PFAS in Products

October 27, 2022 Stakeholder Engagement Meeting on PFAS in Products recording

In July 2021, Public Law c. 477, An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution (LD 1503, 130th Legislature) was enacted by the Maine Legislature. This new law requires manufacturers of products with intentionally added PFAS to report the intentionally added presence of PFAS in those products to the Department beginning January 1, 2023. The law also prohibits the sale of carpets or rugs, as well as the sale of fabric treatments, that contain intentionally added PFAS beginning on January 1, 2023. Effective January 1, 2030, any product containing intentionally added PFAS may not be sold in Maine unless the use of PFAS in the product is specifically designated as a currently unavoidable use by the Department.

A manufacturer may submit a request to the Department for an extension of the reporting deadline. A manufacturer may request an extension if they do not know if their products or their components contain PFAS and/or if they cannot provide sufficient information to meet the reporting requirements in Maine law by the reporting deadline. The Department has granted extensions to manufacturers listed here.

To implement the product notification requirements the Department is working with the Interstate Chemicals Clearinghouse to develop an online reporting database similar to those already in use by other states. The Department is also in the process of developing a rule to clarify the upcoming reporting requirements. During the rule development process there will be an opportunity for stakeholder input on the implementation of the program. If you are interested, please sign up to receive notification of Department rulemaking and opportunity to comment notices on our website.

Find more information on PFAS in Maine

The FAQs below are meant to address common questions regarding Maine’s law addressing products containing intentionally added PFAS. (38 M.R.S. §1614) Please note, the answers below are subject to change in response to feedback and changes in regulation.

For questions or comments on the PFAS in Products program, you can contact the Department directly by e-mail at: PFASProducts@Maine.gov


Frequently Asked Questions

Click on the topics below to expand each section.

What products must be reported?
Any product sold, offered for sale, or distributed for sale in Maine which contains intentionally added PFAS must be reported to the Department.

38 M.R.S. §1614 (1)(G) defines a product as “an item manufactured, assembled, packaged or otherwise prepared for sale to consumers, including its product components, sold or distributed for personal, residential, commercial or industrial use, including for use in making other products.” The statute defines “product component” as “an identifiable component of a product, regardless of whether the manufacturer of the product is the manufacturer of the component.”

A product can include components, such as packaging. All products and product components sold into Maine for personal, residential, commercial, or industrial use are subject to this program. If a product is offered for sale in Maine for one of those purposes, the manufacturer of the product must report the amount of PFAS in their product.
Who must report PFAS content in a product to the DEP?
The Manufacturer of a product sold, offered for sale, or distributed for sale in the State of Maine that contains intentionally added PFAS is required to report to the Department.
Who is a Manufacturer?
The statute defines manufacturer as “the person that manufactures a product or whose brand name is affixed to the product.” In the case of a product that is imported into the United States where the person that manufactured or assembled the product or whose brand name is affixed to the product does not have a presence in the United States, “manufacturer” includes either the importer or the first domestic distributor of the product, whichever is first to sell, offer for sale, or distribute for sale the product in Maine.

A manufacturer may not directly nor knowingly add PFAS to their product if their product includes components containing intentionally added PFAS. A person may meet the definition of a manufacturer at 38 M.R.S. 1614 (1)(E), even though they did not intentionally add PFAS to the components in their product that they sell in Maine.

If a product is imported directly into Maine from outside the United States to be sold, offered for sale, or distributed for sale outside of the sales and distribution channels controlled by the international seller, and that organization has not submitted notification of the product to the Department, it is the responsibility of the person importing the product into the State of Maine to submit notification of the product to the Department.
What products containing intentionally added PFAS will be prohibited from being sold in Maine?
Beginning January 1, 2023, fabric treatments for application by the consumer and carpets or rugs intended for commercial, industrial, or residential buildings containing intentionally added PFAS will be prohibited from being sold to consumers in the State of Maine. Simultaneously, a person may not sell, offer for sale, or distribute for sale in the State of Maine a product containing intentionally added PFAS if the manufacturer has failed to report to the Department.

