1. Patagonia Versus the Business Council of New York State on the Fashion Act
The Fashion Sustainability and Social Accountability Act
Originally proposed during the 2021-2022 Legislative Session, New York State Assembly Bill 2021-A8352, titled The Fashion Sustainability and Social Accountability Act, or known colloquially as the New York Fashion Act (NYFA), was designed to curb the fashion industry’s most unsustainable and inequitable tendencies. As written, the bill would require fashion retailers and manufacturers to “disclose environmental and social due diligence policies [and] establishes a community benefit fund for the purpose of implementing one or more environmental benefit projects that directly and verifiably benefit environmental justice communities” (The New York State Senate). Though proposed in the New York State Legislature, the bill would have had far-reaching, global consequences. The first of its kind, the bill would force any retailer doing business in New York exceeding $100 million in revenue to conduct mandatory due diligence across its supply chain. Non-compliant corporations would be required to mitigate and prevent future harm and could be subject to a fine worth 2% of their annual state revenue and be published on a list of noncompliant companies (Lisa, 2022). Additionally, the bill provided enforcement powers to state officials and was intended to provide clear guidance to the industry on acceptable standards (The Fashion Act). When the 2021-2022 session closed, lawmakers tried to improve the bill by clearing up any vague or undefined areas, and it has since been reintroduced (Lisa, 2022).
Up to this point, corporate environmental and social improvements have been addressed by voluntary programs and accreditations, resulting in a myriad of half-baked corporate social responsibility (CSR) programs and a dizzying number of accreditation schemes that corporations could choose to partake in. Because of the mandatory nature of this bill, its steep financial consequences, global scope, the bill quickly became a flash point. Perloff (2021) describes that for a flash point to occur, “an opinion climate built over time by activists, journalists, policymakers, and changing public attitudes.” Over the last decade, the fashion industry has received negative attention from several incidents, including the 2012 Tazreen Fashion factory fire, 2013 Rana Plaza collapse, and the 2021 rape and murder of textile worker Jeyasre Kathirvel. These incidents and their resulting lackluster mitigation measures outraged activists, and such issues became exacerbated by the COVID-19 pandemic (LeBaron et al, 2021). Thus, we can see that “the legislation is no small matter to the $2.5 trillion fashion industry” because of its far-reaching demands (Koshofer, 2024). Remake (Wicker et al, 2024) underscores this point through its assessment of 52 companies on indicators spanning various environmental and social issues, noting that out of 150 possible points, the average score was 14.
During a personal interview with Tess Bone (2023), Senior Director at Fontheim International, she added some additional context to this by relaying that historically, most corporations have only cared about environmental and social issues within their supply chains insofar as it affected their reputations. However, using the example of the United States Customs and Border Protection’s recent uptick in issuing Withhold and Release Orders for goods thought to be made with forced labor from Xinjiang, Bone (2023) argued that as governments have begun regulating these issues, corporations have borne the financial brunt of these legal impacts and have cleaned up their supply chains to make sure their imports are not seized. When contextualizing this against the NYFA, one can see how hugely expensive it would be to pay the proposed fines and clean up a brand’s supply chain to avoid regulatory action. Given this background, it can be surmised that fashion retailers and business associations generally oppose the bill, while climate, labor, and fashion activists support it.
Patagonia’s Response
Perhaps surprisingly to outsiders, Patagonia has been a vocal proponent of the NYFA. From its earliest days, Patagonia’s founder Yvon Chouinard (2016) has focused the company’s ethos on “[using] business to inspire and implement solutions to the environmental crisis.” This resulted in urging its customers to consider if they need their products before they purchase them (Patagonia, 2011) to working across the fashion industry to recruit more companies to become more environmentally responsible (Patagonia, 2023). While Patagonia is a successful business that draws consumers beyond its target audience of outdoorsmen, their messaging indicates that they do not care about following trends but instead care about producing quality products that create as little environmental impact as possible, while actively using their platform to promote positive change. They have repeatedly stressed that they will do the right thing, even if it proves more expensive and time-consuming, as can be seen by their choice to only use certified organic cotton and map their entire cotton supply chain to ensure traceability (Chouinard, 2016).
