PFAS laws will significantly impact the fashion industry come 2025. New York and California have each passed legislation that will regulate the use—and eventual phaseout—of PFAS in apparel and other textiles.
PFAS, an acronym for per- and polyfluoroalkyl substances, are a class of chemicals known for their stain resistance, water repellency, and durability. These properties make PFAS desirable for use in clothing, shoes, and other accessories, such as rain gear, swimwear, hiking gear, and athletic apparel, among others. Such uses, however, will soon come to an end in certain states.
The New York bill (S.1322/A.994) is focused on restricting apparel with intentionally added PFAS. California's bill, however, has a broader reach. California Assembly Bill 1817 will prohibit the manufacture, distribution, or sale of any apparel and other textile articles with intentionally added PFAS or a total organic fluorine content in excess of 100 ppm. As set forth below, both states will implement the restrictions in phases, with the first phase taking effect in 2025.
New York
Effective January 1, 2025, no person will be permitted to sell any new apparel containing intentionally added PFAS in New York. Apparel is defined to include clothing items intended for regular wear or formal occasions, such as undergarments, shirts, pants, skirts, dresses, overalls, bodysuits, vests, dancewear, suits, saris, scarves, tops, leggings, leisurewear, formal wear, outdoor apparel, onesies, bibs, and diapers. The rule is limited to apparel and excludes professional uniforms that protect the user from health or environmental hazards, such as personal protective equipment and, for now, outdoor apparel for severe wet conditions.
By January 1, 2027, no person shall sell any new apparel containing PFAS at or above levels to be established by the state, regardless of whether PFAS was intentionally added.
By January 1, 2028, the current exception for outdoor apparel for severe wet conditions will be phased out. At that time, the sale of such apparel in New York will be banned.
Importantly, the bill provides that sellers of such apparel are permitted to rely in good faith on a manufacturer's certificate of compliance to avoid violation of the rules.
California
California's regulation banning PFAS in apparel includes more stringent requirements and applies to a wider range of products.
Effective January 1, 2025, no person will be permitted to manufacture, distribute, or sell any new textile articles that contain either intentionally added PFAS or levels of total organic fluorine that exceed 100 ppm (which will be reduced to 50 ppm by January 1, 2027) in California. This rule is extended to January 1, 2028, as it relates to outdoor apparel for severe wet conditions. However, as of January 1, 2025, any new outdoor apparel for severe wet conditions that is sold in California with intentionally added PFAS or contain total organic fluorine levels in excess of 100 ppm must be accompanied by a label with the statement "Made with PFAS chemicals."
Textile articles are broadly defined to include goods made from a natural, manmade, synthetic fiber, yarn, or fabric that are of a type customarily and ordinarily used in households and businesses, such as apparel, accessories, handbags, backpacks, draperies, shower curtains, furnishings, upholstery, beddings, towels, napkins, and tablecloths. AB 1817 identifies certain products that are excluded from the definition of textile articles, such as personal protective equipment, clothing items exclusively used by the military, carpets, rugs, and textile articles used in laboratory analysis and testing.
In California, a textile article manufacturer must provide sellers of that article a certificate of compliance with AB 1817. The manufacturer must certify that the article does not contain any intentionally added PFAS or does not contain total organic fluorine at levels exceeding 100 ppm. Like New York, sellers are permitted to rely on a manufacturer's certificate of compliance to avoid violation of these rules.
Considerations
Manufacturers, distributors, and sellers of apparel and other textiles should act now to determine whether products in their supply chain contain PFAS and are subject to these bans. Strategic steps should be taken to prepare for compliance with these rules and avoid potential ramifications, including penalties and/or consumer litigation predicated upon a violation of one or both of these laws. Such steps should include review of their supply chains, product formulations, labels, and certification documents. Manufacturers may also need to consider testing inventory for PFAS and working with product research and development teams to comply with these rules.
New York and California are not the only states that have enacted bans on apparel containing PFAS. However, they are the first to enact rules with effective dates looming in 2025. It is critical for the fashion industry and others to stay informed of the various state bans on apparel and other products, including the varying requirements, nuances, and timing of each piece of legislation.