Beginning January 1, 2030, all products containing intentionally added PFAS will be prohibited from sale in the State of Maine, unless the Department has exempted certain products after determining that the use of PFAS in those products is a currently unavoidable use (as determined by Department rule).

The Department may prohibit the sale of products containing intentionally added PFAS prior to 2030 only by major substantive rulemaking.

The Department may determine by major substantive rulemaking that a product or product category containing intentionally added PFAS or a use of PFAS is an unavoidable use and allow sales of such products to continue despite otherwise being prohibited. (38 M.R.S. §1614(5)(C&D))
What chemicals are considered PFAS under this program and require notification to the Department?
Under the statute PFAS are broadly defined as substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom. The department interprets fully fluorinated to mean a carbon atom on which all the hydrogen substituents have been replaced by fluorine. Any intentionally added chemical meeting this definition will trigger the notification requirement. Individual PFAS must be identified by their Chemical Abstract Service Registry Number.
Will the Department publish a list of chemicals that meet the definition of PFAS?
The statute requires any chemical containing at least one fully fluorinated carbon atom, which is a carbon atom on which all the hydrogen substituents have been replaced by fluorine, that is intentionally added to a product be reported to the Department regardless of whether it is found on any list.

The U.S. EPA maintains a webpage of chemicals considered PFASwhich, while not exhaustive, provides some clarity on what compounds are considered within the definition of PFAS.

The statute requires manufacturers to report the amount of intentionally added PFAS in their products by CAS number. Therefore, the Department interprets that PFAS subject to the reporting requirement of the law are limited to those that have a CAS number.
Are products that are sold for industrial or commercial use treated differently than those meant for personal or residential use?
No, under the law all products, regardless of whether they are sold for personal, residential, commercial, or industrial use are treated the same.

The law also requires reporting for components of the final product and products that are sold to be incorporated into another product. (38 M.R.S. §1614(1)(G))

When must manufacturers notify the Department of products that contain intentionally added PFAS?
All products containing intentionally added PFAS which are sold in Maine must be registered beginning January 1, 2023, prior to sale or distribution in the State, or amended when there is a substantial change. (38 M.R.S. §1614(2)) Substantial change will be clarified as part of the rulemaking process.

This is a one-time report submitted to the Department for each product subject to the law.

Maine law at 38 M.R.S. §1614(3) authorizes the Department to extend the deadline for submission by a manufacturer if the Department determines that more time is needed by the manufacturer to comply with the notification requirement.

The Department’s authority to extend the deadline for the submission of product information is specific to individual manufacturers. Entities may submit extension requests on behalf of multiple manufacturers, but each individual manufacturer intended to be included in the extension must be individually identified within the request.
How will the DEP implement the notification requirements found in 38 M.R.S. §1614(2)?
The Department is currently working with the Interstate Chemical Clearinghouse (IC2) to develop an online reporting system for all products subject to 38 M.R.S. §1614. The system in development will allow reporting by Global Product Classification brick category and code, and Chemical Abstracts Service Registry Number.

The database will be available to the affected manufacturers by the effective date of the Department’s finally adopted rule. Because development is currently underway, we are not able to provide a specific date when the notification system will be available to the regulated community. Please check the program webpage for updates on this development process.

