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An Act To Protect Children's Health and the Environment from Toxic Chemicals in Toys and Children's Products

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Overview

This is Maine’s enabling statute for the state’s Toxic Chemicals in Children’s Products programme at 38 MRSA Chapter 16-D, §§ 1691 to 1699-B, signed as Chapter 643 of the 2008 public laws by the 123rd Maine State Legislature on 17 April 2008 (HP 1432, LR 2877; LD 2048) and effective 18 July 2008. The statute does not establish numerical limits, testing requirements, or product-specific bans for individual heavy metals. It directs the Maine DEP, in concurrence with MeCDC, to identify a list of “chemicals of high concern” in consumer children’s products (§ 1693), to designate “priority chemicals” from that list (§ 1694), to require manufacturer disclosure of priority chemicals in children’s products sold in Maine (§ 1695), and to authorise rulemaking by the Board of Environmental Protection to prohibit the sale of children’s products containing priority chemicals when safer alternatives are available at comparable cost (§ 1696). It is one of the four state children’s-products programmes (WA, OR, VT, ME) referenced as a programme model in Toxic Chemicals in Children's Products Program: Chemicals and Practical Quantitation Limits Under Consideration (Draft Update, Feb. 2023).

Key numbers

The statute contains no measured contamination values. The structurally important figures here are statutory citations, deadlines, and rulemaking-authority parameters.

