Engage Early and Often to Protect Brand Reputations

By Dave Johnson, Phylmar newsletter editor

Protecting the credibility of a business’s reputation and the integrity of its safety and health values can be reactive or proactive. Most reputation hits that make national and international news are unexpected safety and health-related incidents that catch companies unprepared. Exhibit A: A door plug blows off a Boeing 737 Max 9 jet at 16,000 feet during an Alaska Airlines flight on January 5, 2024. The Federal Aviation Administration grounds approximately 170 Max 9s for inspections.  Boeing’s CEO exits at the end of 2024, as part of a broad management shake-up. Business travelers’ trust in Boeing drops 26 percent. Passengers on the flight filed lawsuits against Boeing, Alaska Airlines and the door plug manufacturer, claiming injuries and emotional distress. Within days, shares of Boeing tumbled nine percent on Wall Street.

But potential threats to safety and health reputations, especially for corporations producing popular consumer goods, are often targeted years in advance. Concern about the alleged health effects of PFAS – per- and polyfluoroalkyl substances – has been making news for decades. Dubbed “forever chemicals” due to their persistence and accumulation in the environment and the human body, PFAS help fabrics repel water, resist stains, and make products more durable. More than 12,000 types of PFAS exist, according to the U.S. EPA. Proposals in the U.S. Congress aimed at banning PFAS chemicals in consumer products have all failed. Still, a number of companies – the focus of this article is on textile apparel and footwear brands – have already voluntarily phased out PFAS (Benneton, Levi’s, H&M, UGG, Polartec, Keen and others) or plan phase-outs by 2025 (Patagonia, Columbia, Dick’s Sporting Goods, REI and others) when laws in US States like California restricting them in apparel and footwear come into force.

Act early and often

“Companies need to engage early and often with lawmakers and track developments in real-time to ensure they can stay ahead of and comply with new chemical restrictions,” says Nate Sponsler, director of the Apparel and Footwear International RSL Management (AFIRM®) Group https://afirm-group.com/. AFIRM’s mission: to reduce the use and impact of harmful substances in the apparel and footwear supply chain. AFIRM is one of three membership forums of the Phylmar Group®, which supports environmental health and safety/sustainability professionals through the forums, its training academy and consulting services https://www.phylmar.com/.

Tracking textile chemical legislative developments for industry groups such as AFIRM and individual corporations requires multi-faceted stakeholder monitoring and both “clear the air” discussions and diplomatic negotiations. Trips to state capitals are frequent. States are picking up the slack from Congress regarding PFAS. California’s governor signed the Safer Clothes and Textiles Act (AB 1817) in September, 2022. The law calls for a partial ban on PFAS in textiles (with a limit on organofluorine compounds) taking effect on January 1, 2025, followed by a stricter ban in 2027. New York passed a law in December, 2023, banning the sale of apparel containing PFAS also by January 1, 2025.

“Of course brands want to comply with regulations banning PFAS, but the timeframes are unreasonably short, companies are scrambling to comply, and there will probably be non-compliant products remaining on store shelves without extended transition periods or sell-through provisions,” says Sponsler. “We engage with lawmakers all the time. The goal is meaningful regulations that are feasible, with reasonable timeframes, and validated analytical test methods to confirm compliance. Otherwise, companies can’t comply and regulators can’t enforce.” In collaboration with other trade associations, AFIRM has successfully prolonged the transition periods of several new PFAS state-level restrictions – but work is ongoing in California and New York.

Addressing NGO concerns

Public health issues such as PFAS also require ongoing discussions (often more difficult conversations) with non-governmental organizations (NGOs) such as the Natural Resources Defense Council (NRDC), Breast Cancer Prevention Partners and Clean Water Action – all of which sponsored California AB1817 – and NGOs PIRG, Toxic Free Future and Safer States.  In 2022, NRDC, Fashion FWD and U.S. PIRG Education Fund gave major outdoor retailer REI an “F” for its incomplete commitment to phase out many PFAS. A nationwide campaign, “REI, time to opt-out of PFAS,” led by the Mind the Store program of Toxic-Free Future, Safer States, PIRG and other organizations delivered more than 130,000 signatures from consumers urging REI to commit to action on PFAS. Petition signatures grew to more than 150,000. In February, 2023, REI committed to phasing out PFAS from its gear by 2026.

Lobbying for passage of California AB 1817, the NRDC released a public survey indicating that 78 percent of Californians favored banning PFAS in clothing and textiles. But if potential health effects of PFAS are not explained to the public and directly brought to its attention in high-pressure petition campaigns such as used against REI, how much pressure do consumers exert on manufacturers and retailers? “The average consumer is not paying attention,” says Sponsler. “The issue is too technical, and most members of the public have no bandwidth to understand the nuance involved.”

Some consumers may be educated by eco-journalists such as Alden Wicker, author of “To Dye For,” a book on the damaging effects of chemicals used in clothing. Tracking negative media reporting is another pre-requisite to protect brand reputations.

Global strategies

California is the world’s fifth largest economy, making its PFAS ban a de facto global standard for many global brands, says Sponsler. Major brands are multinationals, making protecting reputations an international effort.

France and Sweden submitted a proposal to the European Chemicals Agency (ECHA) in 2019 to restrict the use of skin sensitizing substances in clothing, footwear and other articles with similar skin contact. Five years later, the European Union (EU) still has not acted on the proposal. Brands have repeatedly questioned the breadth and consequences of the proposal in Brussels, headquarters of the EU. If enacted, the sensitizer restriction proposal would automatically ban more than 1,000 chemicals used in textiles and leather in three years’ time. The deadline is too short, industry counters, stating it usually takes about five years to substantially remove a widely and intentionally used chemical or chemical group from global textile and footwear supply chains, especially when dealing with so many new restrictions concurrently.

Another debate: just how extensive are potential sensitizer health effects? The ECHA claims up to 180,000 new sensitization cases are estimated to occur every year in the European Union. But Sponsler says individual AFIRM members can count the number of customer skin complaints received over the past decade on one hand. Major global brands do not become household names by putting unsafe products on the market, he says.

Regulatory unintended consequences

The law of unintended consequences also comes into play. “If the proposal goes forward, the sensitizer restriction would ban widely used dyes with excellent safety records. In their place, industry would be forced to turn to alternative chemicals with less well understood hazards and less well-established safety records, increasing the likelihood of regrettable substitutions,” says Sponsler.

If enacted, the sensitizer proposal could put textile recyclers out of business, industry claims. Mechanically recycled textile products intentionally make use of legacy dyes classified as sensitizers in their chemical preparation form that the proposal would ban. Sale of secondhand garments, often many years old and containing the same legacy dyes found in recycled garments, are exempt from the proposed restriction, however. According to Sponsler, this creates a paradox where recycled garments meeting a higher chemical safety standard are banned from sale while secondhand garments meeting a lower chemical safety standard are not.

A regulatory tsunami

A global bombshell for textile and footwear brand reputations looms on the horizon. In 2022, five EU member states proposed to ban some 10,000 individual PFAS to the ECHA. It would be the most extensive ban in European history.

“Chemical safety is getting more attention than ever. So many regulations are coming down in the textile industry space,” says Sponsler. “It’s an absolute explosion of restrictions.” Little wonder many brands are adding to their government affairs departments and industry officials shuttle back and forth between Europe and the states. Whether it is strategic proactive brand reputation protection (a necessity say industry experts) or a hasty reactive rear-guard action, protecting brand reputations is a multi-layered, time-consuming, expensive proposition. The alternative? To be shut out of regulatory rulemaking negotiations, out of compliance with new rules, and potentially out of business.