Pepper Hamilton: Nike, Adidas Pledge to Stop Toxic Discharges from Supply Chain by 2020 – A Pledge that May Be Easier to Make than Keep

Pepper Hamilton: Nike, Adidas Pledge to Stop Toxic Discharges from Supply Chain by 2020 – A Pledge that May Be Easier to Make than Keep

Pepper Hamilton LLP

By William J. Walsh, Of Counsel, Pepper Hamilton LLP

A number of companies (Adidas Group, C&A, G-Star, H&M, Li Ning, Nike Inc., and Puma) have pledged to eliminate hazardous chemical discharges from their factories by 2020.  Specifically, they plan to verify that phthalates (a substance that makes plastics flexible), brominated and chlorinated flame retardants, azo dyes, organotin compounds, chlorobenzenes, chlorinated solvents, chlorophenols, short-chained chlorinated paraffins, and heavy metals such as cadmium, lead, and mercury (which are naturally occurring substances) are not being used by their upstream manufacturers and phase out the use of any of these substances that are found in the process.  This will require conducting onsite visits and audits of factories. Alkylphenol ethoxylates (APEOs) and perfluorinated chemicals are expected to be added to the list of banned chemicals this year.

While the pledge is laudable, it may be easier to make the pledge than to keep it.

First, the companies need to find nontoxic substitute chemicals.  Each chemical is in these products because they add a characteristic or result in a particular performance in the product.  It would be counterproductive to substitute a more toxic chemical for an existing chemical.

Second, the companies will need to create an ad hoc "private" regulatory scheme, including laboratories, testing protocols, and trained personnel (not something that can be implemented quickly or cheaply).

Third, the companies will need to define no discharge or no presence of these "privately banned" chemicals.   These will be particularly difficult for metals such as cadmium, lead, and mercury.

Fourth, at each step, these companies will need to obtain the cooperation (if not buy-in) from nongovernmental organizations on very thorny issues.  A failure to gain cooperation in this scheme will undermine the primary benefit of such a program.

Finally, each company must be prepared for the possibility that their production costs may significantly increase, but nonparticipating competitors will not have such increased costs.

While these obstacles are not necessarily insurmountable, companies who may want to join this effort should only do so after giving careful thought to these issues and how they apply to each company's products.

Clothing Factory

Read more at from Pepper Hamilton LLP's Sustainability, CleanTech and Climate Change Team. is a 2011 LexisNexis Top 50 Blogs for Environmental Law & Climate Change winner.

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