Welcome to the Club: Formaldehyde and Phthalates Now Priority Chemicals

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.

By way of recap, in 2008, the Maine Legislature passed the Kids Safe Products Act (38 M.R.S.A. § 1692)(“Act”). The Act created three categories of chemicals: “Concern,” “High Concern,” and “Priority.” “Priority” chemicals trigger reporting requirements when they are intentionally added to “Children’s Products” at amounts greater than de minimus levels. The addition of formaldehyde and phthalates brings the list of Priority Chemicals up to a total of seven. The four phthalates being regulated are di(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), benzyl butyl phthalate (BBP), and diethyl phthalate (DEP).

Under the enabling statute, “Children’s Products” are defined as follows:

“Children’s Product” means a consumer product intended for, made for or marketed for use by children under 12 years of age, such as baby products, toys, car seats, personal care products and clothing, and any consumer product containing a chemical of high concern that when used or disposed of will likely result in a child under 12 years of age or a fetus being exposed to that chemical.

And the new rules further define categories of regulated products, such as clothing and footwear, craft supplies, cosmetic and personal care products, household and commercial cleaning products, school supplies, toys, games, etc.

In addition to other information, the rules require manufacturers and distributors to submit to the Department the amount of each chemical in a given product, the function of the chemical, and the number of units sold or distributed in Maine. Reporting forms can be found here: (formaldehyde and phthalates).

This blog will continue to monitor the shifting landscape of chemical laws at both the state and federal level. Stay tuned.