Three U.S. states – Maine, Minnesota, and New Mexico – have laws restricting intentionally added per- and polyfluoroalkyl substances (PFAS) in all products under various compliance deadlines. In each of these laws, the restriction applies unless the product is exempt or the relevant regulator determines that the use of PFAS in a product is a currently unavoidable use (CUU). Maine is now the first of these states to propose CUU designations, which are for two cleaning products that would otherwise be subject to an upcoming 2026 restriction on intentionally added PFAS in such products. Relatedly, and perhaps more importantly, the Maine regulator rejected nine other CUU proposals; those rejections are summarily described in a publicly available memorandum, though the current rulemaking seems to focus on approving the two CUU proposals for cleaning products.
Public comments on the two proposed CUU designations are due September 2, 2025. Even though the proposed designations would only be for two cleaning products, these actions help set the stage for the process Maine may use to assess CUU proposals for other products in the future. Likewise, regulators in Minnesota and New Mexico will likely look at this Maine action as precedent for how to evaluate future CUU proposals in those states. Therefore, all stakeholders with an interest in the CUU determination process should consider engaging in the current Maine CUU action.
Background
Maine’s PFAS in products law, 38 M.R.S. § 1614, restricts the sale of all products containing intentionally added PFAS under various compliance deadlines. For instance, specified categories of consumer products (e.g., cleaning products, cookware, juvenile products, textile articles) are restricted starting January 1, 2026, while most other products are restricted starting January 1, 2032. This restriction applies unless the product is exempt or if the Maine Department of Environmental Protection (DEP) determines that the use of PFAS in a product is a CUU. “Currently unavoidable use” is defined in the statute as a use of PFAS that is essential for health, safety, or the functioning of society and for which alternatives are not reasonably available. Such CUU determinations in Maine’s law operate for five years, and companies with products subject to CUU determinations must report these products to Maine DEP.
In April 2025, Maine DEP finalized a regulation implementing the state’s PFAS in products law. That regulation required companies to submit CUU proposals by June 1, 2025, for products subject to the law’s 2026 prohibition. The current action relates to Maine DEP’s proposed decisions on those CUU proposals under the 2026 restriction. Per the regulation, CUU proposals for products subject to the 2032 prohibition can be submitted starting January 1, 2027, and will be due July 1, 2030.
Scope of Maine’s Proposed CUU Determinations
As explained in a July 17, 2025 Maine DEP staff memo, the Department received eleven CUU proposals for products subject to the 2026 prohibition. These proposals covered the following product categories: cookware products (five proposals), cleaning products (two proposals), a cosmetic product container (one proposal), and upholstered furniture (one proposal).
In the corresponding proposed amendments to Maine’s PFAS in products regulation, Maine DEP has proposed approval of only two of these eleven CUU proposals. These two CUUs would cover the following:
- The use of PFAS in a cleaning product container internal cartridge valve within the HTS classification 3926.90.4510, which are used in the industrial sector with the NAICS codes 561210 and 561720; and
- The use of PFAS in a cleaning product container vented cap liner within the HTS classification 3921.19.0000, 7607.20.5000, and 3923.50.0000, which are used in the industrial sector with the NAICS code 322299.
In Maine DEP’s staff memo mentioned above, the Department justified approval of these two CUU proposals due to the “vital role” the relevant component serves for the product to function safely.
In contrast, Maine DEP determined that there was a lack of evidence to demonstrate that the other nine uses of PFAS were essential for health, safety, or the functioning of society and that alternatives were not reasonably available. The staff memo provides no other meaningful information or explanation of why these other applications were deemed to fall short of the statutory standard.
Commentary
As mentioned above, this initial CUU determination action will set a de facto precedent not only for how Maine DEP will evaluate subsequent CUU proposals, but also for how regulators in Minnesota and New Mexico may implement the CUU determination process as provided in those states’ laws. In fact, the rulemaking fact sheet for Maine DEP’s current action states that the Department held discussions with the Minnesota Pollution Control Agency in evaluating these eleven CUU proposals. Accordingly, all stakeholders that may be impacted by the PFAS in products restrictions in these states should consider submitting public comments to Maine DEP by the September 2, 2025 deadline, including by asking Maine DEP to provide more information about the criteria and rationale that the Department applied in rejecting the nine other applications.
A public hearing on Maine DEP’s proposal will also be held on August 21, 2025. However, given that the rulemaking update webpage for this action only gives information on the two proposed CUU designations for cleaning products and does not link to the staff memo mentioned above, Maine DEP may intend for the hearing to only focus on the applications that the Department has proposed to approve.
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