AAFA Pushes Back on Washington State’s Proposed PFAS Regulations

As lawmakers across the country seek to protect their constituents from the impacts of forever chemicals, the American Apparel and Footwear Association (AAFA) says states should shoot for legislative consistency.

The trade group this week weighed in on a Regulatory Determinations Report drafted by the Washington Department of Ecology for the state legislature, meant to elucidate the provisions of the Safer Products for Washington law. Passed in 2019, the four-tiered legislation is among the most stringent and wide-ranging restrictions on toxic chemicals passed in any state. Cycle 1.5, Implementation Phase 3 of the law will see the adoption of reporting requirements and restrictions on intentionally-added PFAS, or per and polyfluoroalkyl substances, in apparel and gear.

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“We are actively supporting members in their efforts to phase out this chemical class, including by working to educate and support the entire supply chain in finding and utilizing safer PFAS alternatives,” AAFA president and CEO Steve Lamar wrote in a letter to the Washington Department of Ecology this week. “Still, regulation plays a critical role in furthering our industry’s efforts, but only if regulations are designed properly, serve their purpose, and are properly enforced.”

AAFA believes “adding to an increasingly complicated patchwork of state-based regulations” could become needlessly burdensome for the industry, which is already working to phase PFAS out of its products. The trade group added the entire PFAS chemicals class to its open-industry Restricted Substances List in February 2023, and brands and retailers like REI, Dick’s Sporting Goods and Patagonia have pledged to remove PFAS from their assortments.

Influential markets like California and New York have enacted their own legislation that restricts the use of PFAS additives to textiles, apparel and footwear, with enforcement beginning in January 2025. Vermont has followed suit, and is currently considering a law that “mirrors” those successful measures. “Given existing restrictions in two of the largest U.S. markets, brands are retailers are treating the restrictions as though they apply to the entire United States,” Lamar explained. “Thus, an additional state-level restriction on PFAS in apparel is unnecessary.”

If Washington is determined to strike out on its own with regard to implementing PFAS restrictions, the AAFA lead believes it should refine the law’s language to account for industry concerns and create clear, decisive guidelines.

For one, “sell-through language is necessary,” he said. There are strict sales prohibitions included in the legislation that don’t account for the time the industry needs to phase out PFAS-laden products. There will be high volumes of unsold stock when the implementation date of Jan. 1, 2025 rolls around—and there’s currently no directive for their proper disposal. As such, AAFA recommends a provision that will allow brands to sell through any products manufactured before that date.

“Allowing existing inventory to be sold off provides additional time for identification of safe destruction methods before consumers are finished with the product,” Lamar added.

Additionally, the Department of Ecology’s definitions of products covered by the law, and those that are exempt, should align with the precedent set in other states, he believes. Washington’s proposed legislation covers “apparel and gear,” which is too broad a designation, according to AAFA. It also doesn’t apply special designations for products like personal protective equipment, items used by the U.S. Defense Department, and outdoor apparel made for severe wet conditions, which see exemptions or relaxed enforcement in New York and California. Firefighting PPE is currently covered under the Washington law. Deviating from what has been established would create compliance issues, Lamar said.

Science-based testing thresholds are another necessity not currently addressed by the legislation, he added. “While existing restrictions focus on intentionally added PFAS, unintentional contamination is a significant concern,” Lamar said. “It is crucial that any restrictions include a science-based safe harbor level to account for contamination.”

With the industry largely committed to phasing out the class of chemicals, Lamar questioned the prudence of the legislation’s mandate that brands report on their PFAS progress on an ongoing basis. “By the time a requirement is enacted, what will be left to sell is dwindling quantities of legacy inventory,” he said. There are also significant limitations to testing in its current forms. No approved testing methodology can currently identify the presence of thousands of PFAS chemicals in a consumer product, and the Environmental Protection Agency (EPA) has not approved any testing method for consumer goods.

Maine was the first state to pass a similar PFAS reporting requirement law for product manufacturers in 2021. While reporting was originally set to begin on Jan. 1, 2023, the law was amended to extend the statutory deadline to Jan. 1, 2025 because of difficulties implementing its regulations.

As the industry moves to embrace circularity, Lamar said testing exemptions should be made  for used or repaired products. Materials, components and products made with recycled content will also be tough to test if the law requires, adding additional costs to use inputs that are already more expensive than virgin versions. “Requiring testing will inhibit uptake of more sustainable options,” Lamar said. “Products utilizing recycled components should be able to disclaim the use of intentionally added PFAS from the point of recycling forward and be exempt from reporting requirements.”

Finally, Lamar called upon the Department of Ecology to help brands and manufacturers identify alternatives to PFAS chemicals, which provide durable water repellent (DWR) finishes that are essential to the function of some products, like outerwear. The department identified materials that can provide some water resistance using weaving technologies, but those options may not always be suitable alternatives. PFAS-free non-fabric components like trims, too, will need to be identified moving forward.

The Department of Ecology is required to make an initial set of regulatory determinations on covered products by June 2024, and adopt those rules by December 2025.