Maine DEP Releases Draft Rule Regarding Food Packaging Containing PFAS and Phthalates

On October 23, 2023, Maine’s Department of Environmental Protection (DEP) released an updated draft rule, 06-096 C.M.R. Chapter 80 (“Reduction of Toxics in Packaging”), on the implementation of the State’s Toxics in Packaging Law. The draft rule imposes a sales prohibition for certain food packaging containing intentionally added per- and polyfluoroalkyl substances (PFAS) and also prohibits the sale of food packaging to which phthalates have been intentionally introduced in more than incidental amounts.  

The draft rule defines “PFAS” as referring to “any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom” and “phthalates” as “any member of the class of organic chemicals that are esters of phthalic acid and that contain two carbon chains located in the ortho position.”  

Maine’s Toxics in Packaging law, M.R.S. 32 §§ 1731-1738, authorized Maine’s DEP to issue a rule prohibiting the sale of food packaging containing intentionally added PFAS, provided DEP first determined that safer alternatives were available. Maine state officials had previously announced the State’s intention to follow the alternatives assessment for PFAS in food packaging carried out by Washington State. As Washington’s PFAS in packaging law applies to food packaging derived from paper, paperboard, or other plant fiber, Maine’s draft rule similarly proposes to prohibit the sale of the following categories of food packaging that are comprised, in substantial part, of paper, paperboard, or other materials originally derived from plant fibers and which are intended for short-term storage or to hold freshly prepared food, to which PFAS have been intentionally introduced in any amount greater than an incidental presence:  

• Bags and sleeves
• Bowls
• Closed containers 
• Flat serviceware
• Food boats
• Open-top containers
• Pizza boxes
• Plates
• Wraps and liners 

The rule exempts manufacturers of food or beverage products with less than $1 billion USD in total national sales.

The deadline for comments regarding the proposed rule is November 30, 2023.