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Monday, February 8, 2016

The Newest Trend in French Fashion: A “Healthy” Weight

Kelly Lynn O’Connell

Dec. 30, 2015

    In the fashion industry, France is arguably the fashion capital of the world. However, this past December, its legislature passed laws that will impact the industry both on and off the runway. The French Parliament voted to ban super-skinny models from catwalk shows and imposed disclosure requirements when using retouched images of models in advertisements.

    The new health reform package aims at ending the ‘glorification of anorexia’ and the ‘promotion of malnutrition.’ Anorexia nervosa, an eating disorder with the highest mortality rate for any mental disorder, is one of the leading causes of death in young women in western nations. In France, approximately 40,000 people suffer from the disease.

    France is not taking the matter lightly, and it is specifically targeting the fashion industry.

    The new law requires that models present a medical certificate declaring that the model is healthy enough to work. Doctors will make the fitness determination by taking into account the model’s body shape, age, and gender. Body mass index (BMI), while not determinative, will play an important role. Hiring a model without a medical certificate will result in heavy fines of up to €75,000 ($82,000) and jail time up to 6 months.

    Neurologist Olivier Veran called for the change because "[i]t is intolerable to promote malnutrition or glorify anorexia and to commercially exploit people who are endangering their own health… [a] level of acceptable body mass index must be set and enforced.”

    Additionally, published photographs that alter a model’s body by widening or narrowing the silhouette must label the image as “photograph touched up.” Failing to do so may result in a fine of up to €37,500 ($41,000), or 30% of the value of the advertisement starring the model.

    Some, like the modeling agencies, oppose the legislation of “healthy” weight, arguing that thinness does not always connote disease.  They also worry that the new regulations will weaken the French fashion industry.

    “It's very serious to conflate anorexia with the thinness of models and it ignores the fact that anorexia is a psychogenic illness," explained Isabelle Saint-Felix, the head of France’s National Union of Modeling Agencies. “It’s important that the models are healthy, but it’s a little simplistic to think there won’t be any more anorexics if we get rid of very thin models.”

    Despite the disapproval of many in the industry, the Italian designer Giorgio Armani calls for responsibility. He believes that the “industry has to recognize the link between its preference for abnormally thin models and the growth in eating disorders among young women.”

    Many wonder if these new paternalistic “health” trends will catch on in other nations, like the US, and if these transformations are here to stay.  Setting limits such as these could mean substantial changes in the fashion, photography, and advertising arenas – or not.  In reality, these types of measures may not deter the industry at all, as the fashion world is known for rebelliousness, creativity, and pushing the limits.  What is more likely is that a cottage industry of doctors will spring up and simply sell certificates to all but the most emaciated models.  Similarly, since virtually all photos are touched up these days, the industry will simply put the required disclaimer at some inconspicuous location on all ads, thereby creating “warning overload” that will soon be ignored just as consumers have become immune to the endless existing warning labels in the marketplace.

    Similar regulations already exist in Spain, Italy, Israel, and India. Academics at Harvard’s School of Public Health argue the US should be the next nation to follow suit.  

    “The workplace is often hazardous to health; the US government regulates the extent to which any other industry can expose employees to significant harm (e.g., mining, shipping, production lines)… [t]hat it does not do the same for runway models is reflective of the idealization of skeletal women, which has detrimental effects beyond the workplace: anorexia nervosa has [the] highest mortality rate of all mental illnesses in the United States.”

    Meanwhile, in the US, according to the National Association of Anorexia Nervosa and Associated Disorders approximately 30 million people suffer from eating disorders like anorexia, bulimia, and binge eating disorder.  Currently, the US only makes suggestions of healthy weights for models.  Any strict mandatory restrictions could potentially impact the US’s large advertising industry.  According to the New York Times, in a single day, the average city dweller is exposed to nearly 5,000 advertisements.

    Nevertheless, laws such as the ones recently enacted in France are not likely to make their way to the American runway or billboards anytime soon, if ever. Such laws are likely to meet stiff resistance, including constitutional challenges based on the First Amendment’s guaranteed freedom of expression.

