By Retail Dive
This article was published by Retail Dive July 5, 2022 and is part of a series on sustainability. Additional coverage from Retail Dive on sustainability can be found here.
Momentum is building to more forcefully regulate the industry, which has poor track records on workers rights and the environment.
The fashion industry has its ugly side, and policymakers can’t look away anymore.
Despite apparel manufacturers’ woeful record on worker safety and fair labor practices, and evidence of its damage to the environment, the sector has largely been left to supervise itself. The pressure for growth inherent in capitalism and for new items inherent in fashion seem like tall obstacles to overcome, but there’s no reason for either to remain unchecked, according to Kat Eves, a stylist who chooses ethically sourced clothing for her clients, including celebrities and CEOs.
“I could point to societal pressures to always have something new to show off on Instagram, or fast fashion’s heavy reliance on haul-level consumption and throwaway culture,” she said by email. “But in my view, fashion’s biggest sustainability issue comes down to a deeply unregulated industry that isn’t held accountable globally for the amount of waste and exploitation of people and resources it commits every day.”
Governments here and abroad are increasingly stepping up. In the U.S., laws proposed in New York and even Congress, and actually enacted in California, amount to a new trend in fashion, observers say.
“There’s been a sea change, just in the last two years to three years,” Elizabeth Cline, author of “Overdressed” and “The Conscious Closet,” said by phone. She is also director of advocacy and policy at Remake, which advocates for fair pay in the clothing industry and is developing a course on fashion policy as part of the Columbia University Climate School’s Sustainability Management Masters Program. “The fashion industry really was not on lawmakers’ radar, and now we’re seeing this wave of bills being introduced in the U.S. and in Europe and a smattering of other places.”
Fashion on its Own
Without much regulation, the apparel industry has been left to decide how to improve its record on human rights and the environment, and that’s had mixed results.
Some players seem reluctant to overhaul their practices even after catastrophe. Organizations like the Clean Clothes Campaign, for example, continue to report safety issues at factories in Bangladesh similar to those that led to the deadly collapse of a garment factory that killed more than 1,100 people. Yet, nine years after that tragedy, the organization is appealing to Levi’s, Ikea, Gap, Target, Walmart, VF Corp.’s The North Face and others to sign a legally binding agreement with trade unions that furthers safety in Bangladesh and beyond. H&M, Inditex’s Zara and Fast Retailing’s Uniqlo are among the 174 rivals that, at press time, have agreed to sign.
“The fashion industry really was not on lawmakers’ radar, and now we’re seeing this wave of bills being introduced in the U.S. and in Europe and a smattering of other places.” - Elizabeth Cline, Author, “The Conscious Closet” and director of advocacy and policy at Remake
When it comes to the environment, businesses also mostly self-regulate, with varying degrees of accountability. They become B Corps; work toward Climate Neutral certifications that require their operations to meet certain standards; develop products or packaging they claim to be environmentally friendly; and tie executive compensation to sustainability goals, among other steps. But in some cases, advocates have deemed their marketing mere “greenwashing” — that is, quite useful in appealing to concerned shoppers, but less so in addressing climate change, water quality or other environmental problems.
“You don’t solve societal pressures and norms with regulation and penalties, but fast fashion only survives and thrives in an unregulated, unchecked space,” Eves said. “More regulation, oversight, and accountability would make it very, very hard for fast fashion brands to continue business as usual.”
More Regulatory Oversight
There is increasingly more regulation, oversight and accountability of the industry, both here and abroad.
The U.S. Federal Trade Commission this year is set to update its “Green Guides,” rules developed in 1992 and updated periodically, which in part cover environmental marketing claims. Government entities in Europe so far have kept an even closer watch on such issues, according to Remake’s Cline.
Norway’s consumer watchdog agency earlier this month, for example, warned H&M that its use of the Higg Materials Sustainability Index, a tool to measure environmental impacts of materials developed by the Sustainable Apparel Coalition, an industry group of which H&M is a member, likely runs afoul of Norwegian laws prohibiting misleading marketing around sustainability.
“If we come across breaches of the Marketing Control Act from H&M in relation to environmental claims in marketing after 1 September 2022, we will consider if the criteria for imposing economic sanctions towards H&M are fulfilled,” the Norwegian Consumer Authority said in a June 14 letter to H&M, according to a copy published on its website.
“Fashion’s biggest sustainability issue comes down to a deeply unregulated industry that isn’t held accountable globally for the amount of waste and exploitation of people and resources it commits every day.” - Kat Eves, Ethical stylist
The move prompted the Sustainable Apparel Coalition to pause its program and enlist a third party to evaluate its index, according to a notice on its website that, in part, calls out the dearth of regulation.
“As an organization focused on driving positive environmental change in the fashion industry, we take the notification from the [Norwegian Consumer Authority] extremely seriously,” Sustainable Apparel Coalition CEO Amina Razvi said in the statement. “It is critical we seek to understand how to improve this work and act urgently and decisively to ensure the changes that are needed both in the industry and at consumer level are accelerated, and not delayed by the lack of harmonized legislation and clear guidance from regulators.”
The Rule of Law
Some experts see Norway’s strict enforcement as having a chilling effect on industry-led efforts, according to the Financial Times. But several authorities in Europe, including the European Union itself, are working on increased oversight of greenwashing claims and other sustainability requirements of the apparel industry, according to that report.
