/>iOn August 21, 2025, the Maine Board of Environmental Protection held its public hearing on its first wave of currently unavoidable use (CUU) determinations under Maine’s PFAS in products law, 38 M.R.S. § 1614, which prohibits the sale of consumer products containing intentionally added PFAS.
Background
Currently, three states (Maine, Minnesota, and New Mexico) have laws prohibiting the sale of all consumer products made with intentionally added per- and polyfluoroalkyl substances (PFAS). These prohibitions go further than those in other states such as California, Colorado, New York, Rhode Island, and Vermont, which ban only select categories of products. The respective statutes in each of these three states will eventually impose a prohibition that applies to all consumer products unless a product falls into a set of exemptions or the state regulating agency determines that the use of PFAS in that product is a CUU.[1]
Maine is the first state to propose CUU determinations. In Maine, a CUU 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.
Scope of the Proposed CUU Determinations
Maine’s statute prohibits the sale of consumer products containing intentionally added PFAS. These prohibitions will come in waves, with new groups of products being added every three years until the sale of all consumer products containing intentionally added PFAS is prohibited on January 1, 2032. For instance, cleaning products, cosmetic products, menstruation products, cookware, juvenile products, textile articles, dental floss, ski wax, and upholstered furniture are added to the list starting January 1, 2026.
On April 7, 2025, Maine DEP adopted regulations implementing the state’s PFAS in products law. Those regulations required companies to submit CUU proposals by June 1, 2025, for products subject to the law’s 2026 prohibition. Per the regulation, CUU proposals for products subject to the 2029 prohibition can be submitted from now until July 1 2027 and proposals for products subject to the 2032 prohibition can be submitted starting January 1, 2027, and will be due July 1, 2030.
In a July 17, 2025, staff memo, Maine DEP explained that it had received eleven CUU proposals for products subject to the 2026 prohibition. These proposals covered the following product categories: cookware products (five proposals), cleaning products (four proposals), a cosmetic product container (one proposal), and upholstered furniture (one proposal). At that time, Maine DEP proposed approving only two of those CUU proposals, those for vented cap liners on cleaning product containers and internal cartridge valve in liquid cleaner containers.
In the staff memo, Maine DEP provided brief explanations for its decisions. It reasoned that the CUU determinations for the two specific cleaning product containers were warranted due to the “vital role” the PFAS components serve for the products in order to function safely in combination with the lack of alternatives; however, no discussion was had related to the potential for disruption of the daily functions on which society relies due to such products being removed from the market. Conversely, Maine DEP found that there was insufficient evidence to indicate that the other nine proposed uses of PFAS were essential for health, safety, or the functioning of society and that alternatives were not reasonably available.
The Hearing
The Maine Board of Environmental Protection heard from four representatives of regulated industry groups and one representative of an Environmental Group.
Two of the industry groups were advocating for Maine DEP to reevaluate its proposed determination that PTFE coatings[2] did not warrant a CUU determination. Their arguments focused on claims that PTFE coatings allowed for cooking without fats, which prevented fires and was healthier. They further claimed that ceramic alternatives were more expensive and had shorter lifespans, leading to undue expenses for residents and increases in waste production. Additionally, they argued that research shows PTFE is not dangerous for human health or the environment as it is inert, nonmobile, non-water soluble, non-bio-accumulable, and too large to pass through many membranes. Finally, they argued that DEP should give greater weight to the fact that there is a massive demand for nonstick cookware because it is convenient and saves time.
A representative for the American Coatings Association addressed his general concerns with the statute and its underlying regulations. First, he argued that the CUU application process needed to come more in line with EPA procedures under TSCA. He noted that the use of more general terms and descriptions should be permitted, as currently CUU applications can be deemed deficient due to a lack of data, and overcoming this hurdle often requires the disclosure of confidential information and trade secrets. Second, he argued that existing stocks of products should be able to be sold after the date sales of that product would be prohibited by the statute. Meaning, a product manufactured prior to its respective January 1 date could still be sold, and only products manufactured after the applicable January 1 were prohibited from sale. Third, he argued that the methods used to measure PFAS in products needed to be modified for certain types of products.
A representative for the Complex Manufacturers Coalition also expressed concerns with the CUU determination process. One of those being that the lack of whole product determinations potentially leading to a need to obtain CUU determination for each component that contains PFAS. He also expressed the need for longer application periods, and longer-lasting determinations of five to ten years. His fear being that without these changes, there would be a flood of CUU applications, which would create a bottleneck for both DEP and industry.
The environmental group, Defend Our Health, argued that no further CUU determinations should be considered, as Minnesota had enacted similar prohibitions on sales beginning on January 1, 2025, without negative societal impacts; that non-industry scientists did not agree with the claims regarding the safety of PTFE; and that more detailed explanations were needed of DEP determinations, so that it in turn could provide more detailed comments.
Throughout the hearing the Board requested more data from the industry groups and others in their forthcoming comments. It appeared sympathetic to arguments concerning the desire that additional detail and data is used in making and explaining DEP’s determinations.
Effects and Takeaways
The handling of this first set of CUU determinations will shed light on the process Maine will use to assess CUU proposals for other products in the future. Other states will also likely look at this process as precedent for how to assess future CUU proposals or similar exemptions in their own states, especially with regard to the level of data and specificity required for successful CUU applications.
Therefore, every stakeholder with an interest in these prohibitions and the CUU process should consider engaging in the current Maine CUU action, including by asking Maine DEP to provide more information about the criteria and rationale that the Department applied in rejecting the nine other applications. Public comments on this wave of CUU determinations are due September 2, 2025.
For assistance with government relations or environmental matters, feel free to contact CMBG3 Law and our environmental team. Our team is ready to provide guidance on regulatory issues, policy changes, and compliance concerns.
[1] Maine and New Mexico only, Minnesota does not allow for CUUs.
[2] Commonly known as Teflon, PTFE coatings are PFAS coatings used on the surfaces of many nonstick pots, pans, and other cookware.
