Vol. 52-2 Waste

Waste

How the Law Regarding Fashion Waste is Developing

Waste in Fashion

When people think of environmental issues, they often first think of climate change. The fashion industry is often overlooked. However, the environmental footprint of fashion is gaining recognition around the world, starting in West Europe. 

“Fast fashion has become the dominant mode of production and consumption” in the fashion industry.[1] The industry consists of three stages: take (the harvesting of raw materials), make (the production of garments), and waste (the wearing and subsequent disposal of garments).[2] The waste generated can be split into two categories, “(1) pre-consumer wastes (such as fiber, yarn, and fabric processing wastes, in addition to the sewn product manufacturing wastes), and (2) post-consumer wastes or end-of-life clothing wastes (discarded at the end of clothes’ useful life).”[3] This waste includes unsold clothes and fabric chemical processing.[4] 

Clothing production and consumption has environmental impacts including land pollution due through fertilizer and pesticide use, water pollution resulting from clothing dyes, air pollution as a by product of the toxic gases that produced during manufacturing, marine pollution due to microfibers that are generated when washing clothes, and biodiversity loss due resulting from fabric particles polluting in the ocean.[5] 

It has been found that the “fashion industry emits 1.2 billion tons of greenhouse gases; releases half a million tons of microplastics into the sea, uses 132 million tons of coal, 900 million cubic meters of water, and a quarter of the world’s toxic chemicals.”[6] “130 billion garments are produced annually, of which 80 billion are sold, yet less than a single percent are recycled.”[7] Further, textile waste is a primary contributor to the rapid depletion of land-fill capacity.[8] The fashion industry effects not only 4% of global carbon emissions, but also impacts water resources, land pollution, and animal biodiversity loss. 

French Law

            France passed an anti-waste law in 2020 that bans designer clothes and luxury goods companies from that destroy unsold or returned items.[9] It requires “producers, importers and distributors, including online firms such as Amazon, to donate unsold non-food goods except those that post a health or safety risk.” [10] This law was put into effect on January 1, 2022.[11] One issue associated with the definition in the French Consumer Code is that the luxury brand’s biggest markets are in the U.S. and China, both of whom do not have bans. “In addition, the Consumer Code has been modified to strongly encourage sale without packaging (bags or other types or containers), or with reusable containers. Retail businesses with a sales area of more than 400 million in revenue, have an obligation to make reusable packaging available to consumers.” [12]

Further, France passed a carbon score law to introduce “mandatory labeling of goods and services.”[13] “According to a set of data released by L’Agence de la Transition é Cologique, the fashion industry is the second largest source of pollution in the world, with an average consumption of 2,700 liters of water per T-shirt (equivalent to 70 showers) and 11,000 liters of water per pair of jeans (equivalent to 285 showers).”[14] France‘s 2021 policy also establishes requirements for labeling and a ban on advertising relating to the marketing or promotion of fossil fuels starting in August 2022. [15] This policy attempts to prompt companies to provide more sustainable products by empowering consumers to make informed decisions regarding the impact of their purchases on the environment. 

France also enacted one of the world’s first laws regarding greenwashing. The law prohibits the inaccurate “use of any wording on a product, its packaging, or in advertising promoting a product or service, indicating that the product, service, or activity of the manufacturer is carbon-neutral or has no negative impact on the climate.”[16] It establishes a legal framework through which companies can be held accountable for misleading claims regarding environmental impacts. Fines can include up to “80% of the false promotional campaign cost, a correction on billboards or in the media, and a 30-day clarification on the company website.”[17] 

State of California

While the United States has yet to pass any legislation directed at the fashion industry’s impact on climate change, California and New York are beginning to indicate an interest in such regulation. Although not directed at the fashion industry’s environmental impact, California has recently enacted legislation designed to curb other harmful practices of the industry. California’s Senate Bill 62, the Garment Worker Protection Act, was signed into law on September 28, 2021. This bill was designed to cover up a loophole in AB 633, enacted in 1999, which “was praised for its aim to prevent wage theft in California’s sweatshop-infested garment industry, the home of the vast majority of garment manufacturing in the U.S.”[18] A major loophole was that it focused on individuals who have been damaged, “by failure of a garment manufacturer, jobber, contractor, or subcontractor to pay wages or benefits”; the acts of a retailer were exempt and that is how many companies were able to bypass the rule.[19] SB 62 states that all garment workers should earn an hourly wage, not less than applicable minimum wage, instead of what was in practice before, workers earning money for what each item of clothing they produce.[20] “A 2016 study by the UCLA Labor Center found that Southern California garment workers earned an average of $5.15 an hour, less than half the minimum wage at the time.”[21] The burden is now be shifted to brand guarantors, contractors, and garment manufacturers to show they did not violate wage laws.[22] 

This new law holds fashion brands legally responsible for the harm done for employees’ unpaid wages and for the manufacturing industry production in general. Garment worker working conditions in California are characterized as terrible. Tzul, a worker in California, described it by stating, “In the summer it’s like hell, and not to mention the steam from the iron is suffocating. It’s hard to describe how it is.”[23] Further, when COVID-19 was at its peak, the factory is full of workers who work in close quarters and cannot work from home. Not only does this law attempt to introduce more regulations on the fashion industry and hope to prevent excess production in manufacturing, but it helps workers’ rights and in recognizing humanity of the workers, “who helped build the fifth-largest economy of the world.”[24]

While not directed at the environmental impacts of the fashion industry, this legislation signals that the state of California is monitoring the industry and is willing to act to mitigate perceived harmful practices. This could foreshadow legislation similar to that recently enacted in France. 

