Chemical Legislation in Maine
An Act to Protect Children's Health and the Environment from Toxic Chemicals in Toys and Children's Products
In 2008, Maine enacted legislation requiring the state’s Department of Environmental Protection (in concurrence with the Maine Department of Health and Human Services) to publish a list of Chemicals of High Concern for Children (CHCCs) by January 1, 2010. A substance may be listed as a CHCC if it is identified by an authoritative governmental entity on the basis of credible scientific evidence as being (1) a carcinogen, reproductive/development toxicant, or endocrine disrupter, (2) persistent, bioaccumulative, and toxic, or (3) very persistent and very bioaccumulative.
The DEP Commissioner (in concurrence with the Maine Department of Health and Human Services) may designate a CHCC as a Priority Chemical (PC) if the substance meets any of the following criteria:
- The chemical has been found through biomonitoring to be present in human bodily tissues or fluids;
- The chemical has been found to be present in the home environment (including household dust, indoor air, or drinking water);
- The chemical has been found to be present in fish, wildlife, or the natural environment;
- The chemical is present in a consumer product used or present in the home;
- The chemical has been identified as a high production volume chemical by EPA; or
- The sale or use of the chemical or a product containing the chemical has been banned in another U.S. state.
The Commissioner must designate at least 2 priority chemicals by January 1, 2011. Within 180 days of a substance being identified as a priority chemical, any manufacturer or distributer of a children’s product containing the priority chemical must notify the DEP with certain information about the product. The Board of Environmental Protection may adopt rules prohibiting the manufacture, sale, or distribution of a children's product containing a priority chemical if the board finds that the product exposes children and vulnerable populations to the substance, and at least one safer alternative is available at comparable cost.
ME. REV. STAT. ANN. tit. 38, § 1691 et seq.
On June 13, 2011, the Governor signed a bill amending the law (An Act to Provide DEP with Regulatory Flexibility Concerning the Listing of Priority Chemicals). Notably, the amendment adds an exemption from reporting in the case of inaccessible components not expected to come into direct contact with a child's skin or mouth. The amendment also adds an exemption from reporting for de minimis levels of a CHC or PC present in a component of a children’s product
For intentionally-added CHCs or PCs, the de minimis level is the practical quantification limit; for CHCs or PCs present as contaminants, the de minimis level is 100 ppm. The amendment specifies that children’s products are products made for or marketed for use by children under 12 years of age. The amendment also specifies that a consumer product is a product sold for indoor use in a residence, child care facility, or school, or a product sold for outdoor residential use if a child under 12 years of age may have direct contact with it.
Regulation of Chemical Use in Children’s Products
The Regulation authorizes the Board of Environmental Protection to designate a CHC as a PC through rulemaking. The manufacturer or distributor of a children’s product containing a PC must report certain information to the BEP, including information on the chemical’s use as well as alternatives to the chemical substance. The BEP may ban the sale of a product containing a PC if distribution of the children's product directly or indirectly exposes children and vulnerable populations to the priority chemical, and at least one safer alternative to the PC is available at a comparable cost.
Designation of the Chemical Class Nonylphenol and Nonylphenol Ethoxylates A as a Priority Chemical
Maine adopted a regulation designating the chemical class nonylphenol and nonylphenol ethoxylates as a priority chemical.
Designation of Bisphenol-A as a Priority Chemical and Regulation of Bisphenol-A in Children’s Products
Maine designated BPA as a priority chemical effective January 9, 2011. Within 180 days of the effective date, manufacturers of infant formula or baby food sold in a plastic container, jar, or can containing intentionally added BPA must report certain information to DEP. By January 1, 2012, such manufacturers must submit to DEP an assessment of alternatives to BPA. Within 180 days of the effective date, manufacturers of toys, child care articles, or tableware containing intentionally added BPA must also report to DEP. Effective January 1, 2012, the regulation prohibits the sale, offer for sale, and distribution of reusable food and beverage containers that contain intentionally added BPA. No later than 180 days prior to the effective date, such manufacturers of such products must file a compliance plan with Maine DEP.