  • Citation and signing (cover page): Public Law Chapter 643, LD 2048, HP 1432, LR 2877, 123rd Maine State Legislature, First Special Session. Signed 17 April 2008. Effective 18 July 2008.
  • Codification (Sec. 2): 38 MRSA Chapter 16-D, §§ 1691 to 1699-B, titled “Toxic Chemicals in Children’s Products.”
  • Repeal (Sec. 1): 38 MRSA § 1609, sub-§ 10 (as enacted by PL 2007, c. 296, § 1) is repealed.
  • “Children’s product” definition (§ 1691(7)): “a consumer product intended for use by children, 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’s or a fetus’s being exposed to that chemical.”
  • “Consumer product” carve-outs (§ 1691(8)): “consumer product” excludes food and beverages and additives to them; tobacco; paper and forest products; pesticides regulated by the US EPA; drugs and biologics regulated by the US FDA; and FDA-regulated drug/biologic packaging.
  • “Chemical of high concern” criteria (§ 1693(1)): a chemical may be included on the list only if it has been identified by an authoritative governmental entity as one of (A) a carcinogen, a reproductive or developmental toxicant, or an endocrine disruptor; (B) persistent, bioaccumulative and toxic; or (C) very persistent and very bioaccumulative.
  • Deadline — initial chemicals-of-high-concern list (§ 1693(1) and Sec. 3): the DEP, in concurrence with MeCDC, must publish the list by 1 January 2010.
  • Deadline — first priority chemicals (§ 1694(1)): the commissioner must designate at least two priority chemicals by 1 January 2011.
  • Periodic review (§ 1694(2)): the commissioner must review the chemicals-of-high-concern list at least every 3 years.
  • Sec. 3 initial-list authoritative-list inputs (eight criteria categories the DEP and MeCDC may consider): (1) IARC Group 1 and Group 2A carcinogens; (2) HHS Public Health Service Act § 241(b)(4) known and reasonably-anticipated human carcinogens (US NTP RoC); (3) US EPA Group A and Group B carcinogens; (4) reproductive or developmental toxicants identified by the US NTP Center for the Evaluation of Risks to Human Reproduction (CERHR) or by the California EPA Office of Environmental Health Hazard Assessment under Prop 65 (Cal. Health & Safety Code § 25249.8); (5) known or likely endocrine disruptors per US EPA screening or testing under FFDCA 21 USC § 346a(p) as amended by the Food Quality Protection Act (PL 104-170) or the SDWA 42 USC § 300j-17; (6) endocrine disruptors listed in Annex XIV of EU REACH (Regulation (EC) No 1907/2006); (7) PBT chemicals identified by the WA Department of Ecology in WAC Chapter 173-333 or by the US EPA in 40 CFR Part 372; and (8) vPvB chemicals listed in EU REACH Annex XIV.
  • Priority chemical designation criteria (§ 1694(1)): the commissioner may designate a chemical of high concern as a priority chemical if any of six findings is made — (A) biomonitoring presence in human blood (including umbilical cord blood), breast milk, urine, or other bodily tissues or fluids; (B) sampling presence in household dust, indoor air, drinking water, or elsewhere in the home environment; (C) monitoring presence in fish, wildlife, or the natural environment; (D) presence in a consumer product used or present in the home; (E) identification as a US EPA high production volume chemical; or (F) sale or use of the chemical or product containing it has been banned in another US state.
  • Manufacturer-disclosure trigger (§ 1695(1)): not later than 180 days after a priority chemical is identified, manufacturers and distributors of a children’s product for sale in Maine that contains the priority chemical must notify the department in writing of the children’s product, the units sold or distributed in Maine or nationally, the priority chemical or chemicals, the amount in each unit, and the intended purpose. Supplemental information requestable by the department includes likelihood of release and exposure across the product life cycle, body and environmental burden data, and an assessment of alternatives availability, cost, feasibility, and performance (§ 1695(2)). The commissioner may waive all or part of the notification requirement for substantially-publicly-available information, unneeded uses, or minor-volume uses (§ 1695(3)).
  • Sales-prohibition rulemaking authority (§ 1696(1)): the Board of Environmental Protection may adopt rules prohibiting the manufacture, sale, or distribution of a children’s product containing a priority chemical when it finds that (A) distribution directly or indirectly exposes children and vulnerable populations to the priority chemical and (B) one or more safer alternatives are available at a comparable cost. If multiple safer alternatives exist, the Board may require the least-toxic or least-environmentally-harmful alternative.
  • Effective-date floor for prohibition rules (§ 1696(1)): the effective date of a prohibition may not be sooner than 12 months after notice of the proposed rule is published. Prohibition rules are major substantive rules under Title 5 Chapter 375 sub-c. 2-A.
  • Alternatives-availability presumptions (§ 1696(2)): the Board may, absent persuasive contrary evidence, presume (A) an alternative is safer if it is not a chemical of high concern; (B) a safer alternative is available if the children’s product containing the priority chemical has been banned by another US state; (C) a safer alternative is available if the children’s product is apparel or a novelty; and (D) a safer alternative is available if the alternative is sold in the United States.
  • Compliance-plan deadline (§ 1696(3)): manufacturers and distributors of a covered children’s product must file a compliance plan no later than 180 days prior to the effective date of the prohibition, or seek a § 1696(5) waiver. A compliance plan must identify the children’s product, specify whether compliance will be by discontinuation or by substitution of a safer alternative, and (if by substitution) identify the safer alternative and substitution timetable.
  • Waiver term (§ 1696(5)): waivers run for a term not to exceed 5 years, renewable for additional 5-year terms on written application showing that technically or economically feasible alternatives remain unavailable. The commissioner must deny or grant waiver requests within 60 days of receipt of a completed application.
  • Applicability exemptions (§ 1697): (1) used products; (2) priority chemicals used in or for industry or manufacturing; (3) motor vehicles and watercraft and their component parts, except that priority chemicals in detachable car seats are not exempt; (4) priority chemicals generated solely as combustion by-products or present in combustible fuels; (5) retailers, unless the retailer knowingly sells a children’s product containing a priority chemical after the effective date of its prohibition having received prior notification from a manufacturer, distributor, or the State; (6) mercury-added products coordination — the commissioner may designate mercury or a mercury compound as a priority chemical for § 1696 rulemaking purposes for mercury-added products not already regulated under §§ 1661-C or 1667, and the § 1695 disclosure requirements do not apply to manufacturers or distributors who have complied with the notification requirement under § 1661-A; (7) telecommunications-service-provider names appearing on telecom devices the provider did not manufacture; (8) food and beverage container and packaging, unless that product is intentionally marketed or intended for the use of children under 3 years of age.
  • Interstate clearinghouse (§ 1698): authorises participation in an interstate clearinghouse to classify existing chemicals in commerce into four categories — chemicals of high concern, moderate concern, unknown concern, and low concern — and to share data on uses, hazards, environmental concerns, and safer alternatives.
  • Education and assistance (§ 1699): directs the DEP, “as resources allow,” to develop a programme to help consumers and retailers identify children’s products that may contain priority chemicals.
  • Enforcement (§ 1699-A): (1) a children’s product containing a priority chemical may not be sold, offered for sale, or distributed for sale in Maine if the manufacturer or distributor has failed to provide § 1695 information by the required date (the commissioner may exempt for unreasonable-risk-to-public-health cases); (2) on agency suspicion of a § 1696 violation, the manufacturer or distributor must within 10 days either provide a certificate of compliance attesting the children’s product does not contain the priority chemical, or notify resellers that sale is prohibited and provide the department a list of those notified.
  • Donations (§ 1699-B): the department, through the Governor, may accept donations, grants, and other funds to carry out the chapter.
  • Stakeholder group (Sec. 4): prior to first priority-chemical designation under § 1694(1), the commissioner must convene a stakeholder group (consumer-product manufacturers, chemical manufacturers, retailers, trade associations, nonprofit health organisations, business and environmental groups, other affected parties, and invited independent experts) and seek recommendations on the priority-chemical-designation protocol, implementation responsibilities and proposed rules, and stakeholder concerns.

