On March 24, 2023, New York Governor Kathy Hochul signed a bill prohibiting the sale of apparel containing “intentionally added” per- and polyfluoroalkyl substances (PFAS) in clothing apparel starting on January 1, 2025. Additionally, by January 1, 2027, the new law bans the sale of any new apparel unintentionally containing PFAS at an amount to be set by the Department of Environmental Conservation (DEC) in regulation.

PFAS, in use since the 1940s, are found in hundreds of widely used products and do not readily degrade in the environment, a characteristic earning them the description, “forever chemicals.” California has similarly banned the sale of apparel containing intentionally added PFAS substances. Those who violate the law will be subject to a fine of up to $1,000 a day for the first violation and up to $2,500 a day for continued violations. Notably, there is a safe harbor for sellers of apparel who have a certificate of compliance from the manufacturer.

One of the critical considerations for businesses is whether their products fall under the provision of “apparel,” defined as “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, outdoor apparel, onesies, bibs, and diapers.” It does not include “professional uniforms that are worn to protect the wearer from health or environmental hazards, including personal protective equipment.”

However, it does ban outdoor apparel for severe wet conditions by Jan. 1, 2028. Such apparel is defined as “apparel that are extreme and extended use products designed for outdoor sports experts for applications that provide protection against extended exposure to extreme rain conditions or against extended immersion in water or wet conditions, such as from snow, in order to protect the health and safety of the user and that are not marketed for general consumer use.”

Businesses also should understand the definition of “intentionally added” as outlined in the law, which is delineated as “a chemical in a product that serves an intended function or technical effect in the product or product component.”

An issue not addressed by the new law is the question of whether PFAS-containing products will need to be segregated from the general solid waste stream that is typically destined for landfills or waste-to-energy facilities. This will potentially become difficult to manage (and likely litigious) issue for waste haulers, landfill operators, and owners of waste-to-energy facilities.

This is a developing area of law that is constantly changing, but any manufacturer of apparel in the United States should stay abreast of the rules to ensure compliance with various state regulations related to PFAS.

Harris Beach’s experienced PFAS attorneys are monitoring all developments in this arena. If you have any questions about the matters in this Legal Alert, please contact attorney Gene Kelly at 518-701-2740 and gkelly@harrisbeach.com, attorney Kelly Jones Howell at 212-912-3652 and khowell@harrisbeach.com, or the Harris Beach attorney with whom you most frequently work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.

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