If the database is not available by January 1, 2023, the reporting obligation for regulated manufacturers still exists, unless you have been granted an extension. Preliminary reports may be submitted to the Department electronically by email to PFASproducts@maine.gov.
What information will be required as part of the submission to the Department?
Beginning Jan 1, 2023, the Department must be notified of any product containing intentionally added PFAS that is sold in Maine 38 M.R.S. §1614(2) Those reports require, at a minimum, the following:
  • A brief description of the product;
  • The purpose for which PFAS are used in the product, including in any product components;
  • The amount of each of the PFAS, identified by its chemical abstracts service registry number, in the product, reported as an exact quantity determined using commercially available analytical methods or as falling within a range approved for reporting purposes by the department;
  • The name and address of the manufacturer, and the name, address and phone number of a contact person for the manufacturer; and
  • Any additional information established by the department by rule as necessary to implement the requirements of this section.
These requirements will be further clarified as part of the rulemaking.
Are there circumstances where the Department would require less information be provided as part of the notification?
The Department may waive certain notification requirements if it finds that the information to be waived is already publicly available. (38 M.R.S. §1614(3))
Which products are exempted from the program?
38 M.R.S. §1614(4) exempts two categories of products from this program: 1) PFAS content in product reporting preempted by a federal program; and 2) products subject to Title 32 chapters 26-A and 26-B of the Maine Revised Statutes.

Federal preemption is either found in the text of a federal law or federal regulation. The Department is not aware of any federal law or regulation that would preempt any product from Maine’s PFAS reporting requirements in 38 M.R.S. §1614.

Food packaging containing PFAS is subject to Maine Revised Statutes Title 32, chapter 26-A. when the Department prohibits its sale by rule (32 M.R.S. §1733(3-B)).

For a product to be subject to Title 32 chapter 26-B it must contain a chemical which the Commissioner of the DEP has designated a priority food contact chemical (38 M.R.S. §1743). A product which is not affected by either Department action is subject to this program.
My product has already been registered with another state as having intentionally added PFAS, do I still need to provide notification to the State of Maine?
Unless the Department has entered into an agreement with another State to use a shared notification system, all manufacturers must submit notification to the Department of their products containing intentionally added PFAS. To date the Department has not entered into any such agreements. (38 M.R.S. §1614(3))
What is considered a “commercially available analytical method”?
In the context of PFAS, the Department understands “commercially available analytical method” to mean any test methodology used by a laboratory that performs analyses or tests for third parties in order to determine the concentration of PFAS present. The Department may accept commercially available analytical methods that were performed by an in-house laboratory so long as no alterations were made to the methodology. However, a method that was developed at an in-house laboratory and is not offered by a laboratory providing services to third parties will not be accepted.

Commercially available analytical methods include methods approved by the U.S. Environmental Protection Agency (EPA), when used in accordance with that approval.
Will the Department provide a list of “commercially available analytical method(s)”?
As commercially available analytic methods can be frequently developed or modified faster than rulemaking can be undertaken the Department does not intend to provide a list of commercially available analytic methods or laboratories offering those methods in rule.
Will an estimate of PFAS based on production quantity be sufficient?
38 M.R.S. §1614(2)(A)(3) requires that concentrations be “reported as an exact quantity … or as falling within a range approved for reporting purposes by the department”. The manufacturer will need to know with a high degree of certainty and confidence what the actual concentration is in any given product.
Will the Department allow for concentration to be reported as being within a range?
The Department intends to collect information from stakeholders to determine which ranges are meaningful.
Can you explain the approval process and what types of products may be allowed to file notification as a “category or type of product rather than for each individual product.” under 38 M.R.S. §1614(2)(B).
The Department has not yet determined the criteria for such a determination. The notification system for intentionally added PFAS is intended to serve two purposes. First to allow for easy identification by all parties, including consumers, of which products contain PFAS and if so, how much. The second is to aid in tracing the sources of environmental contamination with PFAS. As the understanding of how PFAS behave in the environment grows the Department may determine there are instances where a single notification for a category or type of product by a manufacturer does not conflict with these purposes, in such a case the Department may allow a single notification.
Do you have any other guidance or expect to release guidance for brands in the coming months?
The new statute found at 38 M.R.S. §1614 contains details the reporting entities will find helpful to understanding how this program will be implemented. For those areas requiring clarification, the Department will be undertaking routine technical rulemaking in the coming months and encourages stakeholder involvement.