Understanding this background, Patagonia’s support of the NYFA is reasonable. They have long stressed that the fashion industry must change and that they cannot be the only company to act sustainably. When the NYFA was introduced, Patagonia was listed on the NYFA’s official website as a supporter (The Fashion Act) (Appendix, Exhibit 1) and expressed its support before the bill made it to session (Kent, 2022). Corley Kenna, Patagonia’s head of communications and policy, says that Patagonia supports the legislation because it is important to mandate compliance (Goth, 2023) (Appendix, Exhibit 2). Patagonia reaffirmed its support of the bill by sending a 2023 letter to Governor Kathy Hochul from CEO Ryan Gellert, arguing that it is key to reducing emissions and labor abuses in fashion supply chains (Patagonia, 2023) (Appendix, Exhibit 3). Environmental and social responsibility is not a reputational consideration, but a primary concern and consideration in any business venture for Patagonia.
By showing support for the bill at the executive level, in addition to its longstanding history of advocating for sustainability, Patagonia paints itself as a trustworthy corporation looking to make real impact. In both messages, Patagonia frames its support of the NYFA as a necessary compliance tool to create radical change across the fashion industry. Ryan Gellert writes “We know that Patagonia alone won’t solve the climate crisis — we need all companies in our industry to demonstrate serious progress on environmental and social issues, and to be held accountable for their claims.” Corley Kenna (Goth, 2023) reiterates this need for accountability, stating that “Most of the claims that companies make with regard to people and planet are voluntary, and there’s no enforcement, right?...With that, you get a lot of claims and not a lot of action.” The overarching theme of these messages show that the outlook for a sustainable future is bleak without the bill, but that by passing the NYFA, the fashion industry can achieve “scalable change and positive impact” (Patagonia, 2023).
These ideals align with liberal perspectives that protecting the environment and vulnerable population is a necessity (Bolte et al, 2024), and while many fashion consumers do not consider a brand’s sustainability efforts when shopping, the proportion of consumers who do consider this is increasing (Nosto, 2024). By supporting a regulation that could be unfriendly to a corporate entity, Patagonia signals to this audience that profits do not matter, and it is confident enough in its sustainability scores that it will remain unscathed by the bill’s passage.
The Business Council of New York State’s Response
On the opposite side of the political advocacy surrounding the NYFA stands the Business Council of New York State. Self-described as the leading business association for over 3,000 small and large companies in New York (“About the Business Council”), it acts as a political advocate for companies. As a business association, its views are formed by its members, and it is therefore unlikely that they would endorse any legislative action that could result in significant operational overhaul or financial burden for the companies it serves. The Business Council was originally founded in 1914 as the Associated Industries of New York State (AI) to devise a response to recently enacted labor laws (“About the Business Council”), arguing that such legislation would be unfavorable to business (University of Albany). Archival materials show that “The general goal of Associated Industries was to restrict government involvement in business affairs” (University of Albany), though in its modern iteration at the Business Council, they have reframed their edict as working towards “a healthier business climate, economic growth, and jobs” (“About the Business Council”).
