Maine DEP Indicates that Packaging need not be Notified under PFAS Reporting Law
The Maine Department of Environmental Protection (DEP) website, updated as of December 29, 2022, now states that packaging for a product subject to the State’s PFAS notification and reporting requirement “is not required to be reported.” Notifications under this law (Public Law c. 477, An Act To Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution, 38 MSRA § 1612) were due to be submitted to Maine DEP by January 1, 2023, and had previously been understood to include food packaging and packaging components of products that contain a PFAS substance.
As we noted in our news article posted on November 29, 2022, although the law specifically exempts products subject to Title 32, chapters 26-A and 26-B of the Maine Revised Statutes, under which Maine DEP was given authority to regulate PFAS use in food packaging materials, the Department took the position that packaging was not yet subject to an exemption under the law because the state had not yet completed its rulemaking under Title 32, chapter 26-A, and because PFAS was not yet listed as a priority food contact chemical under chapter 26-B. This interpretation took many in industry by surprise because the plain language of the statute appears to exempt packaging.
During the public consultation period on the second draft concept rule implementing this PFAS reporting requirement, Maine DEP received several comments on the Department’s interpretation of this statutory exemption, making precisely this point. In its comments, Defend our Health, a part of the Maine-based Environmental Health Strategy Center, noted that the Department’s interpretation was “mystifying and counterproductive.” Defend our Health suggested that the DEP review its position on the exemption to remove any ambiguity that packaging was not exempt from the PFAS reporting requirement. Other commenters similarly encouraged the Department to rethink its position.
In an apparent last-minute reconsideration, DEP updated its website to clarify the PFAS reporting requirement. Specifically, the Department updated the “Frequently Asked Questions” section of the page to modify the FAQ: “What products must be reported?” This FAQ now includes the statement, "The packaging of a product is not required to be reported” (emphasis in the original).
In addition, another FAQ on the website, “Which products are exempted from the program,” has been updated to include the statement: “The statutory exemption of products subject to Title 32, §26-A, Reduction of Toxics in Packaging, and Title 32, §26-B, Toxic Chemicals in Food Packaging, applies to all packing, packing components and food packaging as defined in 32 M.R.S. § 1732 regardless of whether the Department has specifically regulated such items. These exemptions apply only when items are used as packaging, packing components, or food packing, intended for marketing, handling, or protection of products.”
Thus, at least in the case in which a PFAS substance is present in an article used to package food, Maine DEP is taking the view that the exemption provided in the PFAS reporting law (38 MSRA § 1612) is effective.
For further information or assistance, please contact us at info@packaginglaw.com, and we will put you in touch with one of our partners in Keller and Heckman’s FDA Practice Group.”