"Labor and Sustainability Orgs Propose to Strengthen New York’s Fashion Act", 14 January 2021

Dear Senator Biaggi and Assemblywoman Kelles,

We congratulate you on the unveiling of New York’s Fashion Sustainability and Social Accountability Act (The Fashion Act)...

As a coalition of labor and human rights advocates and organizations working closely on issues connected to the fashion industry, we are concerned that this bill falls short of what is needed to protect people and the environment from the multiple harms caused by the sector...

Our primary concern is that the Fashion Act focuses primarily on disclosure. As such, brands will only be held accountable for failures to report, not failures to actively identify, prevent, mitigate and account for adverse impacts on people and planet on an ongoing basis, as set out by the UN Guiding Principles and OECD Guidelines and Guidance. It furthermore places no requirements on companies to provide for or cooperate in remediation for harms they cause or contribute to where appropriate. Liability, likewise, is only for failure to report. As it stands, this renders the Fashion Act far weaker than recent legislation passed in California (SB62), France and Germany and puts New York behind instead of ahead of the curve.

We know from failed policies like the UK Modern Slavery Act that disclosure bills often do not drive corporate accountability or protect human rights and the environment. While collecting the information outlined in the bill may be useful for civil society, that information does not easily or directly translate into direct improvements in the lives of garment makers and their communities or work to reduce environmental destruction. As currently written, the bill would allow brands and retailers to report limited to no progress on their climate change or human rights goals, for example, and be in compliance.

...we strongly encourage you to gather more stakeholder input when amending this bill, from this coalition and beyond. In particular, before moving forward, we implore you to consult more closely with the most affected communities, as well as labor rights and environmental organizations, including unions in the U.S. and globally...

We would welcome a meeting with your office to discuss important initial recommendations for amendments, including...

Strengthened labor data
The current labor disclosure data needs to be expanded and strengthened. Data requests in the bill...rely on brands and retailers self-reporting and setting their own targets, which has stalled progress on human rights for over thirty years. We propose collecting metrics that are more in line with what labor leaders and human rights experts recognize as useful...

Companies must perform rather than report on due diligence.
The bill does not as worded ask companies to perform due diligence; it asks them to report on due diligence procedures. What’s more, it does not sufficiently hold brands and retailers accountable. The current accountability section includes penalties for failures to report on impacts, goals, and due diligence, but does not include any penalties for harm caused by, contributed or linked to a brand or retailer, or for failing to meet the targets that brands and retailers set....This places the bill far behind mandatory human rights due diligence (mHRDD) legislation passed in France (Duty of Vigilance), Germany and Norway, legislation currently under consideration in the EU, and California’s Garment Worker Protection Act. For progress to be made, we must hold the industry accountable for due diligence failures and for harms that companies cause or contribute to...

Companies must perform environmental and human rights due diligence Companies should not just report on due diligence processes. They should be required to actually perform due diligence on their supply chains, including identifying, preventing, mitigating, and accounting for potential adverse impacts, in line with the OECD guidelines and UNGPs.

Clear liability on brands and retailers for harms caused not just a failure to report
In line with France’s Duty of Vigilance Law and the European Parliament’s blueprint for a due diligence directive, the bill should be amended to include civil liability not just for a failure to report on impacts but for human rights and environmental harms caused or contributed to through brands’ and retailers’ own operations (via subsidiaries) across the whole value chain, including all direct and indirect business relationships, upstream and downstream.

Joint liability on brands and retailers for wage theft
In line with the California Garment Worker Protection Act (SB62), a joint liability clause that holds both brands/retailers and manufacturers accountable for wage theft in their supply chain and minimum wage violations for New York state’s 10,000 garment workers should be added in the bill. As written, there are no incentives or protections for New York’s own manufacturing base. Expanding this protection to workers in the international supply chain in alignment with labor unions work across Asia is strongly recommended.

Remediation for garment and supply chain workers
The community fund outlined in the bill gathers fines for failure to report on human rights and environmental impacts globally. The draft bill indicates that community funds would be directed to supporting environmental justice efforts in NYC. This is not in keeping with international human rights standards, which require that funds collected for business human rights failures go back to victims themselves:

• ...emediation should be understood broadly, to include money damages, where appropriate, and reparative or injunctive relief, where appropriate.
• ...non-compliant companies should be ordered to channel money remedies to victims, wherever they may be in the world and wherever they may be located within the supply chain.
• ...non-compliant companies should be ordered to clean up or offset whatever environmental damage they have caused or contributed to...

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