State of New York 

            Assembly Bill A8352/S7428, Fashion Sustainability and Social Accountability Act (Fashion Act), was introduced in New York state on January 7, 2022. If passed by both the Senate and House, it “would require transparency of at least 50 percent of the goods sold from raw materials to shipping regarding their environmental impact.”[25] This would be the “first state in the country to pass legislation that will effectively hold the biggest brands in fashion to account for their role in climate change.”[26] The bill would require companies to disclose where they have the biggest social and environmental impact, make plans to reduce their environmental impact, and disclose their material production volumes.[27] Companies would have 12 months to comply with mapping the 50 percent of the goods sold, 18 months for impact disclosures and, if found to be in violation, would be fined up to 2 percent of their annual revenues.[28] These fines would go to a new Community Fund, used for environmental justice projects in New York, and the attorney general would publish an annual list of companies found to be noncompliant.[29] 

            This legislation reflects the first government regulation of the environmental impact of the fashion industry in the United States, and could serve as a model for other states to follow.

Assessment of Recent Regulatory Action  

California, New York, and France are major producers of clothing. A recent study assessing major national initiatives promoting sustainable fashion anticipates that the different bodies of legislation will have different results. New York State’s regulation is likely to have a large effect on waste treatment and use of secondary raw materials, and a moderate effect on reduction with the source (waste minimization), garment production, and garment design. [30] The California SB 62 bill is likely to have a large effect on garment production and is likely to have a moderate effect on reduction within the source (waste minimization).[31] The French law banning destruction of unsold clothing takes the tie for lead, likely to have large effect on waste treatment and reduction within the source (waste minimization) and likely to have a moderate effect on fashion consumption, garment design, and use of secondary raw materials.[32] Both the New York law and France’s law are likely to have a large effect on 2 out of 6 categories and are likely to have a moderate effect on 3 out of 6, with a total for both of moderate to large effects in 5/6 categories (California bill has a 2/6 moderate and large effect). 

Environmental Concerns and Ways to Help Make a Change

            Typically, the environmental impact of low-cost clothing is not felt at the location of purchase but the location of where the clothing is produced, buried, or incinerated.[33] 

            One way to make a change would be making the broad policy choice to impose a carbon tax on the industry. Conceptually, a carbon tax would be “specifically focused on the greenhouse gas emissions released into the air, establishing a direct connection between the tax and the damage to the environment.”[34] With respect to the fashion industry, such a policy would likely target, “the fashion corporations responsible for greenhouse gas emissions in their production process, rather than a tax applied directly on consumers, notwithstanding their carbon contribution.”[35] Such a policy would incentivize garment makers’ greater use of sustainable practices.

Consumers are the other half of the equation. A study by Sustainability noted that educational campaigns to reduce consumption, among various policy alternatives, are likely to the highest positive impact.[36] Once consumers are more educated on what shapes fashion waste, they are more likely to participate in campaigns such as the “pay up” campaign,[37] a successful consumer-driven campaign that was “created in response to the refusal of fashion corporations to pay textile factories for goods.”[38]  This refusal to pay occurred when the epidemic, COVID-19, hit Europe and the US. During this time is when fashion corporations chose to cancel pre-crisis orders, forcing “factories to incur 40 billion dollars in losses.”[39] “[T]hrough social media, many corporations have pledged to pay for orders…and returned to the factories a total of USD 27 billion.”[40]

Fashion regulation is in its infancy in the US, and, on a broader public level, fashion waste is an emerging environmental concern. For the most part, new laws are of relatively limited scope, applying only to certain companies. The New York bill, for instance, would apply to companies with at least “$100 million in sales annually to include luxury giants LVMH, Kering; American mass producers like PVH, fast-fashion behemoths H&M and Zara parent company Inditex and sports giants Nike and Puma.”[41]. The fashion industry lacks the targeted regulation of other industries with similar environmental footprints, such as chemicals manufacturing. While these two newer laws in the US and the ones in France are helpful, they are most remarkable for the fact that they reflect a new era of likely much larger legal landscape to manage the environmental impacts of the fashion industry, a landscape in which consumers are likely to play a significant role.

Claudia Gutierrez is a rising 3L from Harlingen, Texas. She attended the University of Texas at Rio Grande Valley and joined TELJ her first year of law school. She hopes to work in environmental law upon graduation and has been fascinated with environmental concerns about the sea level rise and increased temperatures in the RGV. Additionally, she will be interning with Save our Springs Alliance during the summer of 2022.

Amanda Halter is managing partner of the Houston office of the international law firm of Pillsbury Winthrop Shaw Pittman, a member of the firm’s Environmental & Natural Resources practice section and co-leader of the firm’s Crisis Management team. Amanda helps companies resolve environmental liabilities and negotiate compliance conditions, as well as manage financial and reputational losses associated with a crisis. Her experience includes a diverse array of environmental regulatory, litigation and crisis matters, including contamination investigations and remedial actions, natural resource damages assessments and claims, environment, health and safety compliance counseling, mass toxic tort actions, permitting and planning for large-scale industrial projects, and project impacts mitigation and restoration strategies. Amanda is a native of Houston, a graduate of Rice University and The University of Texas School of Law.