Will ‘Forever Chemicals’ be Around Forever?

PFAS are a group of chemicals used to make coatings and products that are heat, oil, stain, grease, and water resistant.⁷ They are used across many industries and in a wide range of products, including “food packaging, cosmetics, cookware, waterproof textiles, guitar strings, dental floss, firefighting foam, and stain protectors like Scotchguard.”⁸ However, based on increasing scientific research, PFAS have been linked to serious health problems such as “cancer, liver disease, decreased immunity, kidney disease, plummeting sperm counts, endocrine disruption, high cholesterol, birth defects, and more.”⁹ In fact, it is estimated that PFAS have contaminated the drinking water of around 100 million people.¹⁰ Moreover, a Centers for Disease Control and Prevention (CDC) National Health and Nutrition Examination Survey (NHANES) discovered PFAS in the blood of 97 percent of Americans.¹¹ PFAS are extremely unique chemicals because they do not fully break down and can accumulate in humans and the environment; this is why these chemicals are nicknamed “forever chemicals.”¹² Thus, over the years it has been increasingly important to regulate products that contain PFAS and PFAS-contaminated water.

On July 15, 2021, Maine became the first state in the United States to adopt legislation that bans PFAS-containing products.¹³ Under this statute, Maine requires manufacturers to submit a written notification to the Department of Environmental Protection that details the amount of PFAS that are in their products.¹⁴ Further, as of January 2023, Maine will prohibit the sale of any carpet, rug, or fabric treatment that contains “intentionally added PFAS.”¹⁵ Most notably, under this law Maine aims to phase out the use of products containing PFAS, and effectively seeks to ban the sale of any product containing PFAS by January 1, 2030.¹⁶

This article argues that other states should adopt legislation that bans PFAS in products. However, while Maine has passed groundbreaking legislation that will effectively ban forever chemicals in products by 2030,¹⁷ there are potential issues and practical concerns regarding Maine’s legislation. For example, Maine’s statute only seeks to prohibit the sale of products with “intentionally added PFAS.”¹⁸ Although the law defines intentionally added PFAS, it fails to acknowledge that many products do not have intentionally added PFAS; thus, many products may fall outside Maine’s ban. Therefore, this article proposes a recommended statute that seeks to resolve this and other potential issues.

This article is comprised of four parts. Part I provides a general background of the chemical structure and properties of PFAS and a brief history of their use and development. Part I further describes the federal and state government legislative landscape regarding PFAS and examines the health risks that PFAS pose to humans. Part II provides the contents of Maine’s statute and analyzes its provisions. Part III discusses the potential issues with PFAS state legislation generally and then discusses the specific drawbacks of Maine’s statute. Part IV proposes a recommended statute that directly responds to the issues raised in Part III. The main goal of this legislation is to ensure the health of the population. Therefore, this article argues that, at minimum, states should phase out products containing PFAS.

Background

Chemical Structure and Properties of PFAS

PFAS are a class of man-made chemicals that includes over 4,000 “fluorinated aliphatic compounds.”¹⁹ There are many different subclasses of PFAS such as perfluoroalkyl acids, perfluoroalkylether acids, fluoropolymers, and perfluoroalkyl acids.²⁰ The most studied and widespread PFAS are perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS).²¹ PFAS “contain 1 or more carbon atoms with fluorine atoms in place of hydrogen atoms, such that the compound contains the moiety C_nF_2n+1-R.”²² In addition to the carbon and fluorine atoms, PFAS can contain highly reactive functional groups, which are represented by “R,” including sulfonates and carboxylic acids.²³ In perfluoroalkyl compounds, the carbon alkyl chain is fully saturated with fluorine atoms, instead of hydrogen atoms.²⁴ Polyfluoroalkyl compounds are similar to perfluoroalkyl compounds; however, there is at least one carbon with hydrogen atoms, meaning that not every carbon is attached to fluorine.²⁵

The carbon-fluorine bonds in PFAS are extremely important to the chemistry of these compounds. The carbon-fluorine bonds are both chemically and thermally stable because the carbon-fluorine bond is one of the strongest bonds.²⁶ Therefore, due to the strength of the bonds in these compounds, they do not break down.²⁷ Indeed, because these compounds do not degrade, scientists are still unable to determine the half-life of PFAS, which is the amount of time it takes for half of the compound to decay.²⁸

PFAS can be broadly divided into two categories: polymers and non-polymers.²⁹ Polymers are essentially molecules that are made up of many segments, while non-polymers usually have a chain length “between 2 and 13 atoms, [which are] much shorter than those of polymers.”³⁰ Non-polymer molecules are “more mobile, reactive and more easily transferred into wildlife and humans.”³¹ Non-polymers can be further broken down into two groups: short-chain PFAS or long-chain PFAS. This distinction is probably the most important because current regulations and research stress it. “The non-polymers usually contain between 2 and 13 atoms making up the ‘chain’ part of the structure. Depending on this chain length, they are referred to as either ‘short-chain’ or ‘long-chain.’”³² Usually, short-chain PFAS contain six or fewer atoms making up the chain, whereas long-chain PFAS have seven to 13 atoms making up the chain.³³ However, the chain length distinction can be somewhat muddied depending on the functional group of a compound.³⁴ For example, “perfluoroalkyl sulfonates are considered short chain if they have five or fewer carbons, while the carboxylates are considered short chain if they have seven or fewer carbons.”³⁵

PFOA and PFOS are the most well-known long-chain PFAS, which each have an eight atom chain and are known as C8.³⁶ Both PFOA and PFOS have largely been phased out due to voluntary agreement between companies and the EPA in the early 2000s.³⁷ Presently, many manufacturers are trying to switch to short-chain PFAS; however, there is growing evidence that these short-chain homologues are just as toxic.³⁸ The characteristics of PFAS that are generally seen as beneficial in industry and the negative health effects due to PFAS exposure are discussed below.³⁹

History of PFAS and Government Response to Contamination

A Brief History of PFAS and PFAS Contamination Studies

The first fluoropolymer was synthesized in 1934.⁴⁰ In 1938 Dr. Roy J. Plunkett, a chemist working for DuPont, accidentally synthesized polytetrafluoroethylene (PTFE).⁴¹ Shortly after, PTFE was “commercialized as the non-stick coating Teflon.”⁴² During the same period, 3M started manufacturing PFOA, and DuPont started to buy PFOA from 3M to make Teflon.⁴³  Companies then started to develop PFOA and PFOS for product applications. In fact, “3M launched several products based on PFAS, including Scotchgard.”⁴⁴

During the 1960s, 3M and the United States Navy developed a firefighting foam called aqueous film-forming foam (AFFF), which contained PFOS and PFOA.⁴⁵ However,  multiple studies started to show the toxicity of PFOS and PFOA.⁴⁶ Companies, such as 3M and DuPont, began these studies as far back as the 1950s; however, the companies kept the studies secret from their employees and the public.⁴⁷ In fact, many internal documents that reported research have surfaced decades later in litigation against these companies.⁴⁸ For example, in a lawsuit that Minnesota filed against 3M in 2010, it revealed that 3M knew in 1975 that PFAS were accumulating in people’s blood.⁴⁹ Documents further showed that 3M researchers found the accumulation of PFAS in fish during the 1970s.⁵⁰ In the 1990s, 3M determined that there was a “positive association between the amount of PFOA in [3M] workers’ blood and their levels of cholesterol and triglycerides.”⁵¹

