AUGUSTA, Maine (Legal Newsline) – Pending legislation in Maine that bans certain products is opposed by industry groups and will also create, according to a toxic torts lawyer, “considerable burdens” on companies who will risk punishment if they fail to report that their products contain chemicals known as PFAS.
Maine’s LD1503 follows Maine Board of Environmental Protection regulation passed last year that extended reporting requirements to a “vast array of industry types,” says John Gardella, a shareholder at CMBG3 Law in Massachusetts.
The bill includes a product ban on PFAS-containing carpets and fabric treatments and is similar to legislation introduced in California, Massachusetts, New York, Maryland, Oregon and Vermont. It also stipulates the State could ban other products in the future.
“I have been surprised by the states that have enacted or sought to enact bans on carpets that contain PFAS, only because there is very little in the way of scientific study, specifically relating to how people can be exposed to PFAS from carpets,” Gardella told Legal Newsline.
“The most natural and obvious mechanism of concern would be dermal exposure… but there have been no studies specifically looking at this issue and answering important questions such as: ‘how often would someone have to come into contact with a carpet for there to be a risk’; ‘is a brief transitory contact with a carpet enough dermal exposure for there to be PFAS absorption’; and ‘if the carpets contain one of the over 7,000 FPAS that haven’t been studied very much, is it scientifically justifiable at this point to ban the product without that foundational knowledge?”
PFAS is used in firefighting foam and consumer products like non-stick cookware and waterproof clothing. They have been dubbed "forever chemicals" because they don’t leave the human body once they make it in.
Whether humans are being exposed to them at a toxic level is up for debate.
Research provided by a PFOA settlement earlier this century drew links to six diseases like kidney and testicular cancer, but many consider those results far from a complete study, considering the only individuals who were studied lived in the surrounding area of a DuPont plant in West Virginia.
Epidemiologist Kyle Steenland, of Emory University’s School of Public Health, wrote in an article funded by the Centers for Disease Control that evidence linking PFAS and cancer “remains sparse.”
The Environmental Protection Agency under President Trump refused to set a formal toxicity level, and Steenland’s article agreed that doing so would be premature – given the lack of research.
Noting the inconsistencies of cancer rates, as well as what chemical (there are thousands in the PFAS family) was the subject of the exposures, his and Andrea Winquist’s article called the results of the various studies “informative, but not entirely conclusive.”
Companies like DuPont and 3M face lawsuits in a federal multidistrict litigation in South Carolina. In Congress, Democrats are again ready to try to make PFAS hazardous substances under the federal Superfund law, which would open countless companies to liability.
At the state level, some have passed their own contaminant levels that are far below the EPA’s 70 parts per trillion advisory and also hired private lawyers on contingency fees to file lawsuits.
Maine’s legislation includes a requirement that the manufacturer of a product that contains intentionally added PFAS submit a written notification to the Department of Environmental Protection that includes the purpose of the PFAS and the amount, starting in 2023.
It also notes that “additional product categories containing intentionally added PFAS may also be identified by the department and prohibited from sale.”
Groups like the American Chemistry Council, the Maine State Chamber of Commerce and Maine Grocers and Food Producers wrote to Maine lawmakers earlier this month to oppose LD1503.
“The legislation as written could eventually ban thousands of products from sale and transport of those products into the state,” the letter says.
“It would be the broadest ban on products containing PFAS in the nation and would have far-reaching negative consequences on nearly every sector of the economy including aerospace, autos, alternative energy, healthcare, building and construction, electronics, pharmaceuticals and agriculture.”
PFAS play vital roles in lowering emissions on automobiles and the manufacture of solar panels, the letter says, not to mention they are used in medical equipment.
“(T)he legislation would undermine effective product design, and in some cases, even overall product safety and efficacy for a broad range of products – including applications that are important for public safety and public health,” the letter says.
After the bill passed the Maine House, it was sent on June 10 to the Appropriations Committee. The legislative session has been extended to the end of June.
The bill’s sponsor, Lori Gramlich, has been an advocate for regulation of PFAS and its presence in the water in Maine possibly emboldened her to push for the product ban, Gardella said.
The fact that a state chose to ban them could hurt the manufacturers of carpets and stain-resistant products in lawsuits, though Gardella says that would be a minor point in overall trial strategy.
(T)he biggest impact that LD1503 will have on industry, though, is the reporting requirement placed on manufacturers that utilize PFAS in their products,” Gardella said. “A few other states have introduced bills with similar reporting requirements, and the EPA in fact broadened its own reporting requirements with respect to PFAS just a few days ago.
“There are considerable burdens placed on companies that are of concern to numerous industries…”