Attention distributors, manufacturers, and some retailers of children’s products sold into the State of Maine. The December 18, 2015 deadline to report the intentional use of formaldehyde and certain phthalates in children’s products sold into the State is less than a month away. The Department of Environmental Protection has the authority to bring enforcement actions against those failing to provide the required information by the deadline. More information about the reporting requirements can be found in previous posts published by this blog or by contacting the author directly at email@example.com.
Two new rules recently adopted by the Maine Department of Environmental Protection (“Maine DEP” or “the Department”) added formaldehyde and phthalates to the State’s list of Priority Chemicals. As of July 26, 2015, the Department now has the legal authority to regulate formaldehyde and four phthalates when they are intentionally added to “Children’s Products.” (Intentionally added chemicals trigger reporting requirements when they can be reliably measured (defined as “Practical Quantification Limit”); chemicals naturally occurring in products must be reported if they exceed 100 parts per million.) The new rules impose reporting requirements (and a one-time reporting fee) on manufacturers and distributors that must be submitted to the Department by December 18, 2015. The Department has been given the authority to bring enforcement actions against those failing to provide the required information on a timely basis.
Earlier this month, Maine DEP (Department) announced it would be proposing—or more accurately, re-proposing—the addition of two chemical to its list of “Priority” chemicals. The Department announced that it would be drafting rules to include formaldehyde and phthalates to its list of “Priority” chemicals.
By way of background, the current law creates three categories of chemicals: “Concern”, “High Concern”, and “Priority”. Only “Priority” chemicals intentionally used within “Children’s Products” at amounts greater than de minimus levels trigger reporting requirements.
Phthalates as Priority Chemicals – July 9, 2014
Yesterday, Maine DEP announced that it will consider listing four phthalates (pronounced THAY-lates) as “priority chemicals” under 38 M.R.S.A. § 1694. The phthalates, (di(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), benzyl butyl phthalate (BBP), and diethyl phthalate (DEP)), are currently designated as “chemicals of high concern” and would be shifted to “priority chemicals” under the draft rule. Maine currently has five chemicals designated as priority status: BPA, NP/NPE, cadmium, arsenic, and mercury.
Phthalates are used as plastic softeners, fragrances, and cosmetic lubricants in items such as personal accessories, footwear, building products, furniture, cleaning products, interior furnishings, and office/school supplies. Maine’s draft rule targets the intentional use of phthalates. (Errant quantities of phthalates are commonly found in items such as food and water.) When quantities exceed de minimis limits, manufacturers (and distributors) must report their presence to the Department. They must also indicate how many units have been sold within the State, explain the chemical’s function within the product, and justify its use if it is included in a child’s product. A public hearing on the matter is scheduled for July 29 at 1:00 p.m. in Augusta. The comment period will close on September 29.