Moreover, in 1981, DuPont discovered that these chemicals can pass from a mother to her unborn child by crossing the placenta when the company tested the umbilical cord blood of workers’ newborns.⁵²  DuPont did not publish these findings and continued to produce PFAS.⁵³ In 1999, attorney Robert Bilott sued DuPont on behalf of Wilbur Tennant, a cattle farmer from Parkersburg, West Virginia.⁵⁴ During this lawsuit, it was discovered that DuPont pumped thousands of PFOAs into the Ohio River, which then entered the local water table.⁵⁵

By 2002, 3M stopped producing PFOA and PFOS.⁵⁶ In 2006, other major companies agreed to phase out PFOA and PFOS by 2015.⁵⁷ Yet though the production, use, and importation of PFOA has ended in the United States, many companies started to create new “short-chain PFAS,” which have been found to be similarly hazardous.⁵⁸

Even this brief history shows that the companies that were developing PFAS and putting them in products — to a point that PFAS have become ubiquitous — are the same companies that knew how toxic these chemicals were to humans, animals, and the environment. These are also the same companies that are in the best position — financially and knowledge-wise — to find safe alternatives to PFAS. However, based on current trends of using short-chain PFAS, it is evident that government regulation and research on PFAS production are absolutely necessary.

Federal and State Response to PFAS Contamination

There has been some federal agency and piecemeal legislative response to PFAS. In 1976, Congress enacted the Toxic Substances Control Act (TSCA) to “prevent unreasonable risks of injury to health or the environment associated with manufacture, processing, distribution in commerce, use, or disposal of chemical substances.”⁵⁹ However, many scholars have criticized the law for lacking teeth because the EPA has been unable to use the statute effectively.⁶⁰ In over 40 years, the EPA has only managed to limit or ban five dangerous chemicals.⁶¹ A big “gap” in the law was that it did not require companies to examine and disclose information about toxic chemicals.⁶² Therefore, companies were able to avoid liability and to make different PFAS without having to prove that they were safe.⁶³ Due to the inadequacy of the TSCA, the chemical industry and health and environmental advocacy groups are pushing for a reform bill.⁶⁴

The EPA has taken some measures to address PFAS and hold companies accountable. For example, in 2005 the EPA fined DuPont $16.5 million for its “decades-long cover-up of the health hazards” of C8.⁶⁵ This fine remains the largest ever levied by the EPA.⁶⁶ In November 2016, the EPA published a health advisory on PFOA and PFOS, which established the level of PFAS in drinking water at 70 parts per trillion.⁶⁷ In 2019, the EPA issued a PFAS Action Plan.⁶⁸ The Action Plan detailed the short-term actions that were taking place and set out long-term goals to reduce exposure.⁶⁹ Long-term actions included research initiatives and regulatory actions to protect public health.⁷⁰ The Biden-Harris Administration launched another plan to combat PFAS pollution. On October 18, 2021, the administration announced it would take “accelerated efforts to protect Americans” from PFAS.⁷¹ As part of this plan, the EPA launched a robust PFAS Roadmap that guides the EPA’s activities from 2021 to 2024 to research, restrict, and remedy harmful PFAS.⁷² However, the federal government has yet to take more formal action, leaving this issue to be solved primarily by states.

States have tried to address PFAS by filing lawsuits against companies and by enacting legislation. As mentioned above, Minnesota sued 3M in 2010; the state attorney general stated that “3M knowingly contaminated groundwater . . . putting residents at risk of cancer and infertility.”⁷³ This lawsuit sought $5 billion in damages, but was eventually settled for $850 million.⁷⁴ Minnesota used the settlement money to pay for “large and small projects to get PFAS out of the drinking water.”⁷⁵ Many other states, such as New Hampshire, New Jersey, New York,  Vermont, and Ohio have also asserted actions targeting these companies.⁷⁶ For example, New York State’s attorney general sued The Chemours Company, 3M, DuPont, and other companies claiming “toxic substances in the manufacturers’ products, . . . threatened public health.”⁷⁷

States have also enacted laws, usually either banning specific products that contain PFAS or regulating PFAS levels in water. “In 2019, state legislatures considered over 100 bills related to PFAS and in 2020, state legislatures considered more than 180.”⁷⁸ Similarly, at least 27 states considered PFAS policies in 2021 and in 2022 it is predicted at least three dozen states will consider policies to regulate toxic chemicals.⁷⁹ Most state legislation focuses on drinking water, restricting PFAS in firefighting foam, and funds for remediation activities.⁸⁰ For example,  New York’s Senate Bill S4011 establishes maximum levels of PFAs in drinking water.⁸¹ Wisconsin proposed a bill that required sampling and testing public water supplies.⁸² Further, the Wisconsin bill aimed to collect and dispose of PFAS-containing firefighting foam.⁸³ Additionally, that bill would have created a “municipal grant program to investigate and address PFAS contamination.”⁸⁴ This bill recently failed to pass and is now tabled,  Maine is the first state to enact a broad ban on all PFAS in products.

Health Impacts Due to PFAS Exposure

Due to their chemical properties, many PFAS are “surfactants, friction reducers, and repellents of water, dirt, and oil.”⁸⁵ Accordingly, because of these properties they are used in a variety of products “to confer nonstick (waterproof, greaseproof, and stainproof) and low-friction properties.”⁸⁶ PFAS are used in “carpets, glass, paper, clothing and other textiles, plastic articles, cookware, food packaging, electronics, and personal care products.”⁸⁷ They are also used in industrial applications, including “metal coatings, lubricants for machinery, membranes, and firefighting foams.”⁸⁸ PFAS are additionally used in fertilizers, medical procedures and products, and other applications.⁸⁹ Thus, PFAS are everywhere.

PFAS do not break down in the environment or in human bodies, and when they do break down, they do so extremely slowly under natural conditions.⁹⁰ The ability of PFAS to “remain intact . . . means that over time PFAS levels from past and current uses can result in increasing levels of . . . contamination.”⁹¹ In addition, PFAS can be “highly mobile” in air and water, which allows them to travel long distances.⁹² Importantly, “[a]ccumulation of certain PFAS has been shown through blood tests to occur in humans and animals.”⁹³ In fact:

[H]uman exposure to PFAS can occur throughout the life cycles of these chemicals and products containing them, including during chemical production, product manufacturing, distribution, use, disposal, and recycling. Many PFAS, particularly PFAA, have been detected globally and are in the bodies of nearly all people living in the United States (US), Europe, and other countries world-wide. Major sources of human exposure to PFAS are from contaminated food, water, air, and other media such as consumer products and house dust.⁹⁴

PFAS were first detected in human blood in 1976, and in 1997 PFOS was discovered in blood samples worldwide.⁹⁵ Epidemiological studies found that PFAS may lead to high cholesterol, increased liver enzymes, decreased vaccination response in children, thyroid disorders, hypertension and preeclampsia during pregnancy, and cancer (mainly testicular and kidney).⁹⁶ PFAS tend to target the liver, kidneys, and blood.⁹⁷ Further, because they can travel through the placenta and breast milk, PFAS have been detected in the blood of infants and young children.⁹⁸ This means that “newborns can get a double dose of PFAS, first in the womb and then when they nurse.”⁹⁹ In particular, PFAS exposure has shown to cause low birth weights for infants and decreased vaccine response or “reduced humoral immune response to routine childhood immunizations.”¹⁰⁰ It may also adversely affect brain development.¹⁰¹

