PFAS Ban in New York State Apparel will shake up the fashion industry

On May 24, 2022, the New York Assembly and Senate passed legislation, S.6291, that would ban the sale in New York state of apparel containing intentionally added PFAS effective December 31, 2023. The New York fashion PFAS legislation, which must be signed into law by the governor before it becomes law, would have a significant impact on hundreds of companies involved in the fashion supply chain, and a letter was presented to Governor Hochul on September 1, 2022, in which the governor was asked to either veto the law or give the industry more time to comply with the law. Without vetoing the bill, fashion companies must now take steps to prepare not only for the New York bill’s impact on sales, manufacturing processes and procurement of supplies, but also for the possibility that other states will take similar steps as New York .

New York Fashion PFAS Legislation

S.6291 is a relatively simplified law that will ban the sale in New York State of apparel with intentionally added PFAS. The bill defines apparel as “…garments intended for regular wear or for formal occasions, including but not limited to underwear, shirts, trousers, skirts, dresses, jumpsuits, bodysuits, vests, dancewear, suits, sarees, shawls , tops, leggings , casual wear, formal wear, one-piece suits, bibs and diapers. “Apparel” does not include work uniforms or outerwear intended for extreme conditions.” The ban on PFAS in apparel would come into effect on December 31, 2023.

However, on September 1, 2023, the American Apparel and Footwear Association (AAFA) sent Gov. Hochul a letter urging her to veto the law or extend the compliance period to introduce a numerical threshold that would ban garments would trigger, and allow the industry to sell all existing garments to avoid having to throw the products away. The governor has until the end of the year to sign or veto the bill, so it’s likely that the AAFA will continue its appeals to the governor in the coming days and weeks.

Impact of the New York Fashion PFAS Act on Businesses

The New York legislation puts a consumer product used by every single citizen in the state in the crosshairs for PFAS and, if enacted, would require the apparel industry to transition to sourcing materials over the next fifteen months that do not contain any of these The more than 10,000 existing types of PFAS are changing manufacturing processes to ensure compliance and making potentially financially significant decisions related to current apparel inventories and all apparel manufacturing as companies transition to “PFAS-free” apparel. Other states have either proposed or are considering PFAS apparel legislation (California), but New York’s legislation is considered particularly aggressive due to the relatively short timeframe for compliance and due to its extremely broad definition of PFAS (a fluorinated atom).

It is of paramount importance for companies throughout the apparel supply chain to assess their PFAS risk. Public health and environmental groups are calling on lawmakers to regulate these compounds. A major bone of contention among members of different industries is whether PFAS should be regulated as a class or as individual compounds. While each PFAS compound has a unique chemical makeup and affects the environment and the human body in different ways, some groups argue that PFAS should be regulated collectively as a class because they interact with each other in the body, thereby resulting in a collective impact. Other groups argue that the individual compounds are too diverse and that their regulation as a class would be too restrictive for some chemicals and not restrictive enough for others.

Businesses should stay informed so they are not caught off guard. States are increasingly passing PFAS product legislation with different scopes. It is important for all manufacturers, particularly those selling goods across states, to understand how these different standards will affect them, whether PFAS is regulated as individual compounds or as a class. Conducting regular self-assessments for possible PFAS risks and potential regulatory violations can result in long-term savings for organizations and should be a common practice in their own risk assessment.

©2022 CMBG3 Law, LLC. All rights reserved.National Law Review, Volume XII, Number 258

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