Fast fashion – slow regulation: how regulators struggle to keep up

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When we head to the shopping mall or (increasingly) shop online, buy our clothes, and get dressed every morning, most of us probably aren’t thinking about regulation. But, what if you found out that new jacket you’re donning, or the new purse you’re holding, has potentially harmful chemicals in them – harmful to us, harmful to our children, and/or harmful to the environment? The first thought is likely, how are companies allowed to put this stuff in our clothes? Aren’t there laws against this?

The answer is that when it comes to potentially harmful substances, the regulation is not obvious or straightforward – particularly in the clothing industry, which doesn’t face direct regulation. When and where the clothing industry has faced regulation – for example, in the form of employment and labour standards – manufacturers, producers, sellers, etc., have escaped much of it by moving certain operations overseas where such considerations are not paramount. Of course, how we regulate complicated, multi-jurisdictional supply chains is a huge topic unto itself and certainly also top of mind during the global pandemic, but we will leave that aside here.

As it stands now, the clothing industry is not directly regulated, but several substances that are found in consumer products are. Laws and regulations around many substances can be found all over the world, with some countries maintaining stricter standards than others. Two commonly regulated substances are DDT, which is banned in approximately 34 countries, and asbestos, which is now banned in approximately 67. Interestingly, asbestos was only banned in Canada in 2018 (with exceptions) and it is not banned in the U.S., at least at the federal level. But these are just two more widely known substances that have been proven to cause harm to either ourselves, the environment, or both. There are so many more.

In terms of chemicals or other substances found in clothing, there are regulations around certain substances such as lead and phthalates. Taking lead as the first example, most of us would recognize lead as a harmful substance and would be right to assume there is regulation around it. Health Canada, a department of the federal government with an overarching mandate “to protect Canadians from potential health hazards in consumer products,” is the main body responsible for regulating harmful substances in Canada. Indeed, Health Canada has an entire webpage devoted to lead, which mainly deals with lead in products directed at children. Lead is not specifically banned because it exists everywhere, so Health Canada has adopted a Lead Risk Reduction Strategy for Consumer Products specifically for children’s products.

Health Canada regulates clothing through CPSA; U.S. regulates at both federal and state level

For the clothing industry, the most direct regulation in Canada is under the Consumer Product Safety Act (CPSA), administered by Health Canada. In the U.S. there is both state and federal regulation, much of it at the state level. California, for example, has very strict requirements for allowable substances and labelling.

As the U.S. has much more of a patchwork system, looking at the CPSA is a useful lens to demonstrate how regulation in this space operates. The CPSA applies to manufacturers, importers, sellers, advertisers, testers, and packagers (which we’ll collectively refer to as ‘relevant parties’ here) of any consumer products for non-commercial use/consumption. Although not explicit, this includes clothing.

While the CPSA contains a schedule of some outright banned products, it does not speak to the banning of any specific substances. The act contains a multitude of regulations about standards for a specific group of products – only one speaks to clothing – as textiles and pertains to flammability. There is another regulation around phthalates – a group of chemicals often used to make plastic more flexible and of which many are considered endocrine disruptors – chemicals that can interfere with hormones. The regulation speaks to the allowable limits of phthalates in children’s toys but does not speak to clothing. Health Canada has proposed to ban DEHP (just one type of phthalate) in all products bought and sold in Canada, but this hasn’t yet been implemented.

CPSA prohibits products deemed hazardous to human health or safety

In addition to the individual regulations that restrict or ban specific chemicals, the CPSA prohibits any of the relevant parties to manufacture, import, sell, etc. a product that is a “danger to human health or safety.” The CPSA goes on to define the concept of “danger to human health or safety.” Here are the key elements of that definition:

  • Hazards posed by a consumer product captured are those that are unreasonable;
  • Hazards can be existing or potential;
  • The hazards are posed in, or as a result of, the products’ normal or foreseeable use; and
  • The hazard may reasonably be expected to have an acute or chronic adverse effect on health, either immediately or longer term, and includes death.

