PFAS Observer
New York and California have recently imposed sweeping prohibitions on the sale of apparel containing per- and polyfluoroalkyl substances (PFAS). These prohibitions have a broad scope and are effective and enforceable as of January 1, 2025. Clothing companies and their suppliers will be impacted by these state regulations.
Applicability of New York’s Restrictions
Originally signed into law on December 30, 2022, the New York law prohibits retailers and all other companies throughout the apparel supply chain from selling “any apparel containing perfluoroalkyl and polyfluoroalkyl substances as intentionally added chemicals” within the state. The term “apparel” is defined broadly to include: “clothing items intended for regular wear or formal occasions including, but not limited to, undergarments, shirts, pants, skirts, dresses, overalls, bodysuits, vests, dancewear, suits, saris, scarves, tops, leggings, leisurewear, formal wear, onesies, bibs, and diapers.”
On the other hand, the law defines “intentionally added chemical” as a “chemical product that serves an intended function in the product component.” This definition is narrow enough to exclude any PFAS that may be present as impurities. The definition is broad enough, however, to capture any PFAS that enhances the functionality of the clothing, including PFAS added for stain, grease or water resistance.
Only two categories of clothing are excluded from the law’s definition of “apparel”:
- Professional uniforms that protect from health or environmental hazards, such as personal protective equipment.
- Outdoor apparel for “severe wet conditions.” This category would exclude clothing items that are “waterproof” from the definition of apparel but not clothing items that are merely “water resistant.” In addition, in order to qualify for this exclusion, clothing must not be marketed for general consumer use.
New York’s law also includes a sweeping regulatory requirement for all companies selling apparel in New York State. The New York State Department of Environmental Conservation (NYSDEC) has interpreted the compliance certification requirements to “apply to anyone who sells or offers for sale apparel or outdoor apparel for severe wet conditions.” This requirement places the requirement on sellers to obtain a compliance certification from manufacturers and then submit that certification to NYSDEC. Should a seller submit a compliance certification, however, the law provides that the seller cannot be found to have violated the law if the seller can show that they relied in good faith on the manufacturer’s assurance that the apparel complies with the law.
Accordingly, the compliance certification must:
- state that any “apparel” as defined by the law contains no intentionally added PFAS.
- be signed by an authorized official of the manufacturing company.
To avail themselves of the exception for apparel designed for severe wet conditions, sellers must submit a compliance certification to NYSDEC that the apparel they are selling fits within the law’s definition of “apparel designed for severe wet conditions” and thus exempt from the prohibition on apparel containing intentionally added PFAS.
A seller who violates the law is subject to penalties of up to $1,000 for the first violation and subject to aggregation for each day that the violation continues. The same principle applies for subsequent violations, except that the penalty maximum is set at $2,500 for each day that the violation continues.
California’s Regulations: Broader Application, More Requirements on Manufacturers
The California law prohibits the manufacture, distribution or sale within California of any new “textile articles” containing “regulated PFAS.” Like New York, California’s prohibition currently exempts outdoor apparel for severe wet conditions from its prohibitions, but the exemption ends on January 1, 2028.
The California law takes a different approach than New York’s by defining “regulated PFAS” as either (1) PFAS that is intentionally added to a product by a manufacturer for a functional or technical effect and (2) PFAS present in a product at or above 100 parts per million in total organic fluorine (beginning January 1, 2025) or 50 parts per million in total organic fluorine (beginning January 1, 2027).
This definition in the California law likely captures more clothing items than New York’s prohibitions. California’s law has several key, nested definitions:
- “textile article” broadly as an “textile goods of a type customarily and ordinarily used in households and businesses, and include, but are not limited to, apparel, accessories, handbags, backpacks, draperies, shower curtains, furnishings, upholstery, beddings, towels, napkins, and tablecloths.” (emphasis added)
- “textile” is defined as “any item made in whole or part from a natural, manmade, or synthetic fiber, yarn, or fabric, and includes, but is not limited to, leather, cotton, silk, jute, hemp, wool, viscose, nylon, or polyester”
- “apparel” is defined as “[c]lothing items intended for regular wear or formal occasions, including, but not limited to, undergarments, shirts, pants, skirts, dresses, overalls, bodysuits, costumes, vests, dancewear, suits, saris, scarves, tops, leggings, school uniforms, leisurewear, athletic wear, sports uniforms, everyday swimwear, formal wear, onesies, bibs, diapers, footwear, and everyday uniforms for workwear … outdoor apparel … [and] outdoor apparel for severe wet conditions”
Thus, the California law also captures most items of clothing, as well as fashion apparel. However, the nested definitions of textile articles and textiles notably exclude personal protective equipment or clothing items for exclusive use by the United States military.
In addition to prohibiting the manufacture, distribution and sale of PFAS-containing clothing and apparel, as well as other textiles, California’s law places two additional requirements on manufacturers. First, the regulations require manufacturers to use the least toxic alternative when removing PFAS from textile articles as part of compliance. Second, the regulations require manufacturers to provide sellers and distributors with certificates of compliance, signed by an authorized official for the manufacturer.
Violations of California’s regulations are subject to civil enforcement with the maximum daily penalty set at $10,000 per violation. The law provides that distributors and retailers will not be found to have violated the law if they relied in good faith on a compliance certification provided by a manufacturer.
Conclusion
Now that California and New York’s laws have gone into effect, clothing manufacturers, wholesalers and retailers have an enforceable legal obligation to account for the presence of PFAS in their products. For companies that have not prepared in advance, complying with the prohibitions may cause business disruptions and contractual breaches if it becomes apparent—for example, through supplier questionnaires—that certain products contain intentionally added PFAS. Additionally, failure to comply with the laws will expose such businesses to penalties. In the case of the New York law, businesses required to submit certifications will be in the position of having their nexus to PFAS subject to public disclosure. This has the potential to create additional litigation risks, as the universe of PFAS litigation, both from individuals and from state governments, expands. In this connection, several recent lawsuits have claimed harmful exposure to PFAS based on dermal contact.