Gov. Paul LePage’s administration has endorsed a substantially weakened draft of a rule requiring manufacturers to reveal which products contain any of four plastic softening agents believed to harm fetuses and children.

The state Department of Environmental Protection has decided to recommend adding the four phthalates to a list of five other substances regulated under the state’s Kid Safe Products Act, a 2008 law designed to protect children and fetuses from harmful chemicals in consumer products. The names of products that include a listed chemical are to be disclosed to the state and posted to an Internet database. Only two other states – Washington and California – have created such a system.

The four phthalates under consideration can be used in a wide range of consumer products sold in Maine, including shampoos, garden hoses and plastic bottles, and have been linked to a range of adverse health effects, particularly to fetuses, because they disrupt the production of key human hormones.

The original draft of the rule was written by members of the Alliance for a Clean and Healthy Maine, a coalition of groups engaged in toxics regulation, which gathered more than 2,000 petition signatures to put it before the department. But the DEP, which is headed by a former chemical industry lobbyist, changed the language of the rule so it would apply only to consumer products targeted to children under the age of 12 – and not pregnant mothers. The administration struck requirements for manufacturers of adult personal care products and accessories, cosmetics, jewelry, watches, clothing and art supplies, and added exclusions for discontinued items, and for food and beverage products not “intentionally marketed or intended for use of children under 3 years of age.”

Those changes had been requested in writing by one or another of the industry associations representing Maine retailers and the national manufacturers of household products and paints and coatings, who argued that the Kid Safe Products Act should apply only to products aimed at younger children, not at adults, pregnant or otherwise.

“A part of our concern is that there’s the federal consumer safety act that has pretty clear definitions of what is considered a children’s product, and it seemed like the proposed rule was going beyond that,” said Curtis Picard, executive director of the Retail Association of Maine, who hadn’t yet seen the new draft. “We wanted whatever we do on this to be in line with federal regulations.”

DISPUTE OVER FETUS LANGUAGE

Asked to comment on the reason for narrowing the rule, DEP spokesman Karl Wilkins said by email that “many of the changes … were necessary in order to align its language with governing statute.”

But that statute, the Kid Safe Products Act, explicitly includes fetuses. It defines consumer products as both those intended for children under 12 and any “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.”

Proponents of phthalate regulation reacted strongly to the changes.

“Any assertion that Maine law is not intended to protect pregnant women is ridiculous and simply rewriting history,” said Kathy Kilrain del Rio of the Maine Women’s Lobby. “Maine lawmakers designed a system to follow the science, not cherry-pick facts to protect the chemical industry. This is about our health, and prenatal exposure to dangerous chemicals cannot be ignored.”

The umbrella group that has pushed for phthalate regulation, the Alliance for a Clean and Healthy Maine, condemned the draft proposal in a statement Thursday, saying the DEP had “once again chosen symbolism over substance.”

“This leaves pregnant women completely in the dark about which products are safer and which could cause harm,” the alliance said. “Rather than abiding by the law’s clear intention to protect pregnant women, the DEP has chosen to circumvent Maine lawmakers and narrow the focus to suit the chemical industry and product makers.”

State senator Tom Saviello, R-Wilton, the senate chair of the legislative committee that oversees the DEP, said he applauded the development, which shows the department is willing to take action on suspect chemicals. “I realize some may be disappointed because they did not get all they wanted or their ‘glass is half empty’,” Saviello said. “I look at the glass half full and celebrate.”

Because substantive changes were made in the new draft, the DEP has opened a new public comment period, which ends Feb. 17.

EFFECTS ON HEALTH CHRONICLED

If implemented, the new rule will not ban or even require labeling of products containing phthalates. Rather, manufacturers will have to reveal to the state which products contain the four substances: di(2-ethylhexyl) phthalate, also known as DEHP; dibutyl phthalate; benzyl butyl phthalate; and diethyl phthalate. The information would be publicly available on the Internet.

Phthalates are found in everything from raincoats, plastic packaging and detergents to shampoo, hairspray, garden hoses and vinyl flooring. Numerous scientific studies, which were summarized in a 2014 article in the peer-reviewed journal Frontiers in Public Health, have found associations between adult exposure to phthalates and reduced sperm count and quality. Exposure in the womb is associated with improperly formed reproductive organs in boys. Others have shown possible effects on brain development and the immune system.

California and Washington already require manufacturers to disclose products for kids under 12 that contain suspected toxins, and Washington’s list includes the four phthalates currently under consideration in Maine. Starting next month, European Union manufacturers must receive special approval to use three of them in most consumer products.

HISTORY OF FIGHTING PRODUCTS ACT

A Portland Press Herald investigation published in June 2013 revealed how DEP Commissioner Patricia Aho had stifled laws and programs she had been paid to defeat in her previous career as a lobbyist for the oil, chemical, waste management, drug and real estate development industries. The series showed Aho had fought initial passage of the Kid Safe Products Act on behalf of AstraZeneca pharmaceuticals, the American Petroleum Institute and lead paint maker Millennium Holdings, and in early 2011 was still fighting the law as the principal lobbyist for the American Chemistry Council.

The LePage administration tried to repeal or gut the law shortly after taking office in 2011, but was rebuffed by the Republican-controlled Legislature.

In November 2013, the DEP proposed requiring manufacturers to disclose which of their products contained any of four chemicals: formaldehyde, mercury, arsenic and cadmium. Critics noted that the information already existed, courtesy of a similar regulatory effort in Washington state, and three of the chemicals were already effectively banned from most consumer products. Skepticism grew in May 2014 when the DEP suddenly dropped formaldehyde from the list, saying it wanted to await the results of a study the EPA has been working on for nearly two decades.

But Wednesday, the DEP reintroduced a draft rule for formaldehyde, even though the federal study has not been completed. Asked about the change of direction, DEP spokesman Wilkins said only that they had “determined it was appropriate to proceed.”

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