Perhaps as a reminder to manufacturers and importers of just how difficult the winter of 1621 was for the pilgrims, the day after Thanksgiving is the reporting deadline for certain children’s products containing cadmium, mercury, or arsenic under the Maine Safer Chemicals in Children’s Products Act (38 M.R.S. § 1691 et seq.).
Unlike the Washington Children’s Safe Product Act, which requires reporting on a plethora of chemicals, the Maine Act only requires reporting after the Department of Environmental Protection identifies a chemical as a “priority chemical” and specifies the children’s product categories for which reporting is required.
The Department issued regulations for cadmium, mercury, and arsenic in children’s products effective on June 2, 2014. Each regulation requires reporting within 180 days of the effective date—which here, happens to be November 28, 2014. The act defines “manufacturers” as the domestic manufacturer or brand holder, and the importer or first domestic distributor if the manufacturer does not have a presence in the United States.
Cadmium, mercury, and arsenic reporting
The Department identified cadmium, mercury, and arsenic as priority chemicals in connection with the following children’s product categories:
- childcare articles
- craft supplies
- safety seat
- occasion supplies
- personal accessories
- personal care products
- school supplies
The reporting requirement is very similar to Washington’s CSPA, mirroring many of the same issues. Reports must identify:
- manufacturer (including contact information)
- product description, including whether the product or a component can fit in a child’s mouth
- number of units sold or distributed in maine (national numbers are also permitted)
- the amount of cadmium in the product
- the function of the cadmium in the product
- any other relevant information, such as exposure assessments
The Department has issued guidance on reporting, including spreadsheet templates for reporting cadmium, mercury, and arsenic. The guidance provides detailed instructions on submitting information. It also provides helpful information on determining whether the presence of one of the priority chemicals in a product requires reporting.
For intentionally-added cadmium, mercury, or arsenic, a report is required if any of the chemicals is present at the practical quantification limit, or lowest concentration that can be reliably measured. A report is also required if any of these chemicals is present as a contaminant above 100 parts per million unless the manufacturer has manufacturing control processes in place to minimize the presence of the contaminant and exercises due diligence with regard to these processes.
The guidance suggests that this requires demonstrated compliance with ISO, ASTM, or other established certification or standards programs.
The guidance provides the following examples of due diligence:
- use and enforcement of contract specifications.
- procedures to ensure the quality/purity of feedstock (whether raw or recycled).
- periodic testing for the presence and amount of priority chemicals.
- auditing of contractor or supplier manufacturing processes.
- use of a chemical educational outreach program for members of supply chain.
If the Department finds a product that it believes the manufacturer should have reported, it will first send a notification to give the manufacturer an opportunity to make a case for the contaminant/manufacturing control process exemption.
The statute prohibits sale of the product within the state if it is not reported, but neither the statute nor the subsequent regulations specify other enforcement options, such as fines or penalties. A review of the Department’s available enforcement reports also did not show whether it has proceeded against any manufacturers. Presumably, the Department would pursue penalties under Maine’s general enforcement provisions for environmental laws, which authorize civil penalties of up to $10,000 per violation per day.
The Department is authorized to collect fees from reporting manufacturers to cover the cost of collecting and managing information. The Department’s guidance page directs reporting entities to “contact the Department to confirm applicability and discuss the reporting fee payment.” The contact is Kerri Malinowski, (207) 215-1894, firstname.lastname@example.org.