For instance, Loreen Hacket lives with her daughter and grandchildren in Hoosick Falls, New York, where residents learned in 2016 that they had been drinking PFOA-contaminated water.¹⁰²  Unfortunately, Hacket’s daughter was pregnant during that time.¹⁰³ When their blood was tested, Hacket’s six-year-old grandson and four-year-old granddaughter had shockingly high PFOA levels, more than 50 times the national average, which was about two parts per billion for children and adults.¹⁰⁴ As a result, both of Hacket’s grandchildren suffer from PFOA-related illnesses.¹⁰⁵ Her grandson has bone problems linked to low birth weight and her granddaughter had two severe staph infections, which required massive doses of antibiotics.¹⁰⁶ These have been linked to PFOA exposure¹⁰⁷ since there is significant evidence that children who are exposed to PFAS have reduced immune responses and low birth weights.¹⁰⁸

As noted above, some companies have moved to produce short-chain PFAS as alternatives to long-chain PFAS. The U.S. National Toxicology Program has found that these short-chain compounds have also negatively affected rat livers and thyroid hormones.¹⁰⁹ However, these negative effects are seen only at higher concentrations of the short-chain version, which is thought to be due to the shorter half-lives of these short-chain compounds in rodents.¹¹⁰ Thus, more research will have to be conducted to understand the full effects of short-chain PFAS and human health.

The Contents of Maine’s Legislation

Maine became the first state in the United States and the first government in the world to ban the sale of products containing PFAS.¹¹¹ The law was sponsored by state House Representative Lori Gramlich.¹¹² In an interview with Reuters, Gramlich stated, “PFAS is at a crisis level here in Maine – it’s in the soil, groundwater and household items, and it is making people severely sick.”¹¹³ Accordingly, the law was enacted as an emergency measure; it only required two-thirds of the state’s House of Representatives members and Senate, and it did not require the governor’s signature.¹¹⁴ It passed with “121 state House lawmakers voting in favor and [2] casting votes against it while 28 were absent.”¹¹⁵ This law also had the support of many environmental and health advocacy groups such as Defend Our Health. Patrick MacRoy, who is the deputy director of Defend Our Health, said: “I am proud to see Maine taking action that will change the conversation on how PFAS are regulated, not only addressing the entire class, but creating the requirement to avoid these persistent and toxic chemicals wherever possible.”¹¹⁶ Sarah Doll, the national director of Safer States, a public health advocacy group, further stated, “[t]his policy sets a strong national precedent that sends a clear signal to the industry that we need to move quickly toward safer chemistry and away from toxic chemicals like PFAS.”¹¹⁷

Maine’s law consists of three main requirements: (1) manufacturers of a product with intentionally added PFAS must submit a written notification to the Department of Environmental Protection (Department);¹¹⁸ (2) starting in 2023, a person may not sell or distribute carpets, rugs, or fabric treatments containing PFAS;¹¹⁹ and (3) starting in 2030, there is a general prohibition on selling any product with PFAS.¹²⁰

First, and most importantly, the law sets out to define crucial terms. The terms below are most important because they help define the scope and limitations of this law. Subsection 1614(1) states:

B. “Currently unavoidable use” means a use of PFAS that the [D]epartment has determined by the rule under this section to be essential for health, safety or the functioning of society and for which alternatives are not reasonably available.¹²¹

D. “Intentionally added PFAS” means PFAS added to a product or one of its product components to provide a specific characteristic, appearance or quality or to perform a specific function. “Intentionally added PFAS” also includes any degradation byproducts of PFAS.¹²²

E. “Manufacturer” means the person that manufactures a product or whose brand name is affixed to the product. In the case of a product imported into the United States, “manufacturer” includes the importer or first domestic distributor of the product if the person that manufactured or assembled the product or whose brand name is affixed to the product does not have a presence in the United States.¹²³

F. “Perfluoroalkyl and polyfluoroalkyl substances” or “PFAS” means substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.¹²⁴

These definitions indicate the scope of the statutory scheme. For example, manufacturers are limited to state manufacturers; thus, manufacturers outside Maine’s borders, including foreign manufacturers, will not have to comply with this law.¹²⁵ Further, because this is a state law, products that are governed by federal law are exempt from this law because federal law preempts state law.¹²⁶ However, it is also broad in scope. Under this subsection, Maine seeks to regulate all PFAS because the law does not distinguish between short-chain PFAS and long-chain PFAS. Thus, these definitions make the statute extremely expansive because it seeks to regulate over 4,000 compounds in the exact same manner.

Next, under subsection 1614(2)(A), a manufacturer of a product for sale in Maine that contains intentionally added PFAS shall: 

submit to the [Department of Environmental Protection] a written notification that includes (1) a brief description of the product; (2) the purpose for which PFAS are used in the product, including in any product components; (3) the amount of each of the PFAS, identified by its chemical abstracts service registry number, in the product, reported as an exact quantity determined using commercially available analytical methods or as falling within a range approved for reporting purposes by the department; . . . and (5) any additional information established by the department by rule as necessary to implement the requirements of this section.¹²⁷

This section goes into effect on January 1, 2023.¹²⁸ The section allows manufacturers to supply the information for a category or type of product, rather than individual products.¹²⁹ Importantly, manufacturers must update these notifications whenever requested by the Department or there is a “significant” change.¹³⁰

Subsection 1416(5) governs the sale of products containing intentionally added PFAS.¹³¹ Effective January 1, 2023, it prohibits the sale and distribution of carpets, rugs, and fabric treatments that contain “intentionally added PFAS.”¹³² Yet, this “prohibition does not apply to the sale or resale of a used” carpet, rug, or fabric treatment.¹³³

Further, under this subsection the legislature gave the Department the discretion to identify products that should not be sold. It states:

The [D]epartment may by rule identify products by category or use that may not be sold, offered for sale or distributed for sale in this State if they contain intentionally added PFAS. The department shall prioritize the prohibition of the sale of product categories that, in the department’s judgment, are most likely to cause contamination of the State’s land or water resources if they contain intentionally added PFAS.¹³⁴

Notably, products may be exempt by the Department if a product’s use is currently unavoidable, and the Department cannot prohibit the sale or resale of used products.¹³⁵

One of the most cutting-edge aspects of this statute is the broad prohibition on all products that contain intentionally added PFAS by January 1, 2030. “[A] person may not sell, offer for sale or distribute for sale in this State any product that contains intentionally added PFAS, unless the [D]epartment has determined by rule that the use of PFAS in the product is a currently unavoidable use.”¹³⁶

There are a few aspects of this law that are worth mentioning. Maine’s statute gives the Department some discretion on how it implements this law. First, the Department can waive the notification requirement if the “department determines that substantially equivalent information is already publicly available.”¹³⁷ The Department can also enter into agreements to collect notifications and can extend deadlines for submissions.¹³⁸ The Department has rulemaking authority to establish and assess fees payable by manufacturers to cover the reasonable costs of administering the requirements of the law, which does not seem similar to a noncompliance fine.¹³⁹ Lastly, Maine’s statute has a provision that creates the PFAS Source Reduction Program.¹⁴⁰ The program allows the Department to develop and implement efforts to “reduce the presence of PFAS in discharges to air, water and land by encouraging the use of safer alternatives and the proper management of materials containing PFAS,” as long as there are funds and relevant stakeholders are consulted.¹⁴¹ This program can include educational and informational efforts to industries and the general public about PFAS.¹⁴²

Overall, Maine’s statute is groundbreaking, and if anything, sends a message to other states that they should start legislating in this specific area.

