At the beginning of the year 2022, two courageous women from the state of New York, senator Alessandra Biaggi & Anna R. Kelles, set out to do something bold. Having spent the last decade observing the growing effects of climate change on the planet and fashions' impact on these numbers, they decided to take matters into their own hands. With that, the New York Fashion Act (NYFA) was born.

What is the New York Fashion Act?

This proposal sponsored by the two politicians aims to address some of the issues which have plagued the fashion industry for decades now. If passed, the bill would require any and all fashion retailers operating in the state and generating a global revenue of over $100 million to map at least 50% of their supply chain. They then would have to set Science Based Targets to reduce their environmental impact. This is significant because fashion is notorious for its infamous lack of transparency. Conduct due diligence to identify partners with a high environmental impact i.e. chemicals used, waste output & carbon emissions. They would also be required to disclose the amount of recycled materials used and have that information verified by a third party. Nonetheless, this is a step in the right direction that both environmental critics as well as members of the industry have been saying is highly needed. Especially since fashion has essentially been largely self-regulated up until now.

It does so by building on many of the different regulations that have preceded it, however, the NY Fashion Act aims to go further than its predecessors by attempting to combine several different key issues and tackle them under a single bill. Examples of the topics covered range from environmental targets to workers’ wages. Failure to comply would result in brands being fined 2% of their annual income. Enforcement would fall to the state’s District Attorney who would then publish a list of non-compliant brands to the public but we have yet to see if public shaming will be enough. The proposal still has earned some praise for its potential broad-reaching impact.

Despite this praise, the NYFA has not been immune to critique with several individuals sharing their concerns about the bill’s failings and potential negative impacts on the environment. We’ll be looking at a variety of different perspectives in an attempt to deconstruct the NYFA and understand its potential positive and negative effects on fashion at large.

Reach & Thought Leadership

New York City is often referred to as one of the fashion capitals of the world alongside Paris, Milan & London. This means that the outcome of this bill could potentially have implications worldwide. Furthermore, the structure of the bill targets all businesses with commercial activities in the state. This means it would simultaneously target US-based giants such as GAP and Tapestry but also international fast-fashion powerhouses like Shein and Inditex (Zara, Massimo Dutti, Pull and Bear, …). This is an important detail as brands like Shein would also be required to comply even without physical stores so long as they sell their products in the state.

New York’s status as a fashion capital means that the bills that the state decides to pass could carry a lot of weight elsewhere. Maxine Bédat, director of the New Standard Institute, a key drafter of the bill claims that she has already started receiving messages from other states in the U.S. who would potentially be interested in replicating the bill. This goes to show the importance of this bill especially since interest could spread internationally.

However, this adds additional pressure for it to be as robust as possible as loopholes present within this legislation could spill over into international bills and allow fashion brands to continue to exploit the planet and their workers.

Change & Enforceability

As mentioned earlier, the NY Fashion Act would require brands generating at least $100 million in revenue to publicly disclose at least 50% of their supply chains and impacts like emissions and chemical output. These brands would then be required to set Science Based Targets to help them reduce their environmental impact. In terms of worker protection companies would be required to disclose the median wages of their workers as well as the policies in place to ensure that responsible business practices are taking place. Failure to do so will result in fines for the offending brands. The fines levied would then be amassed into a fund aimed to pay for climate justice projects in New York.

This is a good step forward as the NYFA attempts to regroup important components that have existed separately under a singular bill. However, when examined more closely it becomes apparent that this bill still leaves a lot to be desired.

The first glaring issue with the NYFA is its current lack of apparent enforceability. Although the bill asks brands to disclose 50% of their supply chain, nothing specifies exactly which 50% they should be disclosing. They are currently encouraged to “focus on areas with the greatest social and environmental risks” What this basically means is that companies will be able to pick and choose exactly which aspects of their business they want to map out. This includes steps end of the line assembly process done by garment workers, the collection of raw materials by farmers, and everything in between. This is a problem because it will likely lead them to disclose the areas that are easiest to map out and those that make them look the best. This is something that any person with common sense would logically do. Asking brands to focus on areas in need of greatest improvement is all good and well but it isn’t a concrete solution. Bill makers need to create measures against those high-risk elements in order for companies to implement change in a consistent and fair manner. After all, if all we needed to do was ask fashion brands to reduce their impact, we wouldn’t need this bill in the first place.

“Beyond that, after simply asking brands to map out and publicly disclose parts of their supply chain, the NYFA fails to get them to do anything specifically after that. There isn’t a means for the state of NY to force brands to make any changes to reduce their impact as of yet. The bill aims to address the industry’s lack of transparency and would simply require brands to report in a more public manner. This does not necessarily mean that the problems highlighted will get solved. While it is a great first step, the NYFA needs to be more ambitious and aggressive to herald true change for the fashion industry. “As with all well-meaning regulations and standards, the devil is in the details, and the enforcement.” Says Céline Semaan, founder of the Slow Factory Foundation.

The NYFA also fails to address another critical issue, forcing brands to be accountable for the damages they cause. The bill currently does not contain clauses that would make brands responsible for countering the environmental damages they’ve caused during production. Essentially, the NYFA currently only requires brands to disclose information on their supply chain but not necessarily improve their sustainability. Therefore, it is mostly focused on communication rather than taking action.

