The groundbreaking New York bill that wants to hold fashion accountable for its environmental and social impacts is back with a few changes in response to industry criticism.
Following the Jan. 7 introduction of the Fashion Act (the Fashion Sustainability and Social Accountability Act), and after critical feedback from stakeholders, the lead sponsors, Assemblymember Dr. Anna Kelles, Sen. Alessandra Biaggi, both Democrats, and supporters have introduced amendments that clarify and strengthen Assembly Bill A8352, further ensuring that the language will accelerate a reduction in the industry’s global footprint.
“The introduction of the Fashion Act in Jan. 2022 has already had an important impact in shaping conversation and vocabulary in fashion, media and the consumer landscape. Given its significance and recognizing that this is a new space for policy, we are grateful that the sponsoring legislators took the time to hear feedback on the bill from all stakeholders interested in providing input,” said Maxine Bedat, director of New Standard Institute, a fashion sustainability think tank. “It is critical that all stakeholders have a say and it is a stronger piece of legislation as a result of this process.”
Since the close of the 2022 legislation session, supporters of the bill and proponents of the idea that regulation is a precursor to meaningful change have expanded their ranks to include labor leadership: Local 1102 RWDSU and Workers United, as well as leadership in the fashion industry including Patagonia, Eileen Fisher, Reformation and many others. The growth of supporters to include stakeholders from all aspects of the industry is intended to send a strong message to legislators that the apparel industry needs government oversight now.
“The fashion industry is responsible for 8 percent of global greenhouse gas emissions and has been permitted to operate unchecked by regulations,” Kelles said. “This bill is the first of its kind and would require that clothing brands not only map their supply chain but, most critically, would hold them accountable for any inhumane labor practices and environmental footprint embedded in their supply chains. It will introduce common sense protections to ensure transparency and accountability in a global industry that has existed outside the bounds of any comprehensive regulation or oversight.”
With the outcome of November’s mid-term elections, including the overwhelming support for Proposal 1, it appears that New York state is ready to step up and take a leadership position in addressing the existential issues embedded in consumer fashion products. In advance of the opening of the January 2023 New York State legislative session, the Fashion Act could be well placed to harness this momentum.
“The Fashion Sustainability and Social Accountability Act has been a collaborative effort amongst industry leaders, labor unions, environmental advocates and government leaders. I am proud that our sustained collaboration has led us to the amendments introduced today—strengthening the legislation to raise standards and ensure the greatest impact,” Biaggi said. “The Fashion Act is transformative and will allow us to work together to hold the fashion industry accountable for its environmental and labor impacts. I’m incredibly grateful to Assemblymember Kelles, my legislative colleagues and our partners for their tireless dedication and support, and I look forward to the passage of this important legislation next session.”
The Fashion Act intends to drive meaningful corporate accountability. It achieves this by requiring the attainment of concrete benchmarks and embedding this in a broader due diligence framework, which allows for additional corporate actions as risks and impact evolve. These requirements are coupled with clear requirements from state regulatory agencies and robust enforcement mechanisms.
Rather than creating duplicate standards that would lead to more reporting and less action, the act references and builds upon existing best-in-class initiatives, including Science Based Targets, Zero Discharge of Hazardous Chemicals (ZDHC), and the mandatory due diligence framework that the OECD originated, which is being applied in global legislation. The bill’s text makes these minimum requirements, which gives regulators room to add to and expand on these standards should they fall short of what the act aims to achieve.
“While the New York Fashion Act remains a work in progress, it is unquestionable that government action is required to fight the climate crisis and ensure those who work in our supply chains are protected,” Patagonia and Eileen Fisher said in a joint statement. “Consistent with our respective values and practices, Eileen Fisher and Patagonia support the spirit of the Act and the good work that is being done to strengthen the Act itself in anticipation of its introduction in the next legislative session.”
