Like It's Going Out of Style: States Taking Action to Ban PFAS in Clothing

PFAS and Apparel Products

A variety of PFAS (of which many thousands are known) are frequently applied to both apparel products and accessories, including shoes and bags, in order to render them more water- and stain-resistant while keeping the fabric itself breathable. While some apparel manufacturers have already made firm commitments to the phasing out of PFAS in their products, many have not done so at this point.

Notable State Developments

New York:
New York Assembly Bill A07063 was signed into law on December 30, 2022, and goes into effect less than one year from now, on December 31, 2023. The new state law prohibits the sale or offering for sale of apparel to which any PFAS have been intentionally added during manufacture in order to provide a functional effect.
 
The law applies to “clothing items intended for both regular wear and formal occasions,” and specifically lists items such as “undergarments, shirts, pants, skirts, dresses, overalls, bodysuits, vests, dancewear, suits, saris, scarves, tops, leggings, leisurewear, formal wear, onesies, bibs, and diapers.” It excludes only professional uniforms and outerwear intended for extreme conditions. 
 
California:
The New York legislation follows fast on the heels of California Assembly Bill AB 1817, which became law on September 29, 2022, but does not go into effect until January 1, 2025, one year later than New York’s new law. The California law is somewhat broader in scope and covers a variety of textiles in addition to apparel, including accessories, handbags, backpacks, draperies, furnishings, upholstery, bedding, towels, napkins, and tablecloths (but not carpets or rugs), while prohibiting manufacture in addition to sale of such products. It adds athletic wear, sports uniforms, everyday swimwear, everyday uniforms for workwear, and footwear to the list of examples of apparel included in the New York bill. It also limits the presence of any PFAS at or above 100 parts per million (dropping to 50 parts per million by January 1, 2027) even if their presence is incidental and not intentional.
 
Washington:
Meanwhile, the State of Washington’s Department of Ecology is working on a long-term Chemical Action Plan (last revised September 2022) that seeks to reduce human and environmental exposure to PFAS, with reduction or removal of PFAS in consumer products a major part of that plan. While some priority products have already been identified under the first cycle of the state’s Safer Products for Washington program, the Department has now set its sights on a list of additional products, including water-resistant clothing that would be considered for action under the second cycle of the program.

Takeaway

It seems highly likely that actions by these three states against the use of PFAS in apparel is just the beginning and that more states will follow suit in the next few years, given similar current actions over PFAS in packaging, cosmetics, and other consumer products. Companies may want to consider not only compliance with the patchwork of state laws, but also how to ensure that supply agreements adequately protect company interests.
 
ArentFox Schiff advises clients on the myriad of issues associated with the spate of PFAS legislation.