Following in California’s footsteps, New York has recently joined a litany of States banning per- and polyfluoroalkyl substances (“PFAS”) in clothing and apparel.
New York Governor Kathy Hochul signed the bill into law on December 30, 2022, which will officially eliminate the use of PFAS in all apparel by December 31, 2023. The law follows on the heels of New York’s PFAS ban in food packaging that became effective on December 31, 2022.
In September of last year, California enacted a similar ban on PFAS in clothing. The Golden State’s law prohibits the distribution, sale, or offering for sale of any new textiles that contain PFAS beginning on January 1, 2025. While New York clearly drew upon the California law, and similar laws in other states, the New York law is less detailed. For example, while California prescribes a compliance process by which manufacturers are to provide retailers and distributors with a “certificate of compliance,” no such provision is included in New York. Similarly, California also includes a provision, absent in New York, requiring the use of the “least toxic alternative” when substituting for PFAS.
Perhaps the most interesting difference in the two state laws, however, is that while both ban the intentional use of PFAS in apparel (i.e., chemicals with an intended function or technical effect in the product), California also attempts to address residual PFAS levels by including a ban on total organic fluorine content above 100 ppm by 2025 and 50 ppm by 2027.
“Other state are considering action on PFAS in garments, including Washington and California, which will address the problem via their existing regulatory processes. States such as Vermont and Massachusetts have pending legislation that could effect the use of PFAS in garments.”
Notably, the New York law does not apply to “professional uniforms or outerwear intended for extreme conditions.” Presumably, further guidance will be forthcoming to further define this exemption, which is intended to address both severe wet-weather and dangerous fire fighting or similar conditions. For instance, PFAS serve a dual function in apparel worn by firefighters: PFAS aid in flame-suppression foams and fire-suppressive clothing, and they are water resistant, meaning the material does not become soaked and heavy during use.
The bill eliminates the use of PFAS in all apparel by December 31, 2023.