Health Canada orders product testing and incident reporting, but compliance unclear

The CPSA speaks to Health Canada’s ability to force any of the relevant parties to test products or compile and provide any documentation that Health Canada deems necessary. Relevant parties are required to maintain certain documentation (at all times) regarding the entire supply chain of any given product.

What is not clear is how or if compliance is sufficiently monitored within this framework. There is no information on Health Canada’s website about how often or under what circumstances Health Canada compels a company to test products or disclose documentation.

The CPSA also requires mandatory incident reporting, but this is left up to the relevant parties named in the act. There is no specific complaints process, but it appears Health Canada would consider information received from other sources. However, most everyday consumers do not have the ability to know whether any of their clothing contains harmful substances, and there is no readily available information about how many reports are received every year from relevant parties that they can consult.

Health Canada can issue recalls and order companies to comply with the recall. If a company does not comply, Health Canada can issue a Notice of Violation (NoV), which can result in fines. According to its website, the last NoV was issued in 2017.

Chemicals in products, including clothing, negatively impact the environment

There is also the effect some of these chemicals may have on the environment throughout the supply chain. Many of these chemicals, like lead or phthalates, can leach into the water supply during production, or even when we wash our clothes.

So, when a headline comes out in the media – keeping in mind media reports involving regulation rarely tell the full story – that certain fast fashion chains may be manufacturing, importing, selling, etc., clothing with potentially harmful substances in them, it’s hard not to wonder if this regulatory framework is sufficient. And, even if it is sufficient now, can it keep up with certain industries that are moving so fast and producing so much that regulation is only able to catch up rather than stay ahead of the curve? These are complex questions to answer.

It could be that the clothing industry specifically needs greater scrutiny, but how this would be accomplished remains to be seen. The European Union may be ready to take a big step with its Sustainable Corporate Governance initiative. While not specifically aimed at clothing, clothing companies would be captured by a new regulatory framework in which corporations are required to include sustainability practices in their business strategies.

So, as consumers, where does this leave us? Regulation is designed to protect us, but it does not cancel out consumer choice. However, consumer choice is increasingly complicated and confusing – is an individual expected to research every ingredient or material that goes into the items they buy? This just isn’t practical, as some ingredients or substances may not even be listed or recognizable. But given the seriousness of the possible health consequences – and the certain environmental impacts – that doesn’t mean we as consumers shouldn’t critically ask ourselves, “The price of this jacket is $10, but what is it really costing me?” We may look fashionable in the short term, but how will it all look in the long term?

And, as regulators, what does this story tell us? Even stories that are not explicitly about a failure of regulation do raise questions about regulatory competencies. As regulators everywhere, from government direct regulators to independent professional regulators, face greater scrutiny, it is important that regulators are seen as protecting the public, or, at the very least, equipped to address new and emerging issues promptly and effectively.

Regulators cannot always anticipate every new development. A regulator could have a licensee that has nothing untoward in their entire licensee history, but the regulator wakes up one morning to a story across the front page that a licensee has been arrested for serious crimes. The regulator will no doubt be faced with questions immediately and often some questions cannot be answered due to confidentiality. The important thing for regulators is that they are agile enough to respond quickly and appropriately.

In the case of the clothing industry at least, it seems both consumer choice and regulatory action are needed hand-in-hand to ensure a safe supply.

Cara Moroney is a lawyer with extensive experience in professional regulation in Canada. She combined her legal education and conviction for public protection to investigate cases of serious misconduct at the College of Nurses. She went on to lead the professional conduct department at the College of Kinesiologists of Ontario, and later brought her skills to the Law Society of Ontario as Compensation Fund Counsel. She currently leads the Enterprise Solutions Group at Thentia.

Thentia Cloud makes powerful
regulatory software to help you
manage your board. Learn more

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