Potential Issues with Maine's Law

General Issues with this “Type” of Legislation

Before tackling the specific issues with Maine’s statute, there are arguments against, and potential issues with, this “type” of state legislation generally. The federal government has failed to meaningfully legislate in this area, which has left states to clean up this mess, quite literally. However, the regulation of PFAS-containing products would best be left to the federal government. Although the TSCA failed, it would be worthwhile to pass a reform bill that is similar to Maine’s, but on a federal level.¹⁴³ There are three main reasons why the federal government is better suited to protect public health in relation to the regulation of PFAS: (1) federal legislation will apply to the whole nation and therefore can promote and protect the health of all citizens; (2) products are manufactured and traded across state and international borders, and Congress’s powers under the Commerce Clause can fully regulate this activity, which in turn makes the federal government better suited to protect public health;¹⁴⁴ and (3) the federal government may have better resources to fund and determine PFAS standards compared to individual states.

It would be ideal if Congress could phase out PFAS so no person is exposed to them. Theoretically, one of the main benefits of federal legislation in regulating PFAS is that everyone will be “treated” equally under the law; thus, their health will be protected equally. Furthermore, the federal government may not only be able to better fund research initiatives, which would lead to better standards and outcomes, but federal funding could also improve health equity. If funding is left to states, certain states may have more flexibility to fund research and local agencies than others. For example, New York has many policies regarding PFAS and public health, whereas Mississippi and Louisiana do not have any.¹⁴⁵ It could also be that certain states will prioritize PFAS regulation, whereas others will not. Thus, leaving the regulation of PFAS to states will lead to a wide disparity in regulations and in turn create health disparities across state borders.

Another major problem with state legislation is that regulating products generally encompasses trade across state and international borders. Manufacturers and distributors from other states and countries will have a hard time determining what standards to follow if states vary in how they treat PFAS-containing products. In fact, many manufacturers or distributors may determine that it is not worth the costs to change their products just to comply with one state’s regulations and laws. This will lead to confusion and noncompliance. Therefore, in order to standardize PFAS regulations, Congress could pass a statute pursuant to the Commerce Clause, which would cover interstate and international trade.¹⁴⁶

While state efforts and legislation are necessary, federal legislation “with teeth” might be more effective in promoting and protecting public health. Federal legislation has a broader reach nationally and internationally and would be more effective at standardizing PFAS regulation.

Issues that Could Arise in Maine

Although Maine’s statute seeks to protect the public from PFAS, there are potential issues with this specific piece of legislation. First, Maine’s statute only bans products with “intentionally added PFAS.”¹⁴⁷ While the statute defines “intentionally added PFAS,” the definition does not provide much practical guidance. According to Maine, intentionally added means PFAS that are added “to provide specific characteristics, appearance or quality or to perform a specific function.”¹⁴⁸ It will be hard to determine whether PFAS were intentionally added for those specific purposes and companies could lie.

Another major drawback of this definition is that it fails to acknowledge that many products do not have intentionally added PFAS. For example, it is well known that many paints contain PFAS because PFAS allow paints to have different finishes and be resistant to stains or water.¹⁴⁹ Hypothetically, a store in Maine paints vases using paint that contains PFAS.¹⁵⁰ Imagine the store had no purpose for using the PFAS-containing paint and the store had no knowledge that PFAS were in the paint, but the store used it simply because that paint was available. Based on these limited facts, it cannot be said that the PFAS were intentionally added to the vases; therefore, the store in Maine did not violate the statute. If the paint manufacturer was in Maine, under these facts, it could be in violation but only if one could prove that PFAS were added with the specific intents listed. Thus, even a manufacturer in Maine selling PFAS-containing paint can “get around” the statute.

To further complicate this example, if the paint manufacturer is located in France and there is an intermediary paint distributor, technically under the statute the distributor could be in violation of the statute based on the same analysis as above, but the manufacturer and store would absolutely not be violating the statute. And while this was not a complicated example, in reality the chain of commerce becomes extremely complicated. Thus, manufacturers, distributors, stores, and the public will generally be confused about who is subject to the statute, and it seems like companies can easily fall outside the statute. This would also lead to a lot of litigation because case-by-case analyses would be necessary to determine who is regulated by the statute.

This issue also raises fairness concerns. It does not seem fair that only certain people or entities will be held liable under the statute, whereas others will not be held accountable based on technicalities. Additionally, Maine’s statute does not seem to have any real enforcement mechanism for noncompliance, even with the notification requirement; thus, if companies violate the statute, it is unclear what the Department would do. Lastly, the “intentionally added” language does not protect public health. Using the hypothetical, the store that sold the vase that contains PFAS does not have to submit a written notification under subsection 1614(2) because the store did not “intentionally add PFAS.” Yet, one of the main benefits of the notification requirement is that the Department is on notice about what PFAS-containing products the public has access to. Thus, the “intentionally added” language seems to defeat the purpose of protecting public health.

Next, Maine provides exemptions for federally regulated products and for products where the use of PFAS is “currently unavoidable.” The definition of “currently unavoidable” is exceptionally broad. It is defined as “essential for health, safety or the functioning of society and for which alternatives are not reasonably available.”¹⁵¹ In order for this to make practical sense, words like “essential” and “functioning of society” should also be defined. It is unclear what is essential for the health and functioning of society because this is more of a subjective inquiry. Accordingly, this standard will mean different things to different people, which could lead to confusion and litigation.

Moreover, issues may arise regarding what is an “alternative that is reasonably available.”¹⁵² It is not clear what an alternative is. Is it a chemical that performs exactly the same way as PFAS, or can there be variability? Furthermore, PFAS are still extremely important in society. For example, 3M still uses PFAS. Its website states “these products have performance properties that are difficult to reproduce with alternative technologies.”¹⁵³ 3M lists important applications using PFAS, which include increasing energy efficiency using PFAS-containing fluids, decarbonized transportation using a special category of PFAS called fluoropolymers, and reducing greenhouse gas emissions.¹⁵⁴ 3M also uses PFAS in the medical industry.¹⁵⁵ For example, “surgical gowns and drapes use fluorinated polymers for their contamination-resistant properties;” PFAS can also be found in implantable medical devices that have to be durable and biocompatible so they do not have to be replaced often.¹⁵⁶ Therefore, it seems that PFAS are still extremely important not only in the production of products already on the market, but also as an important part of research and development that society depends on, specifically in the health field.¹⁵⁷ In fact, this is one of the main issues that the American Chemistry Council (ACC) has with the Maine statute. The ACC stated: “This misguided law will eventually ban thousands of products that Maine families and businesses rely on without providing meaningful impact on public health. It will impact every major industry in Maine, including rain forest products, healthcare, textiles, electronics, and construction.”¹⁵⁸ The ACC further explained that the statute “undermines effective product design, and in some cases, product safety and efficacy, including applications that are important for public safety and public health.”¹⁵⁹ Hence, PFAS still play an important role, but arguably there has to be a balance where there are efforts to meaningfully protect people’s health from PFAS. Finding alternatives will be extremely challenging and an ongoing process.

