Footwear containing PFAS targeted by states, EPA, private litigants

PFAS have long been touted for their unique resistance to water, heat, oil, stains, and grease—giving them wide utility in products like footwear that, depending on their design and purpose, may need to brave muddy trails, bloodborne pathogens, or the hazards of an oil and gas rig. But according to the CDC, PFAS do not break down in the environment, can percolate through soil into groundwater, and tend to bioaccumulate in fish and wildlife.[1] Because of these potential risks, states and the federal government are regulating businesses that use PFAS through use restrictions and reporting requirements. In addition, private litigants are targeting apparel and footwear companies with false advertising allegations relating to PFAS. The result is a complex and quickly evolving regulatory and litigation landscape facing manufacturers that use or have used PFAS.

California Apparel Law

California’s textile-articles law prohibits the manufacture, distribution, or sale of textile articles containing intentionally added PFAS in California beginning January 1, 2025.[2] The definition of “textile articles” is broad and reaches “apparel,” which in turn includes all footwear other than that constituting personal protective equipment or that made for the exclusive use of the U.S. military. The law covers textile articles in which either (1) PFAS has been intentionally added to “have a functional or technical effect in the product” or (2) the total organic fluorine (“TOF”) in the product exceeds a certain threshold.[3] Specifically, the TOF thresholds in California will be set at 100 ppm starting January 1, 2025, with a step down to 50 ppm starting January 1, 2027.

California’s law includes several exceptions. Most prominently, it contains a delayed phase-in for “outdoor apparel for severe wet conditions,” which has an intricate definition: “outdoor 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.”[4] The statute gives as examples of such products “outerwear for offshore fishing, offshore sailing, whitewater kayaking, and mountaineering.”[5] The manufacture, distribution, and sale prohibition for outdoor apparel for severe wet conditions begins on January 1, 2028; however, even before then, textile articles containing PFAS must be clearly labeled as “Made with PFAS chemicals” starting January 1, 2025.

In addition, the California law requires that manufacturers that remove PFAS from their products “use the least toxic alternative.”[6]

New York Apparel Law

New York recently amended the state’s PFAS apparel law, pushing back the start date and adding more detail.[7] Starting January 1, 2025, New York will prohibit the sale and offer for sale in the state most apparel containing intentionally added PFAS. But the state’s ban on “outdoor apparel for severe wet conditions,” adopting California’s definition of the same nearly verbatim, would begin on January 1, 2028. Among other things, the New York law also creates a civil penalty of $1,000 per day of the first violation, or $2,500 for each day of the second violation, and provides that violations can be enjoined (i.e., a company can be ordered to stop selling).

One thing to note: There is some ambiguity as to whether the New York law even applies to footwear. “Apparel” is defined as “clothing items,” though—unlike in California—“footwear” is not explicitly listed within the definition. The plain meaning of “clothing items” might nevertheless be read to include footwear. But interestingly, a pending New York bill, SB 5648, proposes to regulate PFAS in footwear, perhaps suggesting that at least some lawmakers understand New York’s apparel law not to reach footwear.[8] The state has not provided clarity on this issue.

Maine Reporting Law

Maine was the first jurisdiction to mandate that consumer product manufacturers report any PFAS in any of their products.[9] Beginning January 1, 2023, product manufacturers must provide written notice to the Maine Department of Environmental Protection (“DEP”) regarding any products that contain any intentionally added PFAS. The notice must include a description of the product, the purpose of using PFAS in the product, the amount of each type of PFAS in the product, as well as manufacturer contact information. The sale of any products containing PFAS in Maine without reporting subjects the product manufacturer to potential civil penalties.

The reporting law has been fraught with difficulties in its implementation. Although a third draft rule is out for comment,[10] Maine DEP has not finalized its reporting regulations. The agency has extended the reporting deadline by six months after the agency finishes its rulemaking (estimated in May 2023) for companies that sought an extension from the agency. Companies that did not obtain an extension must apparently begin reporting now, even though Maine DEP has not provided a platform to submit such reports or final direction on what test methods will meet the state’s requirements.

