ARTICLE
18 January 2023

Fashion, Textiles And Cosmetics: Banning 'forever Chemicals' In Europe And The US

WL
Withers LLP
Contributor
Trusted advisors to successful people and businesses across the globe with complex legal needs
Per- and poly-fluoroalkyl substances ('PFASs'), known as 'forever chemicals' are a class of synthetic chemicals that are used extensively in a wide range of products across numerous industries...
Worldwide Consumer Protection
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What are PFASs and how are they used?

Per- and poly-fluoroalkyl substances ('PFASs'), known as 'forever chemicals' are a class of synthetic chemicals that are used extensively in a wide range of products across numerous industries, including fashion, textiles and functional apparel, cosmetics, firefighting equipment, food packaging, and cookware.

The structure of PFASs means that, among other qualities, they are water and stain repellent and heat resistant. This makes them an attractive choice for various consumer products, including, but not limited to, waterproof clothing, sportswear, outdoors and performance wear, make-up, personal protective equipment for firefighters and firefighting foam, and non-stick coatings for cookware and food packaging.

Why are they harmful?

PFASs can cause significant harm, particularly when they are released into the environment. They are highly resistant to degradation (hence the terminology 'forever chemicals') – which is why they are a popular choice for the industries and products in which they are used. However, this has a severe adverse environmental impact. When PFASs are released, including through industrial manufacturing and household use, they are highly pervasive and contaminate water and soil and, as a consequence, are ingested by humans and other animals. Studies have shown that PFASs: (i) can have adverse effects on reproduction and foetal development, (ii) can cause kidney and liver diseases and cancer, and (iii) may also be linked to hormonal dysfunction.

PFASs can cause significant harm, particularly when they are released into the environment.

We can come into contact with PFASs in a number of ways, both directly and indirectly. PFASs are present in products we encounter on a daily basis, including cosmetics and clothing, meaning direct skin contact. During industrial manufacturing processes and when, for example, clothes and cookware are washed, or cosmetics are removed, PFASs can enter the waste system and contaminate water supplies and soil. These PFASs then enter and accumulate in our bodies (and those of other species) through drinking contaminated water and eating contaminated food.

It is very difficult and expensive to remove PFASs once they have been released into the environment, so they continue to accumulate.

Proposed widespread ban in the EU

Many types of PFASs are already banned or restricted in the EU because of concerns about their safety and toxicity. The European Chemicals Agency ('ECHA') last year proposed gradually banning the use of PFASs in firefighting foams. However, Denmark, Germany, The Netherlands, Norway and Sweden have gone one step further and last Friday (13 January 2023) submitted a proposal to ECHA for a wider restriction on the manufacturing, placing on the market, and use of PFASs in the EU. The proposal is one of the broadest in the EU's history and will be published in full by ECHA on 7 February 2023. These Member States have previously stated that "[w]ithout taking action, [PFAS] concentrations will continue to increase, and their toxic and polluting effects will be difficult to reverse".

Denmark, Germany, The Netherlands, Norway and Sweden have gone one step further and last Friday (13 January 2023) submitted a proposal to ECHA for a wider restriction on the manufacturing, placing on the market, and use of PFASs in the EU

Use and future of PFASs in the UK

PFASs are not currently illegal in the UK, although the use of certain types of PFAS have been restricted. In 2021, the UK's Environment Agency ('EA') conducted a review into PFASs and found that nine types are routinely used in cosmetics in the UK. A BBC News investigation recently revealed the beauty brands that are selling these cosmetics, including some that committed to phasing them out as far back as 2018. Following the review by the EA, the Health and Safety Executive in the UK is now working on an assessment of the health risks associated with PFASs for review by the government. Numerous NGOs – including some involved with wildlife and environmental preservation and cancer research and prevention – have co-signed a letter to the government urging a ban on non-essential uses of PFASs in the UK. Arguably, it is only a matter of time until the UK bans or otherwise heavily restricts use of these 'forever chemicals' in the UK.

PFAS legislation being passed in the US

In September 2022, California passed a law to ban the manufacture, sale or distribution of textile articles, apparel, and outdoor apparel containing intentionally added PFASs by January 2025 (2028 in the case of outdoor clothing for severe wet conditions, provided the products are clearly labelled as still containing PFASs). A similar California law goes into effect on July 1, 2023, that provides a prohibition on selling or distributing any new juvenile product that contains regulated PFAS chemicals. This law covers items such as pillows, bassinets, bedside sleepers, booster seats, changing pads, crib mattresses, floor playmats, highchairs, and many other functional items for children.

A California law goes into effect on July 1, 2023, that provides a prohibition on selling or distributing any new juvenile product that contains regulated PFAS chemicals

At the beginning of this month, New York passed a law to ban the manufacture and sale of apparel containing PFASs, effective as of December 31, 2023. Many states have targeted the use of PFASs in in multiple product categories, including cosmetics, carpets, food packaging, draperies, upholstery, oil and gas products, and even ski wax. Colorado, Maine, and Maryland have enacted legislation prohibiting the manufacture and sale of covered products containing intentionally added PFAS in their states. Similar legislation is pending in Michigan, New Jersey and Washington.

Federal bills aimed at regulating PFASs, including bans on their use in food packaging, textiles and cosmetics and stricter clean-up requirements, have been put forward in the US but have so far failed to make it through Congress. Sales of PFASs by the chemicals industry brings in billions of dollars of revenue annually, hence there is heavy lobbying to protect these interests. It remains to be seen how restrictions on the use of PFASs will be dealt with at a Federal level in the US. In the meantime, individual states are moving forward on enacting legislation, but there are many inconsistencies between these various regulations, including scope of the prohibitions and product exemptions, the effective dates, reporting requirements, definitions of "intentionally added PFAS", and how and whether the states establish Total Organic Fluorine thresholds. It is unlikely that Federal legislation will be adopted in the near future that harmonizes or pre-empts these various state regulations.

Impact on the fashion and cosmetics industry

Until now, it has been up to brands to self-regulate their use of PFASs in their products

Many popular and high-end brands heavily rely on PFASs in their clothing and cosmetics – even those that market themselves as natural and sustainable.

Until now, it has been up to brands to self-regulate their use of PFASs in their products. A contributing factor to the reluctance to remove these toxic 'forever chemicals' is the R&D and associated cost and resources needed to find a safer alternative that is as – or more – effective, and the risks involved in taking that leap to begin with.

Now brands are being forced to remove PFASs from their products by law, we expect to see greater innovation in the fashion and cosmetics industry, whether in-house or by new companies bringing safer and more sustainable alternatives to the market.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
18 January 2023

Fashion, Textiles And Cosmetics: Banning 'forever Chemicals' In Europe And The US

Worldwide Consumer Protection
Contributor
Trusted advisors to successful people and businesses across the globe with complex legal needs
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