On April 12, 2011, the Maine legislature passed a bill authorizing the BPA restrictions and reporting requirements to take effect. The BPA ban takes effect January 1, 2012.
An Act to Ensure that Children's Toys and Products Are Free from Lead
In 2008, Maine amended the state’s Lead Poisoning Control Act to prohibit the manufacture, knowing sale, distribution, or offer for sale of a lead-containing children’s product, starting July 1, 2009. A lead-containing children’s product is defined to either (1) contain lead at more than .009% of the total weight or include a product component containing lead at more than .009% of the total weight of the component, or (2) be coated with a paint or surface coating with a lead content that exceeds the Consumer Product Safety Commission safety rule (16 C.F.R. Part 1303). The law exempts from these restrictions consumer electronic products in which the lead-containing component is inaccessible to children
ME. REV. STAT. ANN. tit. 22, § 1316-A (2008)
An Act to Improve Toxics Use Reduction and Reduce Energy Costs by Maine Businesses
In 2010, Maine enacted legislation requiring prioritization of toxic chemicals. Effective July 1, 2012, the Act repeals existing provisions on Toxics Use and Hazardous Waste Reduction (Title 38, chapter 26). The Act implements new provisions (at chapter 27) requiring the Department of Environmental Protection to establish by rule a list of at most 10 priority toxic chemicals by July 1, 2011. A chemical may be included on the list if it has been identified on the basis of credible scientific evidence as known as or reasonably anticipated to be a carcinogen, reproductive/development toxicant, endocrine disruptor; persistent, bioaccumulative, and toxic; or very persistent and very bioaccumulative. DEP must review and revise the list at least every three years. Commercial and industrial facilities using more than 1,000 pounds of a priority toxic chemical per year are required, by July 1, 2012, to develop a pollution prevention plan or environmental management system. Starting July 1, 2013, such facilities must also file annual reports with DEP on their use of priority toxic chemicals. DEP had proposed to identify six substances as priority toxic chemicals: cadmium, formaldehyde, hexavalent chromium, perchloroethylene, styrene, and trichloroethylene. However, DEP failed to meet the July 1, 2011, statutory deadline for finalizing the list of priority toxic chemicals.
ME. REV. STAT. ANN. tit. 38 §2321 et seq.
An Order Promoting Safer Chemicals in Consumer Products and Services
On February 22, 2006, the Governor of Maine issued an Executive Order to promote safer chemicals in consumer products. The Order requires the Maine Department of Environmental Protection to provide to the public readily available information on safer alternatives to hazardous chemicals. DEP must also work towards virtually eliminating mercury from human-caused sources, assess alternatives to lead, and review information on alternatives to deca-BDE. The Order also establishes the Task Force to Promote Safer Chemicals in Consumer Products to develop recommendations on a comprehensive chemicals policy for Maine. The Task Force issued its final report in 2007.
See the letter from Michael E. Belliveau, Executive Director of the Environmental Health Strategy Center, to William J. Schneider, Maine Attorney General (July 11, 2011), here.
An Act To Protect Pregnant Women and Children from Toxic Chemicals Released into the Home
In 2007, Maine enacted legislation to revise the state’s restrictions on brominated flame retardants. The legislation lowered the maximum concentration of penta- or octa-BDE in products to 0.1%. Effective January 1, 2008, the law prohibits the manufacture, sale, offer for sale, or distribution of mattresses, mattress pads, and upholstered furniture intended for indoor use containing deca-BDE. Effective January 1, 2010, the law prohibits the manufacture, sale, offer for sale, or distribution of televisions and computers with a plastic housing containing more than 0.1% deca-BDE. The law also imposes restrictions on the concentration of deca-BDE in shipping pallets. Certain exemptions apply. The law establishes as state policy the replacement of deca-BDE with safer alternatives as soon as practicable. Starting June 1, 2011, the law prohibits replacing deca-BDE with a chemical alternative that is a PBT, a brominated or chlorinated flame retardant, or creates another chemical as a breakdown product that is a PBT.
ME. REV. STAT. ANN. tit. 38, § 1609