Methods (brief)

Not applicable. This is an enacted state statute, not an analytical study. No analytical chemistry, sample preparation, LOD/LOQ, or measurements are reported. The Sec. 3 enumeration of authoritative-list inputs (IARC, US NTP RoC, US EPA carcinogen groupings, US NTP CERHR, CalEPA OEHHA Prop 65, US EPA endocrine-disruptor screening, EU REACH Annex XIV, WA Ecology PBT list, US EPA 40 CFR Part 372 TRI PBT) defines list-membership-test eligibility criteria for the chemicals-of-high-concern list, not analytical methods.

Implications

Certification (HMTc): This is the upstream rulemaking-authority statute for Maine’s children’s-products toxics programme — the “ME” element of the four-state-programme reference set (WA, OR, VT, ME) cited in Toxic Chemicals in Children's Products Program: Chemicals and Practical Quantitation Limits Under Consideration (Draft Update, Feb. 2023). For HMTc Cat 2 (children’s personal care, contact-route children’s products), the statute is jurisdictional context: it does not by itself establish concentration limits or testing requirements for any heavy metal. Heavy-metals-specific Maine obligations derive from downstream regulatory products (the chemicals-of-high-concern list published by DEP/MeCDC per the § 1693(1) deadline of 1 January 2010, and the priority-chemical designations made under § 1694), which are separate documents and should be ingested separately. Mercury is the only metal explicitly named in the statute (§ 1697(6), the mercury-added-products coordination clause referencing 38 MRSA §§ 1661-A, 1661-C, 1667).

Courses: Useful as a worked example of (a) the architecture of a state enabling statute for a toxics-in-children’s-products programme — definitions, two-tier listing structure (chemicals of high concern → priority chemicals), disclosure trigger, sales-prohibition rulemaking authority, alternatives-assessment presumptions, exemptions, waiver structure, and enforcement; (b) the distinction between the list (a candidate pool screened against authoritative-list criteria) and the designation (the actionable disclosure-and-prohibition trigger); (c) the alternatives-availability rebuttable presumption under § 1696(2)(B) that a safer alternative is available if the product has been banned by another US state — a structural ratcheting mechanism that compounds across the four-state WA/OR/VT/ME bloc whenever any one state acts.

App: Country-of-origin or state-of-sale “US-ME” plus product category “children’s product” (per the § 1691(7) definition: baby products, toys, car seats, personal care products, clothing, and any consumer product containing a chemical of high concern likely to result in child or fetus exposure) triggers Maine’s framework. Specific app-surface triggers (which priority chemicals are subject to which disclosure or sale-prohibition rules) are functions of the downstream priority-chemical designations, not of this statute alone. The app should treat this page as a jurisdictional-framework reference and not as a source of numerical thresholds.

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