    The First Amendment to the US Constitution prohibits the passing of any law that abridges the freedom of speech. Freedom of speech guarantees much more than the ability to speak freely; it also permits individuals or corporations to express their opinions, appearance, and beliefs in public.

    Courts provide less protection to commercial speech, such as advertisements, than to other constitutionally guaranteed expression. However, the First Amendment still protects commercial speech from unjustified government regulation. Whether regulation on advertisement is constitutional or not depends on whether the law in question passes the test in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 565 (1980).  Under Central Hudson, the government must justify their restrictions on any non-misleading commercial speech by demonstrating that its actions directly advance a substantial state interest and are no more extensive than necessary to serve that interest.

    Barring a factual determination that advertisements are somehow misleading because they portray slim models, advertisers will be protected by Central Hudson. The First Amendment protection will likely especially apply when the advertisers use untouched images of naturally skinny models.

    To pass constitutional muster, the regulations in question would have to “directly advance” a substantial state interest. Although the prevention of eating disorders is likely to be considered a substantial state interest, arguments can be made that regulating fashion and advertisement industries, as France is doing, is not a direct way of advancing the interest. For example, such advertisements individually are fairly harmless to most Americans. Courts would likely weigh such facts against the harm caused by restricting commercial speech, such as a potentially adverse effect on business and the intrusion upon constitutionally protected rights.

    Finally, if the regulations are to survive a constitutional challenge, they must not be more extensive than necessary to serve that interest (i.e., be “narrowly tailored”). In the case of constitutionally questionable regulations, courts are generally able to find less limiting alternatives.  This creates a significant hurdle for the government and is likely to constrain the potential regulation’s scope.

    Should other industries worry about their appearance-based policies?  Since the dawn of the airline industry, there has been an ongoing struggle over the looks, weight, and role of flight attendants. In recent years, several cases involving flight attendants being forced to conform to weight guidelines yielded mixed results.  India Air and China’s Qingdao Airlines made headlines grounding “overweight” flight attendants that did not conform to height and weight charts. Critics argue that the measures were in place to make the airlines more competitive and as a proxy to weed out more senior workers for younger beauties.

    In the US, there are no official weight regulations however most airlines do look for weight to be proportionate to height.  Under the Americans With Disabilities Act (ADA) the definition of disability requires that applicants establish “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” § 12102(2).

    This allows for legal discrimination to some degree as the EEOC (Equal Employment Opportunity Commission) currently takes the view that the ADA categorizes as ‘disabled’ persons suffering from extreme obesity, and obesity that results in other physical ailments.  This would essentially leave out overweight but non-obese employees, and those who do not have an additional physical condition due to their obesity.  This approach is somewhat irrational because under that definition a moderately over-weight flight attendant could be fired, but a 400 pound flight attendant would have to be retained and accommodations made for her medical condition.  That leads to the next exception in appearance-based discrimination, where employers may discriminate to use a “bona-fide occupational qualification” defense (BFOQ) that is reasonably necessary to the normal performance of a job. In the flight attendant cases, airlines could discriminate if the qualification dealt with the flight attendant’s ability to perform safety duties, making the airplane too heavy, or inability to navigate the narrow aisles.

    Interestingly, France’s new health bill also targets obesity issues by mandating free water at all bars and restaurants and by targeting food served in schools, including limiting sugary sodas. The French health ministry spokesman said: “It is clearly unhealthy to be either too fat or too thin, and we are aiming to legislate for both.”

    As far as the US following France’s regulations on limiting unhealthy food, like soda, this is unlikely to pass constitutional muster.  Recent attempts to regulate foods in New York City were found unconstitutional because the city’s health board lacked legislative authority to impose the “Sugary Drinks Portion Cap Rule,” failed to bring evidence soda consumption was unhealthy, and did not act from a purely public health point of view. New York Statewide Coal. of Hispanic Chambers of Commerce v. New York City Dep’t of Health & Mental Hygiene, 110 A.D.3d 1, 970 N.Y.S.2d 200 (2013) aff’d, 23 N.Y.3d 681, 16 N.E.3d 538 (2014).

