Bans in California and New York on textile articles and apparel containing per- and polyfluoroalkyl substances (PFAS) will take effect January 1, 2025. That same day, Colorado will commence its phased approach to prohibit PFAS in outdoor apparel for severe wet conditions, starting with a PFAS disclosure requirement. While an increasing number of states contemplate legislation and regulations addressing PFAS in textile goods and apparel—whether that be product bans or reporting and disclosure requirements—the size of the California and New York markets will likely impact national strategies for these types of products.
At a minimum, businesses that manufacture, distribute or sell textile articles or apparel would be well served by diligently monitoring the growing patchwork of prohibitions and requirements.
California’s Assembly Bill (AB) No. 1817[1] prohibits the manufacture, distribution, sale, or offer for sale of any new textile articles containing regulated PFAS within the state beginning January 1, 2025. Textile articles are broadly defined as textile goods that are made in whole or in part from natural, man-made, or synthetic fiber, yarn, or fabric and ordinarily used in households and businesses, with the following list of examples:
“Regulated PFAS” is broadly defined in the law as either PFAS intentionally added to a product for a functional or technical effect by the manufacturer, or PFAS present in the product at certain threshold levels. As of January 1, 2025, the threshold is set at or above 100 parts per million total organic fluorine within the product or product components. That threshold then drops to 50 parts per million total organic fluorine on January 1, 2027. Textile manufacturers will also be required to use the least toxic alternative when removing regulated PFAS from textile articles.
While the list of textile products covered by California’s PFAS ban is expansive, there are some categories of products that are excluded from the definition of covered goods, including:
The ban also does not take effect for outdoor apparel for severe wet conditions until January 1, 2028; however, beginning January 1, 2025, outdoor apparel for severe wet conditions containing PFAS must be accompanied by a legible and easily discernable disclosure with the statement “Made with PFAS chemicals.”
As of January 1, 2025, manufacturers will also be required to provide distributors or sellers in the state with certificates of compliance stating that the textile articles do not contain any regulated PFAS. A distributor or retailer will not be held in violation of AB 1817 if they relied in good faith on this certificate of compliance. Please refer to our previous LawFlash covering California’s PFAS prohibition for more information.
The California Department of Toxic Substances Control (DTSC) is the lead agency responsible for interpreting and enforcing the state’s PFAS textile ban. In connection with this program, DTSC is required to publish a list of accepted testing methods and appropriate third-party accreditations for laboratories by January 1, 2029, with registration and reporting requirements for manufactures to begin by July 1, 2029. DTSC can begin enforcement starting July 1, 2030, including levying notices of violation and monetary penalties reaching no less than $10,000 for the first violation, and penalties assessed daily for continuing violations. The California Attorney General may also pursue injunctive relief on behalf of DTSC.[2]
Effective January 1, 2025, New York Bill S1322/A994[3] prohibits the sale or offer for sale within the state of any new apparel containing intentionally added PFAS.
“Apparel” as defined in this law includes clothing items for formal and regular wear such as undergarments, shirts, pants, skirts, dresses, overalls, bodysuits, vests, dancewear, suits, saris, scarves, tops, leggings, leisurewear, formal wear, outdoor apparel, onesies, bibs, and diapers. The prohibition does not apply to outdoor apparel for severe wet conditions until January 1, 2028, and excludes professional uniforms like personal protective equipment altogether. The law also requires the New York Department of Environmental Conservation to set an enforceable numerical threshold level for PFAS in new apparel by January 1, 2027, regardless of whether such PFAS are intentionally or unintentionally added.
Violators of the law may incur civil penalties up to $1,000 for each day the violation continues and up to $2,500 for a second violation, as well as be enjoined from continuing the violation. Although the New York law does not include an affirmative duty on the part of the manufacturer to supply a certificate of compliance, manufacturers should nonetheless anticipate having to provide distributors and sellers with a certificate of compliance for their products, particularly since sellers will not be held in violation of the statute if they relied in good faith on the written assurance of the manufacturer that the product(s) meet the requirements of this section.
Beginning January 1, 2025, Colorado[4] will prohibit the sale, offer for sale, distribution for sale, or distribution for use in the state of outdoor apparel for severe wet conditions[5] containing intentionally added PFAS unless the product contains a “Made with PFAS chemicals” disclosure. This restriction will be repealed on January 1, 2028, at which point all outdoor apparel for severe wet conditions and textile articles primarily used in households and businesses, including accessories, apparel, backpacks, and handbags, containing intentionally added PFAS will be banned. The disclosure requirement and prohibition apply to any intentionally added PFAS that has a functional or technical effect on the product.
New Year’s Day is quickly approaching, and with it, the obligations under these bans. Distributors and retailers would be well served to seek certificates of compliance from manufacturers in advance, and manufacturers need to assess the potential for PFAS in textile articles and apparel in order to implement a compliance strategy in advance of the upcoming effective date of the bans.
Looking ahead, New York and California’s bans, and Colorado’s severe wet weather outdoor apparel restriction, are among the first (and more rigorous) state-driven efforts to regulate and restrict PFAS in apparel and textile goods. Starting in 2026, several states are poised to roll out similar PFAS prohibitions in textile articles, including Maine, Vermont, Rhode Island (starting in 2027), Colorado (starting in 2028), and Connecticut (for apparel, starting in 2028). Other states are implementing PFAS disclosure requirements for apparel and outdoor apparel for severe wet conditions, including Connecticut (starting in 2026) and Rhode Island and Maine for outdoor apparel (starting in 2029).
Several states also have pending legislation implementing PFAS prohibitions, including for textile articles in New York, apparel in Washington, and textiles in Massachusetts, Illinois, and Tennessee. Businesses should monitor this growing patchwork of regulations and be prepared to comply with state-specific requirements, including each state’s distinct compliance requirements and potentially differing definition of “textile article,” “outdoor apparel for severe wet conditions,” and “apparel.”
Finally, businesses should remain aware of additional exposure beyond textile products, as more state prohibitions and disclosure requirements are set to be effective starting in 2025 (and are already in effect in several states) for other goods, like juvenile products, cookware, and cosmetics.
Our lawyers stand ready to advise businesses on these upcoming PFAS prohibitions, assisting them in ensuring their practices comply with these significant and novel requirements.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following:
[1] Codified in California Health & Safety Code §§ 108970 and 108971.
[2] See California AB No. 347, amending California Health & Safety Code Div. 104, Part 3. (Sept. 24, 2024).
[3] Codified in New York Environmental Conservation Law §§ 37-0121 and 71-3703.
[4] Colorado Senate Bill 81, codified in Colorado Revised Statutes §§ 25-15-601 to 25-15-605.
[5] Colorado, New York, and California have similar definitions for outdoor apparel for severe wet conditions, which generally encompass extreme and extended use products designed for “outdoor sports experts” for applications that provide health and safety protection against extended exposure to extreme rain or against extended immersion in water or wet conditions like snow and that are not marketed for general consumer use.