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Proposed Maine Bill Would Prohibit Phthalates and PFAS In Food Packaging

May 28, 2019

On March 28, 2019, the Maine legislature introduced a bill to prohibit intentionally added phthalates and perfluoroalkyl and polyfluoroalkyl substances (PFAS) in food packaging. Titled, “An Act To Protect the Environment and Public Health by Further Reducing Toxic Chemicals in Packaging,” the proposed bill would amend the state’s toxics in packaging law, which currently prohibits the unnecessary addition of heavy metals to packaging and its components. Earlier in March, Maine’s governor issued an executive order to establish a task force to study PFAS contamination. (Click here for more details on that Executive Order.)

The proposed bill, H.P. 1043 or LD 1433, would prohibit the sale of food packaging to which phthalates have been intentionally added in any amount greater than an incidental presence, beginning January 1, 2022. “Intentional introduction” is defined as the deliberate use of a chemical in the formation of a package or packaging component “when its continued presence is desired in the final package or packaging component to provide a specific characteristic, appearance or quality.” Conversely, the use of a regulated chemical “as a processing agent or intermediate to impart certain chemical or physical changes during manufacturing, when the incidental retention of a residue” of the chemical “in the final package or packaging component is neither desired nor deliberate, is not considered intentional introduction.”

The proposed bill also would authorize the Maine Department of Environmental Protection to issue a rule prohibiting the sale of food packaging containing intentionally added PFAS, if the Department determines that a safer alternative is available. The prohibition may not take effect until January 1, 2022, or two years following Maine’s Department of Environmental Protection determination that a safer alternative is available, whichever is later. The “safer alternative” must be readily available in sufficient quantity, at a comparable cost, and perform equally well as the material it is replacing in the intended application.

The bill was referred to the Committee on Environment and Natural Resources on March 28 and reported out of the committee on May 24. The bill is now scheduled to be considered by the full House.

Several trade associations have expressed concern that H.P. 1043 does not distinguish between short and long-chain PFAS. For example, in written testimony to the Committee during an April 17, 2019 hearing on the bill, Patrick Strauch, Executive Director of the Maine Forest Products Council, stated, “it is unreasonable to treat all PFAS the same regardless of their toxicity, and regardless of concentration in the package.” Similarly, Elizabeth Bartheld, Vice President of Government Affairs, American Forest & Paper Association, wrote, “policy and regulations should be based on credible science and reflect actual exposure to and risk from chemicals in specific products, not merely whether de minimis or trace levels of a chemical may be present.” Emphasizing that PFAS in food packaging is already comprehensively regulated at the federal level by the U.S. Food and Drug Administration (FDA), she added that states should avoid duplicative regulation efforts.