Decoding the PFAS Puzzle: Strategies for Brands

The introduction of stringent per- and polyfluoroalkyl substances (“PFAS”) regulations has sent ripples through the luxury fashion and beauty industries. Known for their durability, PFAS are being phased out under various new laws across U.S. states. With some compliance deadlines having already passed and more looming, brands must reassess their use of these chemicals, balancing the demand for sustainability with the practical challenges of reformulating products and maintaining their market position. 

The following Q&A provides some perspective on how luxury fashion and beauty brands can navigate the PFAS regulatory maze … 

How do recent PFAS regulatory changes affect luxury brands and the broader fashion industry?

Luxury brands, especially for apparel and accessories, have relied on PFAS predominantly for its water-resistant and stain resistant properties. PFAS have also been used in beauty products for the purpose of preserving color, providing water resistance, and improving product application and have been used in products like foundation, mascara, eyeliners and lip gloss.

In recent years, new state regulations have been introduced, spearheaded by the state of California, to eliminate the use of PFAS in apparel and cosmetics within a fairly short timeframe. Currently, states like California and New York have set a deadline of January 1, 2025, for their general ban on the sale of apparel utilizing “intentionally added” PFAS. Well over a dozen states, including Colorado, Illinois, Maine, and Rhode Island, are also enacting PFAS regulations, with the ultimate goal of banning them in various products, including fashion, cosmetics, carpets, textiles, and other household items over the coming years. 

In the beauty sector, PFAS regulation is primarily state-driven. Federally, the EPA has regulated PFAS mostly concerning drinking water, while the FDA, through the Modernization of Cosmetics Regulation Act of 2022 (“MoCRA”) will now be able to collect information on PFAS in cosmetics via recordkeeping and ingredient listing requirements. By 2025, MoCRA requires FDA to issue a comprehensive report on the use of PFAS in cosmetics. In Congress, the No PFAS in Cosmetics Act proposes to amend the Federal Food, Drug and Cosmetic Act to specifically ban the use of perfluoroalkyl or polyfluoroalkyl substances in cosmetics.

It is the ambiguity of these regulations that have been of particular concern for luxury and beauty brands. At face value, they seem clear cut, but there are gray areas that need to be addressed in order for brands to successfully comply. For example, in California, questions have been raised about classifying the distinction between intentionally added PFAS and unintentional presence and how to differentiate these in products. Another example is the reference to juvenile products and to what extent apparel is included, for items such as children’s water-resistant ski jackets.

Lastly, there are questions about inventory after the January 1, 2025 deadline. It is of major concerns to brands and their distributors whether or not they will be permitted to sell down remaining inventory or be mandated to dispose of them. This also raises concerns for the disposal process of these “forever chemicals” and the precautions that must be taken to limit their exposure in landfills or groundwater. These issues leave many questions unanswered for brands that have broadly been at the forefront of embracing sustainability.

The most concerning aspect of these regulations for the fashion and beauty industry is their rapid rollout and the varying definitions at the state level. Despite these laws allowing a period for industry consultation, there remain critical questions that pose significant challenges for brands. Lobbyists have even found it difficult to define and apply these regulations, even with access to the regulators who introduced them.

In light of evolving PFAS regulations, what proactive measures should brands take to ensure products meet compliance standards while maintaining brand integrity?

Though PFAS are present in a variety of products, brands are increasingly taking steps to avoid being tied to the use of these forever chemicals. Brands are analyzing formulas and products to identify if they can be modified to exclude PFAS without compromising effectiveness. In some instances, brands have gone as far as conducting lengthy trials to determine if, for example, a water-resistant boots can have the same resiliency without PFAS to align with health and environmental codes. The signs are positive with brands having invested heavily to find viable alternatives.

In the beauty industry, brands are working closely with their upstream suppliers to determine whether and to what extent PFAS are “intentionally” added to their products and evaluating alternative formulation without such substances.

In addition to these efforts, brands should be working closely with legal counsel to monitor state and federal regulatory developments. It’s critical to understand the varying expectations and penalties associated with each relevant state law to ensure compliance and comprehend the broader impact the regulations will have on a brand’s product development. It should be noted that a number of state regulations allude to penalties but have yet to define them. Brands should work closely with suppliers to monitor PFAS in its supply chain and, where possible, prohibit use of PFAS in supplier contracts.

What are the potential legal ramifications for brands that fail to comply with emerging PFAS regulations?

While many brands are actively seeking to comply with these rapidly evolving regulations, the risks and enforcement parameters are still unclear. That said, the topic of PFAS has historically garnered significant attention, leading to massive class action lawsuits, even in the absence of specific regulations.  

The lawsuits often arise from claims of false advertising or breach of warranty, particularly when beauty and apparel brands market their products with terms such as  “clean” “safe”, “non-toxic”, or “environmentally friendly.” The use of these terms in advertising without specific definitions leaves the door open for interpretation of the ingredients in a product. For this reason, plaintiffs often argue that the presence of PFAS renders such claim false and misleading, though none typically allege that any bodily harm was caused.

For the most part, the courts have required plaintiffs to show evidence of PFAS the purchased products and found that clear definitions around “clean” and similar terms can undermine a plaintiff’s false advertising claims. Nevertheless, it still important for brands to work with counsel to close these types of gaps.

Adversely, these legal challenges are often well-reported and publicized, which can present brands with significant public perception concerns. Whether the brand intentionally or unintentionally advertised its products as “clean” or alluded to being PFAS-free, the litigation is often perceived negatively by the public and can alter consumer perception, raising questions about the brand’s integrity.

What are the emerging best practices for brands to mitigate risk?

Brands should proactively work with their legal counsel to address any potential vulnerabilities or critical errors that could lead to litigation. This includes staying up to date on legislation and regulations as they are introduced. More strategically, brands should avoid unqualified advertising claims, such as “clean” or “all-natural,” which can be easily challenged in court. If brands choose to use these terms, they should provide clear definitions. For instance, many cosmetic beauty brands define what “clean” means to their brand by explicitly listing the substances their products are free from on advertisements and packaging.

Another area of concern is the thorough vetting of manufacturers and suppliers for the use of PFAS. Brands should obtain certification from suppliers that their products are PFAS-free. While suppliers might provide documentation claiming they are PFAS-free, it is equally important for brands to conduct their own research and testing to ensure validity. Brands should request this certification at the start of the business relationship and include it in the contract.

It is unclear to what extent insurance policies can cover claims arising from the use of PFAS. However, the prudent advice for brands is to retain all policies, records and data. Retaining this data may prove crucial in the years to come.

The brands that act now, rather than waiting for regulations to be enacted, will be well-positioned to absorb these changes and mitigate legal risks as they arise. By working closely with legal counsel, rigorously vetting suppliers, and transparently communicating commitment to PFAS-free products, brands can navigate challenges while reinforcing their reputation for quality and sustainability.

Michael Barry is a partner at Loeb & Loeb. He represents European and U.S. fashion and luxury brands in all aspects of commercial and strategic matters.

Kristen Klesh is a partner in Loeb & Loeb’s Advanced Media and Technology department. Her practice is focused on Food and Drug Administration and Federal Trade Commission regulatory matters.