The best way to stay up to date on Department rulemaking activity is to sign up to receive notification of rulemaking and public comment opportunities for all Department rulemaking proceedings. The Department maintains a webpage for all other PFAS related materials and guidance beyond this regulation.
When will a fee schedule for filing a notification with the Department be available?
To cover the administrative costs incurred by the Department to administer the program, a manufacturer will be required to pay a fee for the first three notifications and an additional for each additional notification. A fee is only required for new product notifications. No fee is required for product updates or changes to inactive status.

For notifications submitted to the Department prior to the effect of this rule and/or the availability of the digital reporting system the fee must be paid within 90 of days of the effective date of this rule. Fees will be considered paid when funds are transferred to the Treasurer.
What are the requirements for retailers and store operators for categories of products that have been prohibited from being sold in Maine?
A retailer may not sell products containing intentionally added PFAS if the product has been prohibited from sale in Maine. Starting January 1, 2023 these include fabric treatments and carpet and rugs.

After January 1, 2030 a retailer may not sell any products containing intentionally added PFAS. With the exception of products the Department has determined, by rule, are exempt from this prohibition because the use of PFAS is currently unavoidable in that product.
If a product containing PFAS is made outside of the United States who does the Department consider the manufacturer?
Regardless of where the product was produced the company who manufactured or whose names or brand appears on the product is considered the manufacturer. In cases where that company does not have a presence in the United States then either the importer or first domestic distributor of the product will be considered the manufacturer. ((38 M.R.S. §1614(1)(E))
If a company customizes an existing product, such as by adding their company logo, who is considered the manufacturer?
So long as the customization of the product does not introduce additional PFAS or products components containing intentionally added PFAS to the product and the original manufacturer’s name or brand remains on the product, the original manufacturer will continue to be considered the manufacturer. However, if the underlaying product is not covered by a notification previously submitted to the Department or if the customization process introduces, or adds additional, PFAS or products containing intentionally added PFAS, then notification must be submitted to the Department.
How are refrigerants used in HVAC applications handled under this program?
The Department is aware that many existing refrigerants either meet or contain a chemical that meets the definition of a PFAS under this program and that future refrigerants may similarly meet the definition.

Currently, under the statute refrigerants would not be subject to a sales prohibition until January 1, 2030. Closer to 2030 the Department may undertake an investigation to determine if refrigerants are, at that time, a currently unavoidable use. Please see the FAQ regarding currently unavoidable uses for more information.

Beginning January 1, 2023 all products, including refrigerants, containing intentionally added PFAS must be reported to the Department via the notification system. Given that refrigerants often have very specific formulations published by organizations such as ASHRAE it may be appropriate for the Department to waive some or all notification requirements. Please see the “Are there circumstances where the Department would require less information be provided as part of the notification?” FAQ for additional information.
In what time frame must the Department receive notification?
For a new product, notification must be submitted prior to when the product is first offered for sale in Maine. For existing products currently offered for sale in Maine, unless an extension has been granted, the Department must receive notification on or before January 1, 2023.
Is notification required for products containing intentionally added PFAS that may be classified as a currently unavoidable use?
Yes, as of January 1, 2023 the Department must receive notice of all products that contain intentionally added PFAS or its degradation products.
Is notification required if PFAS is used in the manufacturing process, but it is not present in the final product?
No, providing notice to the Department is only required if either PFAS or its degradation products have been intentionally added to the product to impart a specific characteristic or function and are present in the product offered for sale.
Do Product Component Manufacturers whose components contain intentionally added PFAS have to submit a notice to the Department?
If a Product Component is sold into the State of Maine prior to being incorporated into a Product, which is subject to the notification requirement, then the Manufacturer of the Product Component must notify the Department. Product Components that are covered by the notice of the final Product do not need to submit a notification.
What is the threshold concentration that triggers the notification requirement?
If PFAS is intentionally added to a Product during the manufacturing process and it is detectable when analyzing the Product using a Commercially Available Analytic Method (above the PQL) then a notification must be submitted to the Department prior to offering the product for sale in Maine beginning January 1, 2023.

 

Updated October 28, 2022