In June 2019, Public Law c. 277 An Act To Protect the Environment and Public Health by Further Reducing Toxic Chemicals in Packaging [LD 1433, 128th Legislature] was signed into law adding Chapter 26-B to the already established Reduction of Toxics in Packaging law (32 MRSA §§1731-1747). This revised law now includes a chemical listing process for the purposes of assessing the chemicals currently used in food packaging and replacing those chemicals with safer alternatives when they are available.

In order to reduce the toxicity of packaging material, existing law prohibits the use of certain chemicals in packaging sold in the State, such as lead, mercury, cadmium, and hexavalent chromium. In addition to the prohibition on those chemicals, new sections of this law have been added that effect which chemicals can be used in food packaging.

For more information, contact Kerri Farris at 207-215-1894

Phthalates | PFAS in Food Packaging | Chemicals of High Concern

Phthalates

Starting January 1, 2022, food packaging sold in Maine cannot contain intentionally introduced amounts of phthalates. Food packaging includes packaging that contains a food or beverage product, and plastic disposable gloves. Manufacturers with less than $1 billion of total annual national sales of food and beverage products are exempt from this requirement.

Due to food supply shortages in late 2021, the Commissioner released a Statement on Enforcement Discretion, allowing food sold in noncompliant packaging to temporarily continue to be sold in Maine. Beginning July 1, 2022, any food sold in noncompliant packaging must no longer be offered for sale in Maine. All noncompliant products must be removed from store shelves.

The Department will develop a proposed rule to provide additional clarification and technical details to support effective implementation. The statutory prohibition remains in effect without a rule, and any final rule will not alter the statutory prohibition on intentionally introduced phthalates in food packaging. The Department will issue a request to solicit stakeholders interested in becoming part of the rulemaking process. To receive this notification request and become a part of this rulemaking, please email Kerri Farris.

Certificate of Compliance

An acceptable certificate of compliance is a statement signed by a senior manager with authority to speak on behalf of the organization which states that the food packaging being sold in Maine after January 1, 2022, does not contain any intentionally introduced amounts of phthalates. This statement must be made available to Maine DEP upon request.

PFAS in Food Packaging

Maine law 32 MRS §1733(3-B) directs the Department to initiate major substantive rulemaking to prohibit the use of PFAS in food packaging after making the determination that safer alternatives to the use of PFAS in specific applications of food packaging is available. On April 18, 2024, the Board of Environmental Protection approved final adoption of Chapter 80 Section 5 to prohibit PFAS use in certain types of food packaging sold in Maine. The statute provides that this prohibition goes into effect two years following the date of the Department’s final determination. The Secretary of State has assigned an effective date of May 25, 2024, for this rulemaking. Therefore, the effective date of this prohibition is May 25, 2026.

The adoption of this rule establishes the following regulation (effective May 25, 2026): a manufacturer, supplier, or distributor may not offer for sale or for promotional purposes in the State food packaging intended for direct food contact comprised, in substantial part, of paper, paperboard, or other materials originally derived from plant fibers which are intended for short-term storage or to hold freshly prepared food, to which PFAS have been intentionally introduced in any amount greater than an incidental presence and are one of the following:

1. bags and sleeves: bags and sleeves are containers made from flexible material that can be folded flat and are typically used to transport food from a foodservice establishment. Sleeves include sealed-end bags referred to as pinch-bottom bags.

2. bowls: an open-topped container with a wide rim opening and a bottom that allows spooning of food. These containers are typically designed to hold foods for serving that have a substantial liquid component; this includes portion cups.

3. closed containers: a container that encloses food on all sides, with interlocking pieces or overlapping walls which hold the container closed for transport. Examples include clamshells, food pails, bakery boxes, and deli containers.

4. flat serviceware: shallow, flat-bottomed containers with large surface areas used for serving and transporting food which have one large surface or multiple compartments to separate food items during food service. Examples include, but are not limited to, trays, cafeteria-style trays, and plates.

5. food boats: a type of tray with tall sides and no compartments.

6. open-top containers: containers that enclose food on all but one side and are designed to hold food for serving or transportation. Examples include, but are not limited to, paper cones, cups, bowls, and food boats.

7. pizza boxes: a folded box used for serving, holding, or transporting various sizes of pizza or calzones.

8. plates: flat serviceware, whether single or with multiple compartments, used for serving or holding food items during food service.

9. wraps and liners: sheets used to wrap food for food service or create a lining inside other serviceware to act as an additional barrier.

This prohibition does not apply to a manufacturer of a food or beverage product that is contained in a food package or to which a food package is applied if that manufacturer has less than $1,000,000,000 of total annual national sales of food and beverage products.

Chemicals of High Concern List

New sections of law also require the Department to publish a list of no more than 10 food contact Chemicals Of High Concern which will help the Department gather information on the current use of those chemicals in food packaging (32 MRSA, Chapter 26-B). To be listed as a food contact chemical of high concern in this context the chemicals must meet the following criteria:

• present on Maine’s Chemicals of Concern list published in accordance with Title 38, section 1693; or
• has been identified by an authoritative governmental entity as:
  • a carcinogen, reproductive or developmental toxicant or an endocrine disruptor;
  • persistent, bioaccumulative and toxic; or
  • very persistent and very bioaccumulative.

The Department must also determine that there is strong credible scientific evidence that the chemical is a reproductive or developmental toxicant, endocrine disruptor or human carcinogen;
and
that there is strong credible scientific evidence that the chemical meets one or more of the following exposure based criteria:

• found through biomonitoring studies to be present in human blood, human breast milk, human urine, or other human bodily tissues or fluids;
• found through sampling and analysis to be present in a food or beverage product; or
• has been added to or is present in a food package.

After review of publicly available information, the Department has generated a list of 10 Food Contact Chemicals Of High Concern which includes details about how each meets the statutory criteria for listing.  This document has proceeded through the public comment process and is posted here in its final form, accompanied by the Department’s Response to Comments which were submitted earlier this year.