Several bills are being considered that would delay the effective date and otherwise restrict the scope of the reporting law. In March, Maine legislators introduced a bill to amend the reporting law by limiting the set of PFAS covered to exclude polymers like Gore-Tex, among other things.[11] And in May, several Maine legislators indicated in a work session that the legislature would push the reporting date to January 1, 2025 and permit reporting by TOF.[12] Footwear companies should continue monitoring legislative developments in Maine to understand their compliance obligations moving forward.

Children’s Footwear

Footwear designed for children may be subject to additional regulations. California has adopted a prohibition on children’s products containing intentionally added PFAS that begins on July 1, 2023.[13] Colorado will similarly ban the sale or distribution of children’s products that contain intentionally added PFAS chemicals starting January 1, 2024.[14]

Other state-level PFAS regulations are focused on reporting:

• Vermont has added several PFAS to its list of Chemicals of High Concern to Children, requiring manufacturers to comply with reporting requirements if their children’s products contain those PFAS.[15]
• Oregon is requiring products manufacturers to report PFOS in children’s products, and to remove PFAS from products that are mouthable, or in children’s cosmetics, or made for or marketed to children under three years old under the state’s Toxic-Free Kids Act.[16]
• Washington’s Children’s Safe Products Reporting Rule requires manufacturers to complete Chemicals of High Concern to Children reporting for PFOS and PFOA in children’s products.[17]

EPA Data Call

At the federal level, EPA is working to finalize a proposed PFAS reporting rule that will impose new and substantial recordkeeping and reporting costs. The proposed rule would require U.S. manufacturers of any product containing PFAS and U.S. importers of any articles containing PFAS to investigate and certify to EPA the amount of all PFAS that they have manufactured or imported into the United States for the past 12 years (beginning January 1, 2011).[18] EPA estimates industry-wide compliance costs to be up to $876 million and up to $1.8 million for each manufacturer or $224,000 for each article importer.[19]

Environmental Marketing

Recently, a growing risk for apparel and footwear companies has been challenges to their environmental marketing. Green marketing provides an opportunity to tap into consumer demand for products that do not harm the environment. But green marketing is also a potential minefield. Consumers are becoming increasingly sensitive to green claims made with varying degrees of certainty—also known as “greenwashing.” Dozens of suits alleging the greenwashing of products containing PFAS have been filed in the last two years.[20]

To illustrate, in a suit against REI, class-action plaintiffs challenged the following representations about various waterproofed products that they alleged contained PFAS:[21]

• “[W]ith every purchase you make with REI, you are choosing to steward the outdoors, support sustainable business and help the fight for life outside.”
• “Sustainable gear built to last.”
• “At REI, we’re working toward a sustainable future, for the planet and communities around the globe. We’re excited to announce the release of the REI Product Sustainability Standards, which will help us raise the bar on product sustainability at REI and across the outdoor industry. It will also make it easier for our members to buy products that support their sustainability values.”
• “REI has eliminated long-chain PFAS DWR treatments from the REI Co-op brand. We use short-chain PFAS treatments where viable alternatives do not yet exist, and we continue to expand the use of non-fluorinated options.”
• “[M]ade in a Fair Trade Certified factory.”

The suit against REI is still pending. But in the meantime, REI has voluntarily committed to requiring almost all textile products supplied to it to be free of PFAS by Fall 2024 and outdoor apparel for severe wet conditions—under the California definition—to be free of PFAS by Fall 2026.[22]

Beyond PFAS, apparel and footwear companies are similarly being targeted with false-advertising suits relating to representations about carbon emissions, recyclability and compostability, sustainability, and more.[23]

Conclusion

The PFAS regulatory environment is continuing to develop. States remain the primary regulators in the consumer products space, and pressure for federal action will almost certainly grow. As more information becomes available through research and media about PFAS in products, litigation risk will grow as well. With the long timelines from design to market, apparel footwear manufacturers face unique challenges to comply with this shifting regulatory landscape.

