmetics (AB2771) that contain intentionally added PFAS, effective January 1, 2025 (except for “outdoor apparel for severe wet conditions,” which is excluded from the textile ban until January 1, 2028, and personal protective equipment, which is exempt from the textile ban). Under the textile law, the scope of the ban extends to products containing “regulated PFAS,” defined as intentionally added PFAS and its degradation byproducts, or the presence of any PFAS at concentrations above a set threshold, measured as total organic fluorine. (The threshold is 100 ppt starting January 1, 2025, but decreases to 50 ppt starting January 1, 2027.) In addition, under the textile law, manufacturers must also certify to their distributors and sellers in California that textile articles are compliant with the law and do not contain any regulated PFAS.
However, a bill proposing a far-reaching reporting regime for PFAS-containing products, similar to Maine’s reporting requirements, was vetoed by Governor Gavin Newsom. In his veto statement, Governor Newsom cited the possibility of a forthcoming EPA reporting requirement and high costs of implementation. As more states confront the question of whether and how to limit PFAS-containing products through legislation, it would not be surprising to see them adopt the more targeted California approach – at least while EPA continues to consider nationwide reporting requirements. Stay tuned for more on this issue as the Maine stakeholder input process plays out.