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August 7, 2023

Maine Invites Stakeholder Comment on Rule Concept Draft Language Prohibiting Sale of Food Packages Containing PFAS

Lynn L. Bergeson Carla N. Hutton

On August 3, 2023, the Maine Department of Environmental Protection (MDEP) announced that it would accept stakeholder comment on its rule concept draft language that would prohibit manufacturers, suppliers, and distributors from offering for sale or for promotional purposes in Maine certain types of food packaging to which per- and poly-fluoroalkyl substances (PFAS) have been intentionally introduced. MDEP states that it has the authority to prohibit the sale of a food package to which PFAS have been intentionally introduced in any amount greater than an incidental presence if MDEP “determines that a safer alternative to the use of PFAS in a specific application to a food package is readily available in sufficient quantity and at a comparable cost, and that the safer alternative performs as well or better than PFAS in the specific application of PFAS to a food package.” MDEP notes that in February 2021, the Washington State Department of Ecology (WDOE) published the Per- and Poly-fluoroalkyl Substances in Food Packaging Alternatives Assessment, identifying four types of food packaging that meet Washington’s statutory criteria for a prohibition:

Food Packaging TypeAlternative Identified as Safer
Wraps and linersWax-coated alternatives
PlatesClay-coated and reusable alternatives
Food boatsClay-coated and reusable alternatives
Pizza boxesUncoated alternatives

According to MDEP, in May 2022, WDOE published a second alternatives assessment report, Safer Alternatives to PFAS in Food Packaging, that modified their process in two ways: first, by adjusting the concept of food packaging application to focus more on function rather than the package’s name; second, by relying on marketability to demonstrate cost and availability rather than direct price comparison of final products. MDEP states that this report identified safer alternatives for all five of the food packaging applications reviewed:

Food Packaging TypeAlternative Identified as Safer
Bags and sleevesDensified paper and wax-coated options
BowlsClay-coated, polylactic acid-coated, polylactic acid foam, and reusable options
Flat servicewareClay-coated, polylactic acid-coated, polylactic acid foam, and reusable options
Open-top containersClay-coated, densified paper, wax-coated, polylactic acid-coated, polylactic acid foam, aluminum, and reusable options
Closed containersClay-coated, polylactic acid-coated, polylactic acid foam, and aluminum options

MDEP states that because language in Washington’s related law mirrors criteria for determination in Maine law, it proposes to rely on the conclusions in WDOE’s reports that the safer alternatives identified perform as well as, or better, than PFAS in the specific applications of PFAS to the food package. MDEP requests written comment on this section of the Rule Chapter 80 Concept Draft by August 21, 2023. MDEP intends to initiate formal rulemaking with the Maine Board of Environmental Protection (MBEP) in fall 2023 to amend the existing Chapter 80 to incorporate these prohibitions. According to MDEP, “[t]his will be a major substantive rulemaking subject to review by the legislature before final adoption.” Stakeholders should e-mail with their name, affiliation, contact information, and comment in response to MDEP’s request for stakeholder engagement.