Anecdotally, many fast fashion retailers oppose the proposed legislation, but it is difficult to find any brands that will do this openly. As explored above, retailers are most cognizant of any reputational harm that could befall their companies, and openly stating opposition to a bill that frames itself as righting an ethical wrong would be damaging. Instead, they rely on business associations, such as the Business Council of New York State, to provide criticisms. In an official statement from April 2023, The Business Council argues that while it “understands the need for corporate social responsibility and sustainability; however, it must be accomplished in a way that is not harmful to businesses” and that the bill could force retailers and suppliers to disclose sensitive business information and potentially violate confidentiality agreements. (The Business Council, 2023) (Appendix, Exhibit 4). Most importantly, it argues that the bill is superfluous, and its standards are “unattainable,” labelling the environmental standards as “unnecessary” because brands are already working to comply with another environmental protection law and have internal CSR programs. The Business Council’s Vice President of Government Affairs Ken Pokalsky further articulates that “’You can have ambitious goals, but it has to be done in a workable way. And you have to be giving a New York state business something they can actually have a practical way to achieve without imposing significant penalties on them. That’s our real concern’” (Forstner, 2023). Through this messaging, they carefully communicate that they endorse the ethical concerns that the bill is trying to address but believe its teeth to be too harsh, which would create more harm than maintaining the status quo.
This messaging paints an extremely negative view of the NYFA. By calling on other environmental protection bills, CSR efforts, and labelling the bill as bad for business, particularly smaller, state businesses, the Business Council looks to invoke conservative values. Bolte et al (2024) assert that conservatives most value self-enhancement and conservation, which feeds into the idea that business exists solely to make profit. Undertaking expensive supply chain mapping activities, remedying the associated harms, and potentially paying out significant fines runs counter to traditional conceptions of the purpose of a business and these conservative values.
Interestingly, by opposing the bill, the Business Council of New York State is aligning itself with some suppliers who acknowledge that many retailers have bad behaviors that need to be curbed but worry that the burden of cleaning up the supply chain will fall solely to them. Miran Ali, vice president of trading group in Southeast Asia, notes that “A lot of the cost of compliance is simply that the credit is taken by the brand, and the cost is passed on to the supplier—that’s something we don’t want to see” (Chua, 2024). He continues by saying that suppliers want fairer terms of trade and to be paid on time by retailers (Chua, 2024), suggesting that the bill is unwanted by the stakeholders it claims to benefit most.
II. Analysis and Critique
Patagonia
The strength of Patagonia’s argument for support is in the way that it has framed itself as a company. As Kuklinksi et al (2000) show with their study on the heuristics of biased interpretation of messages, we are generally more likely to believe that a change is necessary when the message comes from a person or group that we believe has the authority or social standing to speak about a topic. In their study, they found that when African Americans were presented with a fake message that was accredited to a black source, they were more likely to believe it than if it were attributed to a white source. In this way, the black sources were given a social accreditation that made them legitimate to African American voters. Because of its advocacy and social responsibility efforts, Patagonia has made itself into a trustworthy. Consumers can believe what Patagonia advocates for without looking too deeply into it. Therefore, it has developed the heuristic amongst its consumers that any bill it supports will have a positive ethical impact.
However, the heuristic Patagonia has developed for itself could backfire if the bill is ultimately passed with provisions that run counter to its goals. By voicing such vehement support for the bill before its final provisions are made, Patagonia risks having to walk back its initial statements, which could be difficult to frame easily. As Harder (2018) writes, words matter and in the modern media landscape, most people are not looking beyond the headlines of an article. People would see that Patagonia opposes a revolutionary bill that tries to do everything the company has said it supports and are likely to feel confused or angered by the decision. Corley Kenna tries to subliminally communicate this caveat by indicating that if Patagonia is happy with the final version of the law, then they will gladly see it replicated across states (Goth, 2023) but this byline pales in comparison to the overwhelming support they have given the NYFA and will not hold much weight if they need it to.
Despite the strengths of Patagonia’s arguments, it is also possible that the framing of these arguments will make it difficult for them to find partners for change amongst the group of unsustainable, fast fashion corporations, as Ryan Gellert indicates he wants to do in his letter (Patagonia, 2023). Perloff (2021) notes that framing is the way “an entity defines and structures subordinate physical or verbal objects,” and as previously mentioned, Patagonia has consciously and subliminally framed itself at the pinnacle of an environmentally and socially responsible company. They were sustainable before it was reputationally beneficial to call oneself sustainable, and they still maintain huge profitability while doing it (Dossa, 2015). If another, less sustainable company were to openly work with Patagonia on improving its supply chain, it would unintentionally shine a light on how ethically poor its supply chain is, especially when compared to Patagonia’s. Patagonia is fighting for change across the fashion industry, but being so good and trustworthy might make it a difficult partner to align with.
