United States: Clothing Companies Are Being Targeted With PFAS Liability

Per-and polyfluoroalkyl substances (PFAS) are a group of human-made chemicals used to make fluoropolymer coatings that resist heat, oil, stains, grease, and water. Fluoropolymer coatings have been in use for decades, and are commonly found in commercial, industry, and consumer products such as clothing, furniture, adhesives, food packaging, heat-resistant non-stick cooking surfaces, and electrical wire insulation. From an environmental perspective, PFAS are known as "forever chemicals" because they do not readily break down, and, as a result of their use, are found in soil, water, and air across the United States.

With studies suggesting that PFAS exposure may result in adverse health effects in humans and animals, both federal and state regulators have taken steps to control PFAS—including how clothing companies manufacture, use, and label products containing these chemicals.

Federal liability

At the federal level, the United States Environmental Protection Agency (EPA) has taken steps to designate two of the most commonly used PFAS chemicals—perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA)—as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). As a result, clothing companies using PFAS may become subject to regulation under the Resource Conservation and Recovery Act (RCRA), which specifies how such chemicals must be managed, used, treated, transported, stored, and disposed of. CERCLA liability, on the other hand, can attach to clothing manufacturers which have released or disposed of PFAS into the environment—often resulting in multi-million dollar cleanup costs.

State liability

On the state level, clothing companies selling products to California consumers have the obligation to warn California consumers before exposing them to products containing PFOS and PFOA under California's Proposition 65 (Prop 65). These two chemicals are included on the Prop 65 list because exposure to such chemicals may cause cancer, birth defects, or other reproductive harm. Pursuant to Prop 65, businesses with 10 or more employees must provide a "clear and reasonable" warning before exposing Californians to PFOS and PFOA, or face potential penalties of up to $2,500 per "violation" in addition to enforcer attorneys' fees.

Both PFOS and PFOA are the subjects of recent Prop 65 Notices of Violation. In the past six months, at least five such notices have been issued to jacket manufacturers—likely due to the use of PFAS in creating water-resistant materials. Other recently targeted products include coverall bibs, umbrellas, shower liners, and crib mattress pads, which are likewise made using water-resistant materials.

Manufacturers and retailers using PFAS should invest in a structured Prop 65 compliance plan, as a Prop 65 Notice of Violation can be both costly and difficult to resolve. Notices of Violation based on exposure to PFAS may be particularly challenging to resolve given the absence of established safe-harbor limits (i.e., a level of exposure to a listed chemical that does not require a Prop 65 warning), which normally provide a key line of defense to Prop 65 targets.

Relatedly, California Governor Newsom recently signed the Safer Clothes and Textiles Act into law, which bans certain quantities of PFAS in textiles. Starting in 2025, the manufacture, sale, or distribution in California of textiles containing more than 100 parts per million (ppm) of PFAS will be prohibited. This threshold will reduce to 50 ppm in 2027. Although the law does not apply to outdoor apparel for severe wet conditions until Jan. 1, 2028, after Jan. 1, 2025, new outdoor apparel for severe wet conditions that contain regulated PFAS must have a legible and easily discernible disclosure with the statement "Made with PFAS chemicals," including for online listings of products for sale. This is in addition to the Prop 65 warning requirements. Textile manufacturers should start investing in research and development to ensure that they can satisfy these thresholds.

Although Prop 65 and the Safer Clothes and Textiles Act are California laws, their impact on clothing companies is far-reaching. These laws apply to out-of-state clothing companies selling clothes to California consumers. Given that California is the world's fifth-largest economy, decisions to cease selling into California are infrequent. Moreover, other states have also enacted or are in the process of enacting laws targeting the use of PFAS in consumer products, including clothing.

Looking ahead

Recent regulation of PFAS signals that these chemicals will continue to be a hot topic in the environmental compliance and litigation realm. Clothing companies using PFAS should be mindful of these issues and ensure compliance to avoid costly liability.

Originally Published by Sourcing Journal

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