Maine Asserts Food Packaging Not Exempt from State PFAS Reporting Requirement; State Requests More Data on PFAS in Food Packaging
The Maine Department of Environmental Protection (MDEP) has updated its Frequently Asked Questions webpage to clarify the state’s position that food packaging is not exempt from the PFAS reporting requirement under Public Law c. 477, An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution. The law exempts products subject to Title 32 Chapters 26-A and 26-B of the Maine Revised Statutes. However, because PFAS are not yet banned under Chapter 26-A and is not listed as a priority food contact chemical under Chapter 26-B, MDEP has taken the position that PFAS in food packaging are not currently exempt from the reporting requirement, which becomes effective January 1, 2023.
The requirement for reporting PFAS in food packaging was also discussed by Tom Graham, an Environmental Specialist at MDEP, during an October 27 Stakeholder meeting. Graham explained that the agency’s interpretation was advised by the Maine Attorney General. Importantly, he stressed that all products, regardless of their date of manufacture, will be subject to the reporting requirement unless MDEP has granted an extension to the manufacturer of the product. MDEP has published a list of companies that have requested an extension from the agency.
The comment period for the second concept draft rule implementing the law ended on November 10, 2022. Mark Margerum, Program Manager of PFAS at MDEP, explained that the agency will submit the draft rule to the Maine Attorney General’s office for review, and then to the Maine Board of Environmental Protection (MBEP) to begin the formal routine technical rulemaking process. Margerum further explained that the rulemaking process will include a public hearing, likely to occur in January 2023, as well as an additional public comment period, which will remain open for a minimum of ten days following the public hearing. Consideration of the comments received during the formal comment period is projected to take an additional two months, with the final draft rule expected to be released for consideration and adoption by MBEP in April 2023.
MDEP may exempt products from the requirements under the reporting law by adopting a major substantive rulemaking if a “currently unavoidable use” (CUU) determination is made. However, CUU exemptions do not come into effect until the subsequent substantive rulemaking is complete. In response to a question about the schedule for CUU rulemaking, Margerum responded that the earliest start date for a CUU rulemaking would be late 2023.
A system for reporting the intentional use of PFAS to MDEP, as required under the law, is not yet available. MDEP aims to have a reporting database in place by the effective date of the final rule implementing the reporting law. In the interim period between the effective date of the reporting requirement (January 1, 2023) and the effective date of the final rule (expected later in 2023), reports may be submitted electronically to PFASproducts@maine.gov.
MDEP Requests Information on PFAS Safer Alternatives
Title 32, Chapter 26-A of the Maine Revised Statutes authorizes MDEP to prohibit the sale of food packaging containing intentionally added PFAS, provided MDEP first determines that a safer alternative is available in sufficient quantity and at a comparable price. The alternative must also perform as well as or better than PFAS. On November 15, 2022, MDEP requested data concerning the cost and availability of certain types of food packaging to which PFAS have been intentionally introduced, pursuant to the requirements of Chapter 26-A.
In the request for data, MDEP explains that it is proposing to rely on reports by the Washington State Department of Ecology (DOE) that identify alternatives to PFAS, as the language in Maine’s law mirrors the language in a related law in Washington State. Washington DOE has identified the following alternatives:
| Food Packaging Type | Identified as Safer |
|---|---|
| Wraps and liners | Wax-coated alternatives |
| Plates | Clay-coated and reusable alternatives |
| Food boats | Clay-coated and reusable alternatives |
| Pizza boxes | Uncoated alternatives |
| Bags and sleeves | Densified paper and wax-coated options |
| Bowls | Clay-coated, polylactic acid-coated, polylactic acid foam, and reusable options |
| Flat serviceware | Clay-coated, polylactic acid-coated, polylactic acid foam, and reusable options |
| Open-top containers | Clay-coated, densified paper, wax-coated, polylactic acid-coated, polylactic acid foam, aluminum, and reusable options |
| Closed containers | Clay-coated, polylactic acid-coated, polylactic acid foam, and aluminum options |
MDEP has requested that written comments regarding the availability and cost in Maine of the safer alternatives identified by the Washington DOE be submitted by December 16, 2022.
Editor’s note: For more recent developments on how Maine’s PFAS reporting requirement could impact food packaging, see our January 24, 2023, article, Maine’s Rulemaking for its PFAS Reporting Moves Forward.