Another potential issue is the breadth of the law because it seeks to regulate and prohibit the entire class of PFAS, which includes over 4,000 compounds.¹⁶⁰ Although it may seem initially easier to regulate PFAS as a group, rather than the individual compounds, this broad ban fails to capture the nuances of chemistry. Each PFAS compound has a unique structure and composition, which will inherently change its chemical behavior. Also, it has been determined that some PFAS are not health risks. For instance, large polymer PFAS, such as PTFE, are usually considered too large to enter human cells, and  PTFE, in its solid form, is considered one of the most chemically inert materials so it will not react within the body.¹⁶¹  Further, it is unclear whether a broad ban on PFAS can be practically achieved because PFAS are still used, new ones are regularly introduced, and there are not many alternatives to PFAS.

Nevertheless, a broad ban on the production and use of all PFAS might be needed. Considering that PFAS do not degrade, or when they do, they do so extremely slowly, means that it might be necessary to halt the product and usage because once they are in the human body, they are there for good. It is also crucial to remember that just because there is a lack of evidence of toxicity does not mean that these compounds are safe.

The Recommended State Statute

Although it would be ideal for a federal statute to be enacted by Congress, as previously mentioned PFAS regulation has been largely left to the states. Accordingly, below is a recommended model state statute:¹⁶²

Section 1. Definitions. The following terms have the following meanings.

(a)   “Long-chain perfluoroalkyl and polyfluoroalkyl substances” or “long-chain PFAS” include compounds that have 6 or more carbons. This also includes any degradation byproducts of long-chain PFAS.

(b)   “Short-chain perfluoroalkyl and polyfluoroalkyl substances” or “short-chain PFAS” are compounds with less than 6 atoms for perfluorosulfonic acids and compounds with less than 7 atoms for perfluorocarboxylic acids.

(c)   “Manufacturer” means the person or company that manufactures a product or whose brand name is affixed to the product.

(d)   “Distributor” means the person or company that sells products in the State. This also includes products that are manufactured outside of the United States but the “distributor” is the domestic distributor.

(e)   “Currently unavoidable use” means that the Committee [as established in Section 3 below] has determined that the use of PFAS is essential for health, safety, or the functioning of society and for which there are no reasonable alternatives available.

Section 2. Notification. A manufacturer or a distributor of a product for sale in the State that contains long-chain PFAS or short-chain PFAS shall comply with the requirements of this subsection.

(a)   Beginning January 1, 2023, a manufacturer or a distributor of a product for sale in the State that contains long-chain PFAS or short-chain PFAS shall submit a notification to the Committee that includes:

(1)   A brief description of the product;

(2)   The purpose for which long-chain PFAS or short-chain PFAS are used in the product;

(3)   The amount of each of the long-chain PFAS or short-chain PFAS, identified by its chemical abstracts service registry number, in the product, and the methods used to determine the amount of PFAS in the product;

(4)   The procedures used for disposal of PFAS during the manufacturing of the product and any tracking information that is available;

(5)   Any health and environmental studies that have been conducted;

(6)   Name, address, and phone number of a contact person for the manufacturer or distributor; and

(7)   Any additional information the Committee deems necessary.  

(b)   The manufacturer or distributor must apply for permission to supply the information in part (a) for a category or type of product, rather than individual products.

(c)   The manufacturer or distributor must apply for extensions, which the Committee may grant, if the department determines that more time is necessary.

(d)   A manufacturer or a distributor must update and revise the notification when any information required in part (a) changes or when the Committee requests.

(e)   The Committee should not waive the requirement in part (a), even if the information is publicly available.

Section 3. Interagency Committee on PFAS Public Health and Environmental Safety. The Committee is established by this subsection and shall advise the Secretary of the Department of Environmental Protection and Secretary of the Department of Health and Human Services. This Committee shall:

(a)   Collect notification submissions and create a state-wide database that makes this information publicly available;

(b)   Have rulemaking authority to create rules that help implement this section, including the ability to levy penalties for noncompliance with sections 2, 4, and 5;

(c)   Collect, analyze, and make publicly available information, studies, and other data that relate to the effect of PFAS on human health and the environment;

(d)   Compile and make publicly available all state and local laws relating to PFAS; 

(e)   Invite and consult 6 “observer agencies” that have expertise in PFAS, public health, and environmental impacts; and

(f)    Establish and maintain liaisons with appropriate private entities and other State agencies regarding the effect of PFAS on human health and the environment.¹⁶³

Section 4. Prohibition of sale of products containing long-chain PFAS. This subsection governs sales of products containing long-chain PFAS.

(a)   Effective January 1, 2023, a person may not sell, offer for sale, or distribute for sale in this State a carpet, rug, or fabric treatment that contains long-chain PFAS. This prohibition applies to the sale or resale of used carpet, rug, or fabric treatment.

(b)   Effective January 1, 2030, a person may not sell, offer for sale, or distribute for sale in this State any product that contains long-chain PFAS, unless the department has determined by rule that the use of long-chain PFAS in the product is currently unavoidable.

(c)   If the Committee determines that it is currently unavoidable under part (b), the Committee and manufacturer or distributor must submit a report stating:

(1)   The reasoning behind finding the use of PFAS currently unavoidable; and

(2)   A plan for the manufacturer or distributor to submit or disclose health and environmental information concerning the continuing use of PFAS.

Section 5. Prohibition of sale of products containing short-chain PFAS. This section governs sales of products containing short-chain PFAS.

(a)   Effective January 1, 2030, a person may not sell, offer for sale, or distribute for sale in this State a carpet, rug, or fabric treatment that contains short-chain PFAS. This prohibition applies to the sale or resale of used carpet, rug, or fabric treatment.

(b)   Effective January 1, 2040, a person may not sell, offer for sale, or distribute for sale in this State any product that contains short-chain PFAS, unless the department has determined by rule that the use of short-chain PFAS in the product is currently unavoidable.

(c)   If the Committee determines that it is currently unavoidable under part (b), the Committee and manufacturer or distributor must submit a report stating:

(1)   The reasoning behind finding the use of PFAS currently unavoidable; and

(2)   A plan for the manufacturer or distributor to submit or disclose health and environmental information concerning the continuing use of PFAS.

The core goal of the recommended statute is public health. In order to guide manufacturers, distributors, state agencies, and the public, it is useful to have a more detailed and specific statute. One of the main issues with Maine’s law is that it provided extremely broad definitions. For example, it seeks to regulate the entire class of PFAS. Although banning PFAS seems like a necessary step to protect public health, it is not practical to completely prohibit all PFAS-containing products by 2030. Long-chain PFAS are known to be toxic, and thus, they should be phased out first.¹⁶⁴ Therefore, the recommended model statute distinguishes short-chain PFAS and long-chain PFAS in Section 1.