In the U.S., policymakers on both the state and federal level are working on a number of proposals governing the apparel industry, so far mostly focused on the plight of garment workers.
The Uyghur Forced Labor Prevention Act, passed by Congress in a bipartisan vote and signed into law by President Joe Biden last year, followed pressure from advocates who detailed reports of genocide and labor abuses by China against people of Uyghur ethnicity. The law prohibits the importation of goods “mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region of the People’s Republic of China” and took effect two weeks ago.
At home, also last year, California enacted Senate Bill 62, which outlaws piecework, guarantees garment workers a minimum wage and holds brands accountable, including for violations by their suppliers. That law is now the foundation of a federal bill introduced in May by Sen. Kirsten Gillibrand, D-N.Y., known as the ‘’Fashioning Accountability and Building Real Institutional Change” or “Fabric” Act.
“The Fabric Act takes the core elements of the California bill, and then builds on it and adds incentives for domestic manufacturing,” Cline said. “So that’s trying to submit the United States as a kind of hub of ethical and sustainable garment manufacturing.”
This trajectory can be ideal, according to Tara St James, vice president of supply chain, sustainability and culture at Another Tomorrow, a luxury DTC brand that follows sustainable practices and advocates for sustainable measures.
“We would like to see legislators working closely with fashion businesses and supply chain partners, trade organizations as well as human and animal advocacy groups to contribute to and refine proposed legislation so it is relevant to the industry,” she said by email.
Then there’s what has become known as “the New York Fashion Act,” a state bill to combat climate change by regulating the global fashion supply chain — seen even by some advocates as convoluted and unlikely to become law.
According to one of its sponsors, State Senator Alessandra Biaggi, the bill applies to global apparel and footwear companies with more than $100 million in revenues doing business in New York — encompassing high-end players like LVMH, Prada and Armani, as well as fast-fashion retailers like Shein and Boohoo.
They would have to identify at least 50% of their global supply chain, including farms that produce raw materials like cotton, factories and shippers, then disclose where they have “the greatest social and environmental impact when it comes to fair wages, energy, greenhouse gas emissions, water and chemical management, and make concrete plans to reduce those numbers.” They would also have to publish information online about the materials they use, including how much cotton, leather or polyester they sell.
It’s a well-intentioned proposal that is overly ambitious, jurisdictionally inappropriate and potentially detrimental to some of the constituencies it purports to help, according to Alan Behr, fashion industry attorney and partner at Phillips Nizer.
Among other problems, the bill fails to take into account how swiftly a brand’s supply chain can morph, with the passing year or even season, he said. Its establishment of a fund to address environmental justice issues would either make New York an arbiter of foreign aid, or, worse, siphon money that should benefit victims overseas into local projects. Chaos would ensue if more states were to pass such laws, Behr also warned.
“The simple fact is that the New York bill is aimed at international brands, and you simply cannot do that on a state level,” he said by email. “Not only does it need to come from the U.S. federal government; for it to have authentic global impact, it needs to be put into treaties among the leading nations consuming fast fashion.”
“We would like to see legislation raise the bar, demanding accountability and responsibility from all businesses who impact human and environmental issues in their supply chains.” - Tara St James, Vice president of supply chain, sustainability and culture, Another Tomorrow
The California Fashion Association has criticized New York’s proposal and the Fabric Act, saying they could have unintended consequences, while being unfair to apparel retailers and brands, and Eves acknowledged that the group has a point. “I wouldn’t say that they’re wholly wrong. But, this is not a risk versus reward issue, it’s a human rights issue,” she said. “I don’t think the bills deserve to be thrown out. I do believe that more work is needed to ensure that there’s success in the ultimate goal of making work in the garment industry safer, healthier, and fairer in the US.”
Cline agreed with much of this assessment of the New York bill, and said “it would need like a substantial amount of work to move forward.” But she also said it’s nevertheless contributing to the movement to increase scrutiny and requirements of the fashion industry.
“It’ll probably be reworked, and we’ll see some different version of it reemerge down the road,” she said. “I can imagine it being broken up into pieces — maybe we’ll see it resurface as just a climate bill or just a labor rights bill or just a transparency bill. There’s definitely momentum.”
What More Can Be Done
The problems with the New York Fashion Act underscore the need for action at the federal level, Behr and others say.
A nationwide accountability standard would likely be effective, he said.
“That is how the Foreign Corrupt Practices Act works, after all: you are restricted from doing abroad (say, in that factory in Sri Lanka) what you could never do at home,” he said. “That would result in a uniform, nationwide standard for compliance.”
Another Tomorrow’s St James said the company favors “federal legislation with the types of supply chain accountability and extended producer responsibility currently in discussion in the [European Union] used as a framework.”
Indeed, the industry itself maintains an important role in addressing these issues, both in helping develop legislation and in its own practices.
“We would like to see legislation raise the bar, demanding accountability and responsibility from all businesses who impact human and environmental issues in their supply chains,” St James said. “Doing business ethically should be the baseline for all companies. We have the potential to use fashion as a force for good for people and the planet. The fashion industry is at an inflection point and can no longer continue with business as usual. Legislation is one component that has the potential to drive that change, in addition to consumer engagement and brand level education.”