    While New York’s soda ban failed, the judicial opinion that struck it down hinted that if the right measures are implemented by individual state legislatures, “health authorities may make rules and regulations for the protection of the public health and have great latitude and discretion in performing their duty to safeguard the public health.” This leaves open the possibility of more “nanny state” attempts by state governments in the future to restrict individual rights. Additionally, initiatives in other cities have the potential to pass, such as a tax or labeling on soda to deter consumption.

    Clearly health is an important issue in all governments.  Fortunately, the US government is not as paternalistic as European nations. The United States is unlikely to make swift, extensive changes within the fashion industry or to address unhealthy eating habits at the federal level as they did in France.  The bottom line is that most Americans do not like to be told by the government what they can or cannot eat, what they should look like, how much they should weigh, etc.  Most people believe that the nanny state has no business in the wardrobe room or at the photoshoot. 

 


Wednesday, June 24, 2015

Rapper Rick Ross Faces Even More Legal Troubles

Rick Ross Arrested Again 

Rapper Rick Ross is again facing legal troubles.  This time he was arrested and charged with kidnapping, aggravated assault and aggravated battery charges after a U.S. Marshals Service fugitive task force and deputies arrested him at his mansion south of Atlanta. Arrest warrants accuse Ross of forcing a man into a guesthouse at his mansion and beating him, chipping his teeth and severely injuring his neck and jaw.  The kidnapping charge arises from Ross’ alleged refusal to let the man leave. 

Jim Joyner, a supervisor with the Marshals' Southeast Regional Fugitive Task Force, told The Associated Press that Ross — whose real name is Williams Roberts — was being held without bail in the Fayette County Jail.  Joyner said that Ross’ bodyguard faces the same charges.  Officers arrived at Ross’ mansion which was once owned by boxer Evander Holyfield, but someone inside refused to open the gate leading to the home.  "They refused to open the gate, so we opened the gate for them," Joyner said.  Once officers got past the gate, someone inside opened the front door so they didn't have to break it down. Ross and the bodyguard were then taken into custody without incident, Joyner said.

It was second time in the past two weeks Ross has been arrested in Fayette County. On June 10, Ross was booked into the county jail on a charge of marijuana possession.  In that case, Ross and a passenger were pulled over because the windows of the Bentley in which they were riding violated tinting regulations. The officer smelled marijuana and found some inside the car.

Rick Ross is no stranger to arrests.  In 2014 he was arrested in Greensboro, North Carolina after his performance at the 2014 SuperJam concert. He was arrested for failing to appear in court for a 2013 marijuana charge.  But that wasn’t Ross's only performance that has been involved with some offstage drama. Ross was blocked by a protesting mob of about 100 people when trying to enter the Chene Park Ampitheater for HOT 107.5's Summer Jamz concert in Detroit on June 21st.

Other marijuana charges include an arrest on March 26, 2011 in Shreveport for possession. According to the police records, a strong odor of marijuana was detected from his room at the Hilton in Downtown Shreveport.

In 2008, Ross was arrested on gun and marijuana charges in South Florida.  The case was assigned to the gang task force because the arresting officer testified that Ross claimed affiliation with the Carol City Cartel and other known gang members.

But it is not just law enforcement that Ross has been having trouble with.  It is well known in the rap world that there has been a dispute between Ross and the Chicago-based Gangster Disciples. Ross was apparently targeted by gang leaders after he used some of their signs, symbols and logos without paying them the required fees.  Gang members have posted video death threats against the rapper on YouTube.  Many believe that the Gangster Disciples sent a hit squad to do a drive-by shooting on Ross in South Florida in January 2013.  Ross was out celebrating his 37th birthday at when his Bentley was prayed with bullets.  Ross reportedly tried to flee the shooting, but ended up crashing his car into an apartment.  Police said that the motive for the shooting was not clear.

