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Maine Considering Priority Chemical Reporting Requirement for PFOS

The Maine Department of Environmental Protection is seeking input by 6 May on a proposal to add perfluorooctane sulfonic acid (PFOS) to the list of priority chemicals subject to its Safer Chemicals in Children's Products reporting requirement. Under this 2008 law, the agency classifies chemicals into three tiers: 1,400 chemicals of concern, 36 chemicals of high concern, and a small number of priority chemicals subject to a reporting requirement.

If finalised, the addition of PFOS to the priority chemical list would require manufacturers or distributors of certain children’s products containing intentionally added non-de minimis amounts of PFOS to report specific information to the state of Maine, with new market entrants required to do within 30 days of the product’s availability in the state. The list of affected children’s products would include child care articles, children's clothing, children's footwear, children's sleepwear, children's toys, cookware, tableware, reusable food and beverage containers, cosmetics and personal care products, craft supplies, electronic devices, and household furniture and furnishings. The overall heading references “certain children’s products,” so presumably even cookware, tableware, reusable food and beverage containers, electronic devices, and household furniture and furnishings would only be subject to the reporting requirement if marketed for use by children under the age of 12.

California has a number of unique environmental and consumer product safety regulations and the economic importance of that state often requires manufacturers and importers to treat such regulations as de facto national requirements. In contrast to California, Maine has one of the smallest economies in the United States. Nevertheless, the state has historically been fairly pro-active in environmental and consumer product safety matters and has taken a leading role on the issue of chemical contamination. In the case at hand, the Department of Environmental Protection asserts that PFOS meets priority chemical criteria because it has been found to be present in the human body, household dust and indoor air, as well as in products used in the home such as clothing with water repellence. Among other associations, the American Apparel and Footwear Association already has a section on its website to help its members comply with Maine’s priority chemical reporting requirement.

Chemicals already subject to Maine’s reporting requirements include bisphenol A; the flame retardants decabromodiphenyl ether (decaBDE) and hexabromocyclododecane (HBCD); the phthalates di(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), benzyl butyl phthalate (BBP) and diethyl phthalate (DEP); formaldehyde; nonylphenol and nonylphenol ethoxylates (NP/NPE); cadmium; mercury; and arsenic. If the proposal on PFOS is finalised, affected manufacturers/distributors would be required to submit the following information:

  • name and address of the manufacturer, and name, address and phone number of a contact person for the manufacturer;
  • description of the manufacturer’s product(s) containing PFOS, including the overall size of the product and/or the component of the product that contains PFOS and whether the product or PFOS-containing component can be placed in the mouth (if smaller than five centimetres in one dimension);
  • amount of PFOS in each unit of the product reported;
  • function of PFOS in the product reported;
  • number of product units sold or distributed in Maine or nationally, and
  • any other information the manufacturer deems relevant to the reporting.

The Department of Environmental Protection will establish a one-time reporting fee to cover information management costs. For current products, the structure is set up as a base fee of US$100 and an additional amount between US$50 and US$300 per product, depending on how many product units are sold in Maine.

PFOS and related chemicals have been around for decades and have been used in oil and water repelling applications such as non-stick cookware and certain fabrics. As a result of health and environmental concerns, the primary U.S. manufacturer of PFOS voluntarily phased out its production in 2002. However, it takes a long time for these chemicals to break down in the environment.

The U.S. Environmental Protection Agency announced in February a national action plan covering PFOS and related chemicals. The EPA has begun the process of listing PFOS as a hazardous substance under the Superfund law, which would help communities deal with contamination and recover costs from responsible parties. EPA Assistant Administrator for Water Dave Ross has indicated that his agency will also publish recommendations very soon on cleaning up PFOS and related chemicals in groundwater. However, the EPA is not yet taking any national action on consumer products comparable to Maine’s regulations. Critics say that the EPA’s move to regulate PFOS and related chemicals by the end of this year amounts to yet another delay. “It has taken the EPA nearly a year just to kick the can even further down the road,” said Sen. Tom Carper (Democrat-Delaware).

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