The Business Council of New York State
The strength of the Business Council of New York State’s argument that the NYFA will be destructive to business lays in its ability to reframe the argument that the bill has already framed. By enacting mandatory due diligence on supply chains, the bill aims to address what its writers consider to be a lackluster effort by brands to be sustainable. However, the Business Council reframes this by saying that brands are already complying with laws and are going the extra mile by working on internal policies to address sustainability issues, indicating that anything extra would be tantamount to draconian. As Daly (2011) describes, “Any new proposal can be framed as an opportunity either to gain something or to avoid a threat,” and by highlighting the existential threat to business that the NYFA could create, the Business Council reframed the debate around the bill to show that its attempt to foster some good could lead to even greater harm.
Additionally, by framing the NYFA as unnecessary, the Business Council keys into a concern about sustainability frameworks that companies across industries have touted. In a personal interview with Christopher Chambers (2023), a member of Freeport-McMoRan's Enterprise Risk Management Program, he highlighted businesses suffer because they are constantly trying to keep updated on the reporting metric “flavor of the day.” In this way, companies can frame their lack of action on an inconsistency in messaging from sustainability schemes. They can argue that they want to do the right thing and are working towards it, but that the playing field is constantly changing. By keying into this longstanding argument, the Business Council can reinforce support amongst its most anti-sustainability members that it is on their side.
However, despite these strengths, the Business Council may be alienating an increasingly larger contingent of consumers who believe that the fashion industry is not doing enough to be sustainable and is engaging in greenwashing. Suzanne Hawkes (2010) writes that in any campaign setting, it is important to consider the message box, an aspect of which includes considering what opponents to a campaign will say about it. She writes that “They will almost certainly be seeking to highlight our weaknesses, and to then contrast those with their own strengths and the merits of their positions. In a political or highly contentious advocacy campaign, they will seek to dominate the debate here – to put our team on the defensive,” and by centering its argument on the idea that business is already working on enough nonbinding, goodwill efforts to become sustainable, the Business Council leaves itself open to the very easy argument that businesses have had years to do the right thing but have little to show for it, as shown by Remake’s (Wicker et al, 2024) report on sustainability in the fashion industry.
Additionally, as more evidence becomes accessible showing that the fashion industry is not taking these goodwill efforts seriously, it will be hard for the Business Council to argue that voluntary action is enough. This is supported by Perloff’s (2021) assertion that people will not believe media that contradicts something they can clearly see. In a survey by Nosto (2019), 52% of respondents indicated that they wanted the fashion industry to become more sustainable, indicating that they do not currently believe the industry is doing enough. As Remake and other anti-fast fashion activists continue to flood social media with evidence of environmental and labor abuses, fewer consumers will be able to believe the Business Council’s arguments.
III. Conclusion
As a bill that is the first of its kind, the NYFA was destined to get a lot of attention. Proponents of the bill will celebrate that after years of seemingly unregulated business activity that has caused environmental and social harms fast fashion brands will finally be held accountable. Opponents of the bill will decry how harmful it could be, painting a future with the bill as more destructive than what it aims to protect. It remains to be seen if this bill will be passed, but because of various social and regulatory trends, such as the EU’s 2023 Corporate Sustainability Due Diligence Directive (Gibson Dunn, 2024), it is increasingly likely that the debate around this law will continue, or similar legislation will be introduced. The political and social climate is ready for change, and it is extremely unlikely that opponents will be able to stem it entirely. Opponents of the bill would be better suited accepting that some form of the NYFA is coming and reframe their messages to argue specific points of the legislation, rather than the necessity of the legislation itself.