Notably, the recommended statute pursuant to Section 4 uses the same timeline for long-chain PFAS as the Maine statute. However, it is clear that more research needs to be conducted regarding short-chain PFAS.¹⁶⁵ Although some research has proven that short-chain PFAS may have the same toxicity as long-chain PFAS, research has also shown that larger concentrations of short-chain PFAS are necessary to obtain the same toxicity results.¹⁶⁶ Thus, the recommended statute proposes to phase out short-chain PFAS on a longer timeline under Section 5. This is in part because the industry seems to rely on these short-chain PFAS and currently there do not seem to be alternatives to them; consequently, under Maine’s statute they would be exempt from the ban. Therefore, within the decade more research should be done to determine the toxicity of short-chain PFAS and to find replacements for them. This timeframe will give the industry some time to adapt. Moreover, there are still notification requirements for companies that use PFAS. Therefore, the recommended statute ensures that the public is informed about what is on the market and in the environment, even if the use is currently unavoidable.

Furthermore, the recommended statute takes out the “intentionally added PFAS” language found in the Maine statute. This language is unnecessary and could undermine the statutory goal of prohibiting PFAS in order to protect public health. The recommended statute is not concerned with the intentions of the manufacturer or distributor, but whether there are PFAS in products. Further, not using the “intentionally added” language makes the overall statute clearer. Plainly, manufacturers or distributors will violate the recommended statute if they manufacture or distribute a product that contains long-chain PFAS and if they do not follow the notification requirements for all PFAS pursuant to Section 2.

Moreover, to become more aligned with the goal to protect and promote public health, the recommended statute under Section 2 has expanded the notification requirement to distributors and is more strict. Also, the notification requirement under the recommended law is electronic and not written to save the Committee created in Section 3, manufacturers, and distributors money and time. Under the recommended statute manufacturers and distributors must notify the Committee of any product that contains long-chain or short-chain PFAS. Thus, the notification is broad in scope to cover all PFAS. The recommended statute proposes this because it would be ideal to have a state-wide bank of every manufacturer and distributor that sells products containing PFAS. This is also why the Committee is directed not to waive the notification requirement. Manufacturers or distributors must provide a brief description of the product, the purpose of using PFAS, the amount of each PFAS, contact information, and any health studies that have been conducted. Disposal efforts and tracking information for chemicals must also be provided. Rigorous notification requirements will help the Committee alert public health officials and the public about products that pose potential health risks.

As noted above, Section 3 of the recommended model statute creates an Interagency Committee to keep track of the notifications and to create a state-wide database that the public will have access to. The Committee — a provision that is completely absent in Maine’s statute — facilitates research that needs to be done and through this research will be able to educate the public. Furthermore, the recommended statute gives the  Committee the power to penalize manufacturers or distributors that violate the statute. By giving the Committee the power to penalize manufacturers or distributors for noncompliance, it gives the statute more teeth because manufacturers and distributors may be more compliant with the notification requirement if they want to avoid being fined. Furthermore, the Committee is given rulemaking authority so that it can adapt to practical concerns as the statute goes into effect so that it can better implement the statute. Sections 4 and 5 set out the prohibition of long-chain and short-chain PFAS respectively.

Overall, the recommended model statute seeks to balance the need to phase out PFAS while trying to resolve the practical issues seen in Maine’s statute.

Conclusion

Widespread legislation that protects the public’s health against PFAS is needed throughout the country. Although the federal government seems better equipped to pass federal legislation that prohibits the sale of PFAS-containing products in interstate and international trade, it is clear that at present states must take legal action to protect the health of their citizens. While Maine’s statute is groundbreaking, there are many issues with its broad ban prohibition on PFAS-containing products. The recommended model statute seeks to protect public health while giving the industry reasonable time to adapt to the law’s requirements. However, at minimum, states should start to phase-out long-chain PFAS-containing products to protect people’s health.

Endnotes

1. Rappleye, H., et al., A ‘Forever Chemical’ Contaminates Drinking Water Near Military Bases, NBC News (Dec. 16, 2019), https://www.nbcnews.com/health/cancer/forever-chemical-poisons-drinking-water-near-military-bases-n1101736 (quoting Joanne Staton).
2.  Id.
3.  Id.
4.  Id.
5.  Id.
6.  Id.
7.  Per- and Polyfluorinated Substances (PFAS), CDC, https://www.cdc.gov/biomonitoring/PFAS_FactSheet.html (last visited May 14, 2022); Perkins, infra. n. 8; Moran, B., What are PFAS Chemicals, And Should I Be Freaking Out About Them?, wbur (Nov. 8, 2019), https://www.wbur.org/news/2019/11/08/what-are-pfas-chemicals-and-should-i-be-freaking-out-about-them.
8.  Perkins, T., Maine Bans Toxic ‘Forever Chemicals’ Under Groundbreaking New Law, The Guardian (July 15, 2021), https://www.theguardian.com/us-news/2021/jul/15/maine-law-pfas-forever-chemicals-ban.
9.  Perkins, supra n. 8.
   
10.  Id.
11.  Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS), NIEHS, https://www.niehs.nih.gov/health/topics/agents/pfc/index.cfm  (last updated May 16, 2022). Lewis, R., et al., Serum Biomarkers of Exposure to Perfluoroalkyl Substances in Relation to Serum Testosterone and Measures of Thyroid Function Among Adults and Adolescents from NHANES 2011-2012, 12 Int’l J. Env’t Rsch. & Pub. Health 6098, 6103 (2015).
12.  Perkins, supra n. 8.
13.  Me. Rev. Stat. tit. 38, § 1614 (2021).
14.  Id. § 1614(2).
15.  Id. § 1614(5)(A)-(B).
16.  Id. § 1614(5)(D). However, it should be noted that there is an exception to this overall ban on PFAS-containing products. Maine’s Department of Environmental Protection can specify by rule that the use of PFAS is “currently unavoidable.” See id.
17.  Id.
18.  Id. (emphasis added).
19.  Sunderland, E., et al., A Review of the Pathways of Human Exposure to Poly- and Perfluoroalkyl Substances (PFASs) and Present Understanding of Health Effects, 29 J. Exposure Sci. & Env’t Epidemiology 131, 131 (2019). See also Per- and Polyfluoroalkyl Substances (PFAS), FDA, https://www.fda.gov/food/chemical-contaminants-food/and-polyfluoroalkyl-substances-pfas (last visited May 16, 2022).
20.  Kwiatkowski, C., et al., Scientific Basis for Managing PFAS as a Chemical Class, 7 Env’t Sci. Tech. Letter 532, 532 (2020).
21.  Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS), NIEHS, supra n. 11.
22.  Blake, B. & Fenton, S., Early Life Exposure to Per- and Polyfluoroalkyl Substances (PFAS) and Latent Health Outcomes: A Review Including the Placenta as a Target Tissue and Possible Driver of Peri- and Postnatal Effects, 443 Toxicology 1, 1 (2020).
23.  Id.
24.  Id.
25.  Id.
26.  Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS), NIEHS, supra n. 11.
    