After disclosing this information, these brands will be asked to set “Science Based Targets” to reduce their environmental impact. However, it’s unclear if and how this will be monitored. As it currently stands, the bill does not oblige brands to act on these targets or attempt to hit them meaning that it lacks enforceability beyond a call for greater transparency. In an open letter to Senator Biaggi and Assemblywoman Anna R. Kelles, a coalition of many human rights & fashion organizations (including but not limited to: The Human Rights Watch, Fashion Revolution & War on Want) called the bill “far weaker” than other measures currently in place in Germany, France and other countries Read this blog, to find out more about greenwashing in the fashion industry. They also called for the state to take “strong action” to make fashion a more ethical and responsible industry.

The fines accrued as a result of non-compliance to the disclosure policy would go to a fund to finance environmental justice projects in the state. While this is all well and good as climate justice projects anywhere are a positive thing, it does not help the communities that were actually harmed during the process. Nor does it incite fashion brands to change their current model to protect their workers.

“Fining brands 2% of their turnover may be too lenient since these fines would likely cost less than making actual improvements to the supply chain.” Niki de Schryver

Creating Bad Habits

Whilst the NYFA bill is coming from the right place and a desire for change within the fashion industry, it has to potential to encourage brands to adopt some bad habits. In the short film “The Monster in Our Closet”, Maxine Bédat (in partnership with Patagonia) discusses the impact of the industry as a whole and the importance of finding alternatives to our current approach to consumption. Through its nature, the bill encourages brands to opt for recycled materials when choosing fabrics for their garments. Recycled polyester being one of their materials. During the short film, Bédat and several members of Patagonia’s design team praised the brand for developing ways to lift polyester out of disadvantaged communities. And while this is a great thing, they fail to address the reality of recycled polyester releasing more microplastics into nature, some of which can end up in our bodies. According to Niki de Schyver, founder of COSH! “On top by creating a pull demand on PET bottles, they are giving the plastics industry an excuse for making single use plastics and selling it in countries where recycling schemes hardly exist.” You can read more about it here. This is a temporary band-aid solution when the industry should be focusing on using renewable materials that are preferably biodegradable so they won't contribute to environmental pollution that will never break down

Besides that, to achieve better performance, brands will be required to conduct research into sustainable materials and productions to create better and less environmentally impactful garments. The issue is that a lot of the primary data being used for sustainability research is flawed and unreliable. The use of these indexes might end up just propagating incorrect information and making the result worse. One example of this is the Higg MSI (Materials Sustainability Index) which is one of the most popular in the industry, and has recently been shrouded in doubt concerning its reliability. It was even ruled unfit for use in Norway by the Norwegian Consumer Agency over concerns that it could lead to spreading false information. These flawed primary research sources need to be properly addressed before significant amounts of brands are forced to use them and end up worsening the industry's problems. This should be achieved through vigorous and accurate scientific research and data collection from environmental scientists & experts.

Missing Seats at the Table

Another glaring issue with the bill as it currently stands is the lack of diversity in the drafting room. BIPOC (Black Indegenous People Of Colour) communities are more disproportionately affected by climate change and are routinely exploited to create fashion garments. However, they were barely represented when the bill was initially being drafted. This is an important issue because because without the appropriate representation taking place at this critical stage, the NYFA will fail to effectively address the issues these groups are most concerned about.

Garment workers for example are one of the most important gears in the fashion industry but are often overlooked when it comes to laws targeting the industry. They are as important as any other player in the sector and their voices deserve to be heard. Inviting them to the drafting process would allow new perspectives to be brought forward while also ensuring that this community’s primary concerns are addressed in a way that is appropriate and effective.

An increase in diversity could also strengthen the bill. Different voices and perspectives being invited to voice their opinions could mean that more flaws in the act could be pointed out before it gets passed. It could reduce the number of potential loopholes that brands will be able to take advantage of in the future. And at the end of the day, the people who are in the room drafting the bill will determine who that bill will be able to serve. In the case of fashion the most vulnerable players, which are often workers of color, deserve a seat at the table if the bill ever intends to effectively address the issue of this group.

Closing Comments

The New York Fashion act is an extremely ambitious project that has the potential to change the face of the fashion industry and bring forth a new approach to addressing climate change. Many professionals in the industry also agree that a bill like this was desperately needed. But to make sure it is as beneficial to the industry as possible, a few kinks will still need to be ironed out.

Certain experts claim the act isn’t as ambitious as it could be since it focuses on reinforcing existing standards in the industry instead of setting new ones. Although beneficial, the inclusion of the climate justice project fund may also be a bit problematic. Helping fund those types of projects is great and should be encouraged, but how are they helping the actual communities that were taken advantage of in the first place?

Publically listing and shaming the non-compliant brands will not stop the poorest & most vulnerable households from relying on products that are still made under slavery or polluting conditions. Niki de Schryver

The bill is currently still being shaped but it will be interesting to stay on the lookout for who will be contributing to the process. Hopefully, more BIPOC communities and garment workers will have the opportunity to voice their concerns and needs. COSH Opinion: it could allow more greenwashing because it enables brands to only highlight the 50% better side of themselves. They can stay silent about the rest. A lot of hopes for the future rides on this legislation and it’s great that it even is on the table for now. But before celebrating too much it is important that the bill is first properly strengthened and manages to get passed.