A Burger King Whopper in a wrapper, behind left, and a bag of Burger King cookies, left, rest next to a McDonald's Big Mac in a container, behind right, and a bag of McDonald's fries, in Walpole, Mass., Wednesday, April 20, 2022. Environmental and health groups are pushing dozens of fast food companies, supermarkets chains and other retail outlets to remove PFAS from their packaging. Credit: Steven Senne

Maine lawmakers in 2019 decided to ban certain toxic chemicals from packaging that touches food, such as burger wrappers, popcorn bags, pizza boxes and paper plates and bowls. A majority agreed that businesses could sell other types of paper materials that don’t contain so-called forever chemicals, to reduce the likelihood of contaminating the environment and drinking water when the packaging is composted or landfilled.

But three years later, the sales ban has not been put into place. That’s because the state agency in charge of implementing the law has sought more information about how to do it safely and without disrupting the market, as lawmakers directed it to do, and the agency has faced pitfalls along the way.

It’s been too long, however, and the state agency has made its work more complicated than necessary, one health group has said, especially as state investigators find more and more wells contaminated with human-made per-and poly-fluoroalkyl substances, or PFAS, which have been linked to serious health problems such as thyroid disease and kidney cancer.

By the time the ban on PFAS in food packaging takes effect — if it takes effect, because final rules on the matter will need legislative approval — it might make little difference given other moves to limit use of the chemicals. The delay shows how it is one challenge to create a law and another to put it into practice.

The fact that people are still eating off paper plates with PFAS in them is “quite ridiculous,” said Patrick MacRoy, deputy director of Defend Our Health, a public health advocacy organization. Maine was the second state to create a law to ban PFAS in food packaging. “Unfortunately that law has not been implemented by DEP,” he said.

At first, the Maine Department of Environmental Protection didn’t craft the rules necessary for the ban to take effect because it didn’t want to duplicate extensive work happening in Washington state. That state was the first to ban PFAS-laden packaging, which is used because it is grease and water resistant.

Rep. Jessica Fay, D-Raymond, June 30, 2021. Credit: Troy R. Bennett | BDN

Maine law forbids the department from prohibiting the sale of packaging with PFAS unless it determines that safer alternatives exist, are readily available at comparable cost, and perform just as well. The Washington State Department of Ecology was already doing that analysis.

“They have more resources and are relied on for the thoroughness of their work,” said Kerri Malinowski Farris, safer chemicals program manager at the Maine department. Washington’s assessment “was an important factor in how Maine would move forward.”

Published last year, the more than 200-page Washington report found there are suitable alternatives. Food wraps and liners with PFAS can be replaced with wax-coated paper; plates and food boats with PFAS can be replaced with Kaolin clay-coated materials; and pizza boxes can be made with uncoated paper.

Once the Maine department knew acceptable alternatives existed, it decided to conduct a market analysis to see if the products could be readily obtained in Maine at a comparable cost. The alternatives do not have to be made in the state, just sold here. The department put out a request for proposals for a firm to study the issue. It asked for proposals by March 18 and aimed for the market review to be complete by July 1.

“We’re an entirely different marketplace than Washington state. We wanted to ensure that we met our obligation in statute,” Farris said.

But no one applied to do the food packaging market analysis.

“That was a surprise to us that we didn’t have consultants bid on it. It would be unfortunate for someone to criticize thinking we were not trying to move forward on this because we have been doing our due diligence on this side,” Farris said.

What’s more, the law doesn’t even mandate the department to pursue the ban. It simply gives it the option to.

MacRoy argued that it was “completely unnecessary” for the department to conduct a market analysis, especially given Washington’s thorough review and the fact that there are global supply chains for food packaging. “If there are a wide range of alternatives in Washington state, they’re going to be available to be ordered in Maine,” he said.

Instead of going through the bidding process again, the department will seek feedback directly from those with a stake in the matter.

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At some point this summer, the department will begin holding meetings to gather information about the cost and availability in Maine of the safer alternatives. Participants will discuss any clarifying language needed in rulemaking to put a prohibition in place. Ultimately, the Maine Legislature needs to approve the drafted rules.  

“We don’t have a timeline specific to rule development. We need to initiate the stakeholder process first, which will help us develop that language,” Farris said.

Even if lawmakers approve the Department of Environmental Protection’s rules, there will likely be more of a wait. Maine law says the ban won’t take effect for two years “following the date on which the department determines that a safer alternative is available.” That timing is uncertain, Farris said.

The prohibition is also not all encompassing. The law states the ban will not apply to manufacturers that have less than $1 billion in total annual national sales of food and beverage products.

It’s unclear which companies would fall into that loophole. Patrick Strauch, executive director of the Maine Forest Products Council, told lawmakers in 2019 that determining who qualifies for the $1 billion exemption would be complicated and “require legal interpretations.”

Changes are taking place regardless of whether Maine’s ban on sales of packaging with PFAS comes to fruition. Environmental and health groups are pushing fast food companies and retail chains to voluntarily remove PFAS from their packaging, and some have said they will. The U.S. Senate is getting involved: A committee last month passed a bipartisan amendment to ban the use of PFAS in food packaging; it still needs broader approval.

Two large manufacturers — AGC Chemicals Americas and Daikin America — say they are phasing out their sales of products containing a certain type of short-chain PFAS, which may persist in humans following dietary exposure. Twin Rivers Paper Co. in Madawaska, which manufactures food packaging papers, anticipates phasing out its use of PFAS by the end of March 2023.

And a Maine law created last year will prohibit people from selling any product, not just food packaging, that contains PFAS — unless the state determines it is an “unavoidable use” — by 2030.

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Erin Rhoda

Erin Rhoda is the editor of Maine Focus, a team that conducts journalism investigations and projects at the Bangor Daily News. She also writes for the newspaper, often centering her work on domestic and...