27.  Id.
28.  Id.
29.  The Science, Types of PFAS, PFASfree, https://www.pfasfree.org.uk/about-pfas/pfas-science-the-basics (last visited May 14, 2022).
30.  Id.
31.  Id.
32.  Id.
33.  Id.
34.  See Hogue, C., Short-chain and Long-chain PFAS Show Similar Toxicity, US National Toxicology Program Says, C&EN (Aug. 24, 2019), https://cen.acs.org/environment/persistent-pollutants/Short-chain-long-chain-PFAS/97/i33.
35.  Id.
36.  Id.
37.  Zanolli, L., Why You Need to Know About PFAS, the Chemicals in Pizza Boxes and Rainwear, The Guardian (May 23, 2019), https://www.theguardian.com/us-news/2019/may/23/pfas-everyday-products-toxics-guide.
38.  Hogue, supra n. 34.
39.  See infra Part I.
40.  Van Hamme, J., A Blanket Ban on Toxic “Forever Chemicals” is Good for People and Animals, The Conversation (Feb. 6, 2020), https://theconversation.com/a-blanket-ban-on-toxic-forever-chemicals-is-good-for-people-and-animals-127879.
41.  Id.
42.  Id.
43.  McDonald, F.A., Omnipresent Chemicals: TSCA Preemption in the Wake of PFAS Contamination, 37 Pace Env’t L. Rev. 139, 145 (2019).
44.  PFAS History, 3M, https://www.3m.com/3M/en_US/pfas-stewardship-us/pfas-history/ (last visited Nov. 26, 2021).
45.  Id.
46.  For Decades, Polluters Knew PFAS Chemicals Were Dangerous But Hid Risks From Public, EWG, https://www.ewg.org/pfastimeline/ (last visited Nov. 23, 2021).
47.  Id.; Lerner, S., 3M Knew About the Dangers of PFOA and PFOS Decades Ago, Internal Documents Show, The Intercept (July 21, 2018, 12:23 PM), https://theintercept.com/2018/07/31/3m-pfas-minnesota-pfoa-pfos/.
48.  Lerner, supra n. 47.
49.  Id.; For Decades, Polluters Knew PFAS Chemicals Were Dangerous But Hid Risks From Public, supra n. 46.
50.  Id.
51.  Id.
52.  Gross, L., These Everyday Toxins May Be Hurting Pregnant Women and Their Babies, N.Y. Times (Sept. 20, 2020), https://www.nytimes.com/2020/09/23/parenting/pregnancy/pfas-toxins-chemicals.html#:~:text=In%201981%20DuPont% 20scientists%20analyzed,did%20not%20publish%20the%20finding.
53.  Id.
54.  Rich, N., The Lawyer Who Became DuPont’s Worst Nightmare, N.Y. Times (Jan. 6, 2016), https://www.nytimes.com/2016/01/10/magazine/the-lawyer-who-became-duponts-worst-nightmare.html?searchResultPosition=1.
55.  Id.
56.  EPA, Technical Fact Sheet – Perfluorooctane Sulfonate (PFOS) and Perfluorooctanoic Acid (PFOA) 2 (Nov. 2017), https://www.epa.gov/sites/default/files/2017-12/documents/ffrrofactsheet_contaminants_pfos_pfoa_11-20-17_508_0.pdf.
57.  Id.
58.  Id.
59.  McDonald, supra n. 43, at 149.
60.  Id.
61.  Andrews, D., &Walker, B., Env’t Working Group, Poisoned Legacy: Ten Years Later, Chemical Safety and Justice for DuPont’s Teflon Victims Remain Elusive 4 (2015).
62.  McDonald, supra n. 43, at 149-50.
63.  Id.; Andrews & Walker, supra n. 61, at 4.
64.  Andrews & Walker, supra n. 61, at 4-5.
65.  Id. at 3.
66.  Id. Not surprisingly, DuPont did not admit guilt but promised to phase out the chemical. Id.
67.  EPA, Fact Sheet: PFOA & PFOS Drinking Water Health Advisories 2 (2016), https://www.epa.gov/sites/default/files/2016-06/documents/drinkingwaterhealthadvisories _pfoa_pfos_updated_5.31.16.pdf.
68.  EPA, EPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (2019), https://www.epa.gov/ sites/default/files/2019-02/documents/pfas_action_plan_021319_508compliant_1.pdf.
69.  Id. at 2.
70.  Id.
71.  PFAS Pollution, The White House (Oct. 18, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/18/fact-sheet-biden-harris-administration-launches-plan-to-combat-pfas-pollution/.
72.  Id.
73.  Marohn, K., 3M v. Minnesota: A Primer for this Major Water Pollution Trial, MPRnews (Feb. 20, 2018, 10:00 AM), https://www.mprnews.org/story/2018/02/20/3m-vs-minnesota-water-pollution-pfc-chemical-trial-primer. More specifically, the state is alleging that 3M willfully disregarded the potential harm of PFCs on citizens. Id.
74.  Bjorhus, J., State finalizes payouts from Minnesota's $850 million 'forever chemicals' settlement with 3M, StarTribune (Aug. 18, 2021, 5:53 PM), https://www.startribune.com/state-finalizes-payouts-from-minnesota-s-850-million-forever-chemicals-settlement-with-3m/600089057/.
75.  Id.
76.  Forever Litigated “Forever Chemicals”: A Guide to PFAS in Courts, Bloomberg Law (Jan. 13, 2020, 6:01 AM), https://news.bloomberglaw.com/environment-and-energy/forever-litigated-forever-chemicals-a-guide-to-pfas-in-courts.
77.  See Clukey, K., USA: New York State Sues Chemours, Dupont, 3M for Alleged Contamination of Drinking Water by Toxic Substances, Bus. & Hum. Rts. Res. Ctr. (Nov. 28, 2019), https://www.business-humanrights.org/en/latest-news/usa-new-york-state-sues-chemours-dupont-3m-for-alleged-contamination-of-drinking-water-by-toxic-substances/. There have been lawsuits filed by New York Water Authorities as well as people from towns throughout New York State. See Malo, S., Water Authorities in New York sue 3M, DuPont, Chemours over PFAS, Reuters (Nov. 26, 2019), https://www.reuters.com/article/usa-lawsuit-environment/water-authorities-in-new-york-sue-3m-dupont-chemours-over-pfas-idUSL1N286091; Gribbin, S., Long Island Town Sues 3M, DuPont, Chemours Alleging PFAS Water Contamination, wshu (Mar. 8, 2021), https://www.wshu.org/news/2021-03-08/long-island-town-sues-3m-dupont-chemours-alleging-pfas-water-contamination.
78.  Hildreth, K. & Oren, S., State and Federal Efforts to Address PFAS Contamination, NCSL (Mar. 19, 2021), https://www.ncsl.org/research/environment-and-natural-resources/state-and-federal-efforts-to-address-pfas-contamination.aspx.
79.  2021 Analysis of Upcoming State Legislation on Toxic Chemicals, Safer States (Feb. 3, 2021), https://www.saferstates.org/news/2021-analysis-of-upcoming-state-legislation-on-toxic-chemicals/; Dozens of States Seek to Regulate PFAS, Other Chemicals in 2022, Bloomberg Law (Feb. 3, 2022), https://news.bloomberglaw.com/environment-and-energy/dozens-of-states-seek-to-regulate-pfas-other-chemicals-in-2022. In 2022, Safer States predicts that at least 210 policies will be considered by states and that regulating PFAS is one of the most relevant issues. 2022 Analysis of State Legislation on PFAS and other Toxic Chemicals, Safer States (Feb. 3, 2022), https://saferstates.org/news/new-analysis-2022/.
80.  Hildreth & Oren, supra n. 78.
