Maine DEP reverses course and clarifies food packaging containing PFAS need not be reported

In late October 2022, DEP indicated on its website that food packaging is subject to the Law’s PFAS reporting requirement.¹ This interpretation came as a surprise to industry, which had interpreted the Law’s exemption for “Products subject to Title 32, chapter 26-A or 26-B” as exempting food packaging from the reporting requirement and eventual ban under the Law. As a reminder, Chapter 26-A prohibits the sale in Maine of packaging containing certain contaminants, including PFAS when DEP determines a safer alternative to PFAS is available in food packaging; Chapter 26-B provides mechanisms for Maine to identify priority food contact chemicals and prohibit sales of food packaging containing those chemicals. DEP took the position that because it had not yet completed a rulemaking under Chapter 26-A or designated PFAS as a priority food contact chemical under Chapter 26-B, the exemption for “Products subject to Title 32, chapter 26-A or 26-B” was not operative.

However, recent updates to DEP’s Frequently Asked Questions (FAQs), available on its website, indicate the Department has reversed its position.² In response to the FAQ “What products must be reported?,” DEP now states “[t]he packaging of a product is not required to be reported.” Further, the FAQ “Which products are exempted from the program?” clarifies, “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 as defined in 32 MRS § 1732 regardless of whether the Department has specifically regulated such items.” The response continues, “These exemptions apply only when items are actually used as packaging, packing components, or food packing, intended for marketing, handling, or protection of products.”

Based on these revised responses, DEP appears to be taking the position that food packaging that contains intentionally added PFAS is not subject to the reporting obligation or other requirements of 38 MRS § 1614, including the 2030 ban on PFAS in products. The changes also indicate that product packaging generally is not subject to the reporting requirement.

Please do not hesitate to reach out with any questions regarding Maine’s PFAS laws or other state PFAS bans.

Authored by Elizabeth Fawell, Andrea Bruce, and Connie Potter.
 

References

1  Hogan Lovells Update, Maine revises draft regulations for PFAS reporting law; triggers reporting for food packaging (Nov. 4, 2022).