A law enacted by the Maine legislature in 2008 and amended in 2011 establishes a system for identifying priority chemicals, requiring manufacturers to report on priority chemicals in children’s products, and in some cases, banning the manufacture or sale of children’s products containing priority chemicals. See Maine Revised Statutes title 38, §§1691-96, as amended by 2011 Maine Legislative Document 1129, S.P. 319. The state has promulgated regulations to implement the law. 06-096 Code of Maine Rules, chs. 880-883.
Identification of priority chemical. Under the law, the DEP must publish a list of up to 70 “chemicals of high concern” by July 2012. A chemical may be included on the list only if: (1) it is a reproductive or developmental toxicant, an endocrine disruptor, or a human carcinogen; (2) biomonitoring studies indicate the chemical’s presence in the human body; sampling and analysis indicate its presence in the indoor home environment; or the chemical is present in household consumer products; and (3) the chemical is on the DEP’s list of “chemicals of concern." The DEP’s initial list of “chemicals of concern” includes chemicals that have been identified as: a carcinogen, reproductive/developmental toxicant, or endocrine disruptor; persistent, bioaccumulative and toxic; or very persistent and very bioaccumulative. Maine Rev. Stat. §§1693, 1693-A.
The law also authorizes the DEP to identify from the list of chemicals of high concern, “priority chemicals” that may be subject to further regulatory requirements. Maine Rev. Stat. §1694.
Regulation of priority chemicals. When priority chemicals are present in children’s products above a “de minimis level,” the law requires manufacturers, with specific exceptions, to report the number of products distributed in the state or nationally, the priority chemical(s) present in the product, and the function of the chemical(s) in the product. With stated exceptions, the law prohibits the sale or distribution of the product in cases where the manufacturer or distributor fails to provide the required information. In addition, the DEP may prohibit the manufacture, sale, or distribution of a children’s product in the state if priority chemicals are present in the product above the de minimis level, the product exposes children and vulnerable populations to the chemical, and one or more safer alternative are available at comparable cost. The law includes enforcement mechanisms, as well as exemptions in certain cases where the priority chemical occurs in a product only as a contaminant. Maine Rev. Stat. §§1695, 1695, 1699-A.
The law required the DEP to designate at least two priority chemicals by January 2011, and to date the agency has designated bisphenol A, along with the chemical class of nonylphenol and nonylphenol ethoxylates, as priority chemicals. In addition to reporting requirements for the designated chemicals, the regulations include a ban on the sale or distribution in the state of any reusable food or beverage container containing intentionally-added bisphenol A. 06-096 Code of Maine Rules, chs. 882, 883.
Interstate clearinghouse. The law authorizes the state to collaborate with other governmental agencies through an interstate clearinghouse to encourage use of safer chemicals in consumer products. Use of the interstate clearinghouse may include classifying priority chemicals; managing and organizing available data on chemicals; and producing and evaluating information on safer alternatives to specific uses of priority chemicals. Maine Rev. Stat. §1698.