81.  Senate Bill S4011, The New York State Senate, https://www.nysenate.gov/legislation/bills/2021/S4011 (last visited May 16, 2022).
82.  Senate Bill 111, Wisconsin State Legislature, https://docs.legis.wisconsin.gov/2021/proposals/reg/sen/bill/sb111 (last updated Mar. 15, 2022).
83.  Id.
84.  Id.
85.  Kwiatkowski et al., supra n. 20, at 532.
86.  Id.
87.  Id.
88.  Id.
89.  Id.
90.  Id.
91.  Per- and Polyfluoroalkyl Substances (PFAS), FDA, supra n. 19.
92.  Kwiatkowski et al., supra n. 20, at 533.
93.  Per- and Polyfluoroalkyl Substances (PFAS), FDA, supra n. 19.
94.  Kwiatkowski et al., supra n. 20, at 533.
95.  Andrews & Walker, supra n. 61, at 6, 8.
96.  Per- and Polyfluoroalkyl Substances (PFAS) and Your Health, What are the Health Effects of PFAS?, ATSDR, https://www.atsdr.cdc.gov/pfas/health-effects/index.html (last visited May 16, 2022).
97.  Van Hamme, supra n. 40
98.  Id.; Gross, supra n. 52.
99.  Gross, supra n. 52.
100.  Grandjean, P., et al., Serum Vaccine Antibody Concentrations in Children Exposed to Perfluorinated Compounds, 307 J. Am. Med. Ass’n 391, 391 (2012).
101.  Jiwon Oh, et al., Prenatal Exposure to Per- and Polyfluoroalkyl Substances in Association with Autism Spectrum Disorder in the MARBLES Study, 147 Env’t Int’l 1, 4 (2021).
102.  Gross, supra n. 52.
103.  Id.
104.  Id.
105.  Id.
106.  Id.
107.  Id.
108.  Sunderland et al., supra n. 19, at 138.
109.  Hogue, supra n. 34. Per- and Polyfluoroalkyl Substances (PFAS), National Toxicology Program, U.S. Dep’t of Health & Hum. Servs., https://ntp.niehs.nih.gov/whatwestudy/topics/pfas/index.html (last visited May 16, 2022). The U.S. National Toxicology Program is a program within the Department of Health and Human Services that researches toxic substances and evaluates their effects on human health. About NTP, Nat’l Toxicology Program, U.S. Dep’t of Health & Hum. Servs., https://ntp.niehs.nih.gov/whoweare/about/index.html (last visited May 17, 2022).
110.  Id.
111.  Me. Rev. Stat. tit. 38, § 1614 (2021). Maine is actually the “first government in the world” to ban products containing PFAS. Hogue, C., World’s First Ban on Products with PFAS Adopted in Maine, c&en (July 19, 2021), https://cen.acs.org/environment/persistent-pollutants/Worlds-first-ban-products-PFAS/99/web/2021/07.
112.  Malo, S., Maine Outlaws PFAS in Products with Pioneering Law, Reuters (July 16, 2021, 8:25 PM), https://www.reuters.com/legal/litigation/maine-outlaws-pfas-products-with-pioneering-law-2021-07-16/.
113.  Id.
114.  Id.
115.  Id.
116.  McGuire, J., Maine Leads US in Becoming First State to Ban ‘Forever Chemicals’ in Products, Common Dreams (July 16, 2021), https://www.commondreams.org/news/2021/07/16/maine-leads-us-becoming-first-state-ban-forever-chemicals-products.
117.  Id.
118.  Me. Rev. Stat. tit. 38, § 1614(2) (2021).
119.  Id. § 1614(5)
120.  Id. § 1614(5)(D).
121.  Id. § 1614(1)(B)
122.  Id. § 1614(1)(D).
123.  Id. § 1614(1)(E).
124.  Id. § 1614(1)(F).
125.  See id. § 1614(1)(E).
126.  Id. § 1614(3).
127.  Id. § 1614(2)(A).
128.  Id.
129.  Id. § 1614(2)(B).
130.  Id. § 1614(2)(C).
131.  Id. § 1614(5).
132.  Id. § 1614(5)(A)-(B).
133.  Id.
134.  Id. § 1614(5)(C).
135.  Id.
136.  Id. § 1614(5)(D).
137.  Id. § 1614(3)
138.  Id.
139.  Id. § 1614(6).
140.  Id. § 1614(9).
141.  Id.
142.  Id.
143.  See supra Part I.
144.  U.S. Const. art. I, § 8, cl. 3. The Commerce Clause gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Id.
145.  Safer States, https://www.saferstates.org/bill-tracker/ (last visited May 16, 2022).
146.  U.S. Const. art. I, § 8, cl. 3. The author also questions whether Congress could use its power to tax and spend for the general welfare. U.S. Const. art. I, § 8, cl. 1.
147.  Me. Rev. Stat. tit. 38, § 1614 (2021).
148.  Id. § 1614(1)(D).
149.  Rojello, A., et al., Green Science Policy Institute, Building a Better World: Eliminating Unnecessary PFAS in Building Materials 17-18, https://greensciencepolicy.org/docs/pfas-building-materials-2021.pdf (last visited May 16, 2022).
150.  For a similar hypothetical on the issues with the “intentionally added” language, see Gardella, J., Maine PFAS Products Bill Most Far-Reaching to Date, 12 Nat’l L. Rev. (Aug. 13, 2021), https://www.natlawreview.com/article/maine-pfas-products-bill-most-far-reaching-to-date.
151.  Me. Rev. Stat. tit. 38, § 1614(1)(B).
152.  Id.
153.  3M’s Commitment to PFAS Stewardship, PFAS in Business and Industry, 3M, https://www.3m.com/3M/en_US/pfas-stewardship-us/pfas-in-business-and-industry/ (last visited May 16, 2022).
154.  Id.
155.  PFAS in the Medical Industry, 3M (Feb. 1, 2019), https://news.3m.com/PFAS-in-the-Medical-Industry.
156.  Id.
157.  See 3M’s Commitment to PFAS Stewardship, 3M, https://www.3m.com/3M/en_US/pfas-stewardship-us/ (last visited May 16, 2022).
158.  Hogue, supra n. 111 (emphasis added).
159.  Id. (emphasis added).
160.  Me. Rev. Stat. tit. 38, § 1614(1)(F) (2021).
161.  The Science, PFASfree, https://www.pfasfree.org.uk/about-pfas/pfas-science-the-basics (last visited May 16, 2022). Although there has been some debate about PTFE and its health risks. apparently PTFE starts to break down at extremely high temperatures, at which it then becomes toxic. Id. For a short discussion on the large molecular size of PTFE and cell transport, see PTFE Facts, Gore, https://www.goretexprofessional.com/sites/default/files/research_insights/Gore%20PTFE%20Facts%20Aug%202021.pdf (last visited May 16, 2022).
162.  Notably, there are some aspects of the Maine statute that the author would not change. Thus those provisions are excluded from the proposed model statute. For example, it does not include the definition of a carpet, fabric treatment, or a product. Further, the author agrees with exemption based on federally regulated products, the Department being able to levy fees to cover the Department’s costs in developing the rules, and the failure to provide notice. See Me. Rev. Stat. tit. 38 § 1614 (2021).
163.  Interagency Committee on Smoking and Health, CDC, https://www.cdc.gov/tobacco/about/icsh/index.htm? CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Ftobacco%2Fabout%2Ficsh%2Foverview%2Findex.htm (last visited May 16, 2022).
164.  Hogue, supra n. 34.
165.  Id.
166.  Id.