The due diligence requirements have been clarified to include the provision for fashion sellers not just to perform due diligence but adequate due diligence. This means that a company will be held accountable not just for disclosing the due diligence they are doing, but they will be required to perform their due diligence effectively.
The term “due diligence” is somewhat of a misnomer. The phrase, as it is colloquially understood, relates to actions that an individual or company takes to investigate another company or entity. In the Fashion Act, due diligence is not just about reviewing partners but critically is also about the fashion companies’ own role in addressing the impacts in their supply chain. The Fashion Act requires companies to effectively carry out due diligence, which includes: the actions taken to identify, prevent, mitigate, account for, and remediate actual and potential adverse impacts to human rights and the environment in their own operations and their supply chains.
“There has been a cognitive dissonance within the fashion industry as globalization led to lower prices but more and more distant supply chains,” said Adam Baruchowitz of Wearable Collections, a New York City company giving landfill-bound clothes and footwear a longer life. “This has allowed brands to benefit from global supply chains while pleading ignorance to the conditions by which their products were produced. The Fashion Act provides guidance for an incredibly inefficient industry and forces them to take responsibility for the entire process.”
It has long been recognized that adverse labor outcomes, including low wages and dangerous working conditions endemic to the industry, are born not just from bad actors in the supply chain but from fashion brands’ drive to reduce costs and speed up turnaround. To address this, the Fashion Act specifically requires companies, in doing their due diligence, to incentivize improved supplier performance by embedding responsible purchase practices, which is further delineated in both the bill text and in the referenced guidelines. If companies are not performing this effectively, the attorney general can fine these companies up to 2 percent of global revenue. Garment workers are further protected by joint and several liabilities; for example, they can bring a legal claim directly to the fashion companies for any lost wages.
“Fashion industry legislation is crucial for global system change. The responsibility and accountability for the industry to transition to a sector that values people and planet must include government and business,” said Kerry Bannigan, executive director of Fashion Impact Fund, which provides grants to female founders driving change in fashion. “Regulation should halt the destruction of the fashion industry and protect workers across the value chain.”
The Fashion Act requires companies to curb their climate impact in line with the Paris Agreement‘s call for a 1.5-degree Celsius reduction in carbon emissions. It utilizes the Science Based Target initiative methodology but goes a step further by requiring companies to integrate direct data capture to ensure that the focus remains on activities within their own supply chains.
The Fashion Act also addresses a significant area of pollution in the fashion industry: wastewater from textile processing. While several competing pieces of legislation seek to address residual chemicals on clothing, none zeroes in on how chemicals are used in the actual supply chain where the risk to biodiversity is greatest. The Fashion Act requires companies to, at a minimum, have their textile suppliers implement best-in-class wastewater treatment guidelines, which will go a long way toward cleaning up terrestrial, freshwater and coastal ecosystems.
“The supply chains for many of our most famous clothing brands are filled with egregious environmental pollution and labor abuse. It’s past time to hold these companies accountable in reducing their environmental and social impacts,” Democratic state Sen. Brad Hoylman said. “Sen. Biaggi’s Fashion Act will put power into the consumer’s hands to better know where their dollar is going and ensure brands they buy are complying with environmental and labor standards and continually minimizing their harmful practices. The Fashion Act is good for our planet, good for labor, and good for business.”
In consultation with the New York Department of Environmental Conservation and the NY Department of Labor, the New York Department of State is charged with developing rules and regulations to implement the bill’s provisions. It is also charged with developing educational materials for fashion sellers and assisting them to ensure that their actions are sufficient to meet the requirements outlined in the bill.
“In order to create the positive change we not only want to see, but need to see within the fashion industry we must have public/private collaboration and legislation to drive and incentivize responsible innovation, nature-positive business models and enable thriving communities,” designer Stella McCartney said. “The Fashion Act is a groundbreaking first step today towards this braver, better tomorrow—one in which the protection of Mother Earth, our fellow creatures and humans is woven into the very fabric of every decision.”