Article prepared by AAFA 2023 Footwear Workshop Sponsor, Marten Law LLP . Authored by Victor Xu (May 11, 2023). Learn more at aafaglobal.org/footwear23. #AAFALacesUp

[1] https://www.cdc.gov/biomonitoring/PFAS_FactSheet.html

[2] Cal. Health & Safety Code § 108970 et seq.

[3] Cal. Health & Safety Code § 108971.

[4] Cal. Health & Safety Code § 108970(d).

[5] Cal. Health & Safety Code § 108970(d).

[6] Cal. Health & Safety Code § 108971(b).

[7] N.Y. Env’t Conserv. Law § 37-0121.

[8] https://www.nysenate.gov/legislation/bills/2023/S5648

[9] 38 M.R.S. § 1614.

[10] https://www.maine.gov/dep/rules/index.html

[11] https://legislature.maine.gov/legis/bills/getPDF.asp?paper=SP0495&item=1&snum=131

[12] Pat Rizzuto, Concerns Over Maine PFAS-in-Products Law Prompt Changes, Bloomberg (May 10, 2023), https://news.bloomberglaw.com/environment-and-energy/concerns-over-maine-pfas-in-products-law-prompt-lawmaker-changes.

[13] Cal. Health and Safety Code Section 108945.

[14] Colo. Rev. Stat. § 25-15-601 et seq.

[15] 12-5 Vt. Code R. § 54; 18 V.S.A. § 1775.

[16] Or. Admin. R. 333-016-2001 - 333-016-3080.

[17] Wash. Admin. Code 173-334-010 et seq.

[18] Toxic Substances Control Act Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances, 86 Fed. Reg. 33926 (proposed June 28, 2021) (to be codified at 40 C.F.R. pt. 705). The rule also covers manufacturers and importers of PFAS chemicals or chemical mixtures containing PFAS.

[19] U.S. EPA, Initial Regulatory Flexibility Analysis and Updated Economic Analysis for TSCA Section 8(a)(7) Reporting and Recordkeeping Requirements for Perfluoroalkyl and Polyfluoroalkyl Substances at 1 (2022).

[20] See, e.g., Class Action Complaint, Gruen v. Clorox Co., No. 3:22-cv-935 (N.D. Cal. Feb. 15, 2022); Class Action Complaint, Spindel v. Burt’s Bees, Inc., No. 3:22-cv-01928 (N.D. Cal. Mar. 25, 2022); Class Action Complaint, McDowell v. McDonald’s Corp., No. 1:22-cv-01688 (N.D. Ill. Mar. 31, 2022); Class Action Complaint, Rivera v. Knix Wear, Inc., No. 5:22-cv-02137 (N.D. Cal. Apr. 4, 2022); Class Action Complaint, Lupia v. Recreational Equipment, Inc., No. 3:22-cv-02510 (N.D. Cal. Apr. 25, 2022); Class Action Complaint, Walker v. Keurig Dr. Pepper, No. 2:22-cv-05557 (E.D.N.Y. Sept. 16, 2022); Class Action Complaint, Humphrey v. J.M. Smucker Co., No. 1:22-cv-06913 (N.D. Cal. Nov. 4, 2022); Class Action Complaint, Bedson v. Biosteel Sports Nutrition Inc., No. 1:23-cv-00620 (E.D.N.Y. Jan. 27, 2023); Class Action Complaint, Winans v. Ornua Foods North America Inc., No. 2:23-cv-01198 (E.D.N.Y. Feb. 14, 2023).

[21] First Amended Class Action Complaint, Krakauer v. REI, No. 3:22-cv-05830 (W.D. Wash. Jan. 27, 2023).

[22] https://www.rei.com/assets/stewardship/sustainability/rei-product-impact-standards/live.pdf.

[23] https://www.martenlaw.com/news-and-insights/can-orange-juice-claim-to-be-green