Maine Enacts Law That Will Ban Use of ‘Forever Chemicals’ in All Products by 2030

August 20, 2021 by

Maine last month enacted a law that makes it the first U.S. state to ban the use of PFAS, or per- and polyfluoroalkyl substances, in nearly all products. PFAS are commonly referred to as “forever chemicals” because of their inability to fully break down.

The law, “An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution,” was sponsored by Representative Lori Gramlich and became effective July 15 as an emergency measure not requiring the governor’s signature upon approval. The measure passed with 121 Maine House lawmakers voting in favor and two voting against the measure. An additional 28 House lawmakers were absent from the vote.

The legislation will ban the use of PFAS compounds in all products by 2030, except in specific cases where their use is considered unavoidable. These instances include in certain products that have been deemed essential for health, safety or the functioning of society and for which alternatives are not reasonably available.

The law says the full extent of PFAS contamination in Maine is not currently known but is anticipated to be widespread and will require significant resources to identify and remediate.

“PFAS is at a crisis level here in Maine— it’s in the soil, groundwater and household items, and it is making people severely sick,” Gramlich said in a statement. “We have a moral obligation to not only be good stewards of our environment, but we also must ensure that we are protecting public health.”

The Guardian reported last month that PFAS include a range of about 9,000 chemical compounds that are typically used to make products water and stain resistant. They’re used in food packaging, cosmetics, cookware, dental floss and a variety of other products.

Beginning January 1, 2023, a manufacturer of a product for sale in Maine that contains intentionally added PFAS is required under the law to submit written notification to state authorities including a description of the product and the purpose for which PFAS are used in the product.

“Phasing out these chemicals and requiring companies to disclose their use will force companies to address their exposure and find non-PFAS substitutes in their products,” said Daniel Drennen, environmental, energy and construction broker and national environmental practice leader at Amwins, adding that he believes the passage of this bill has established Maine as a climate leader.

The law has been met with praise among environmental advocates that have been pushing for the ban of PFAS in products nationwide.

“I am proud to see Maine taking action that will change the conversation on how PFAS are regulated, not only addressing the entire class, but creating the requirement to avoid these persistent and toxic chemicals wherever possible,” said Patrick MacRoy, deputy director of public health organization Defend Our Health, in a public statement.

Linda S. Birnbaum, former director of the National Institute of Environmental Health Sciences and the National Toxicology Program, said in a public statement that she hopes Maine’s efforts will serve as a model for other policymakers.

“The more we study PFAS, the more we learn of their harm to human health,” she said. “Maine should be congratulated for taking proactive action to work towards eliminating unnecessary uses of PFAS in all products.”

However, others have expressed concern about the legislation.

“Unfortunately, as written, this misguided law will eventually ban thousands of products that Maine families and businesses rely on without providing meaningful impact on public health,” The American Chemistry Council said in a public statement regarding the bill’s enactment. “It is our sincere hope that the legislature will realize the unintended consequences of this new law and work to fix the problems in the next legislative session.”

Drennen said since companies currently using PFAS in their products will have to find alternatives, there has been some concern that this could lead to increased costs and some products being unavailable.

“…increased regulatory costs could cause some manufacturing companies to look at moving to other states with lower regulatory standards,” he added.

Other areas of concern with the legislation center on product liability and pollution liability lawsuits for companies that have exposure to PFAS in their manufacturing process or end product, as well as insurers that provide coverage for supply chain exposures, Drennen said.

Lawsuits over PFAS have increased in the past several years. A widely reported $671 million settlement in 2017 saw DuPont and Chemours Co agree to settle thousands of lawsuits involving a leak of perfluorooctanoic acid, a compound that is part of the PFAS family, Reuters reported. Since then, several U.S. states including New York, Ohio and Vermont have sued the manufacturers of PFAS over alleged harm to public health and the environment, Reuters added in its report.

“It is crucial that businesses do a complete audit of the materials and products that they have manufactured to see where their exposure to PFAS is,” Drennen said. “Additionally, they should look at their disposal and waste streams to make sure their insurance policies are covering them for non-owned disposal sites.”

Drennen added that insurance carriers should be inquiring about the use of PFAS in the supply chain, and even companies without direct use of PFAS in products should still consider examining supplier materials to make sure PFAS are not being used.

“Having these chemicals in products could open up insureds/carriers to lawsuits for personal injury to environmental clean up claims,” he said. “General liability polices after 1985 contain stronger pollution exclusions, but PFAS has been around since the 1950s so there is likely a lot of legacy exposure.”

He said the first step is for carriers to identify all of their insureds who have exposures to PFAS and address where each insured’s facility is located in relation to drinking water intakes, residential areas and bodies of water.

“We are seeing many carriers add PFAS/PFOS exclusions to environmental policies, but this is not on a blanket basis,” he said. “…I expect this will continue unless insureds can show they do not have contamination on their site.”

However, he said he remains hopeful any challenges will be ironed out in the long run as more states are beginning to implement stricter guidelines around PFAS.

In fact, Maryland recently banned 13 PFAS from being sold in cosmetic products, and Vermont passed a law prohibiting the sale of several categories of commercial products containing PFAS, according to an article on Lathrop GPM’s blog. The article added that last year, state legislatures considered more than 180 bills involving PFAS and at least 15 states enacted 27 bills focused on efforts regulating PFAS.

“Many states are looking at similar legislation, and there is currently a bill in the Senate that, if passed, would give the EPA (Environmental Protection Agency) one year to designate PFOS and PFAS harmful chemicals paving the way for federal enforcement action for clean-up of groundwater,” Drennen said. “Short of federal guidance [on] drinking water standards for PFAS, which tells you how much contamination is legally allowed, individual states will continue to pass their own standards.”

Related:

Popular Today