Threats against Ross have been a major cause of concern, and caused Ross to cancel his Maybach Music Group tour in December 2012. Promoters in North Carolina were the first to pull the plug on two scheduled performances by Ross and label mates Meek Mill and Wale, fearing an altercation with the Gangster Disciples.  Other legal troubles arose from Ross’ cancelations, including Ross’ failure to pay the booking agent, Total Access Entertainment, $171,000 that was owed to them for setting up the tour.  That lawsuit is still pending.   In that suit, Ross testified in one breath that he doesn’t know anything that goes on behind-the-scenes with touring decisions, yet in the next breath he testified that he is “the Big Boss” and nothing happens concerning any aspect of his career that he does not know about and approve. 

Other civil actions against Ross include a suit by rival rapper, “50 Cent” alleging that Ross leaked a sex-tape of Ross’ ex-girlfriend on line.  In another suit by a photographer, Armen Djerrahian, sued Ross for using an iconic image of JayZ in his video without seeking permission.

Ross has also been accused of dodging process servers' attempts to slap him with court papers for over six months after he allegedly bailed on plans to perform in London in 2012.  Ross was named in papers alongside his collaborators Meek Mill, Wale and Omarion amid accusations they pulled out of a gig at the city's Wembley Arena after promoters at Executive Decision gave them a large advance of their performance fees and covered other costs, amounting to $93,281.26 (£58,300).  Company boss Christian Ezechie filed his complaint in New York federal court but could not serve Ross with the summons "despite numerous and diligent attempts"

One of Ross’ most criticized offenses comes from a line on rapper Rocko's song "U.O.E.N.O.", where Rick Ross raps the line, "Put molly all in her champagne/ She ain't even know it/ I took her home and I enjoyed that/ She ain't even know it." A petition containing 72,000 signatures was presented to Rebok, demanding they drop Ross as a spokesman because his lyrics condone date rape. Ross apologized for the lyrics, claiming they weren't about rape, but he was nevertheless dropped by Reebok. A Ross concert organized by the student association of Carleton University was cancelled after protests that his lyrics promote "rape culture".  Rocko later dropped the Rick Ross verse in order to get radio play.

Further law suits include one filed by YouTube entertainer DJ Vlad who sued Ross for assault and battery. Vlad claimed Ross organized an ambush on him at the 2008 Ozone Awards in Houston, Texas for asking questions about his past as a correctional officer.

On June 18, 2010, "Freeway" Ricky Ross sued Rick Ross for using his name, filing a copyright infringement lawsuit in a California Federal Court.  The reformed drug kingpin was looking for 10 million dollars in the lawsuit.  Also, the release of Ross’ album, Teflon Don, was threatened to be blocked by Freeway Ricky Ross.  The lawsuit was thrown out of court on July 3, 2010 and his album, Teflon Don, was released on July 20 as scheduled.  But then in 2011 the rapper Teflon Don filed a trademark infringement lawsuit against Ross for the use of the name as an album title.  A week after the filing of the lawsuit, Rick Ross responded to the charges: "It's like owning a restaurant, you're gonna have a few slip and falls. You get lawsuits, you deal with them, and get them out your way…sometimes you lose."   Looks like Ross’ “restaurant” has been a very slippery place. 


Saturday, June 13, 2015

These Drivers can be Uber Dangerous

Recently we have seen quite a buzz on unique “taxi” companies such as Uber and Lyft all around the United States. These companies are based on smartphone apps that allow anyone in need of a ride to post their location and nearby drivers who have signed up for Uber and Lyft will come and pick you up and drive you where you want to go for less money than a taxi would charge.  The problem is that these drivers are not regulated, no special licensure is required, and there is no fingerprint background check.  What riders do not consider is that these drivers could be anybody, including dangerous criminals, rapists, psycho killers, etc. 

This new “service” flies in the face of what we have all been taught as little kids – “Never, never, never, get in a car with a stranger.”  Children are cautioned that a molester or kidnapper might drive up in a car and say “come here little girl/boy, do you want some candy?” Or, “come over here and see this cute little puppy.”  Children are cautioned to run because once you get in that car, you are their prisoner and they can take you to a desolate area and do horrible things to you and even kill you.  Now the lure of candy and puppies has transformed into the lure of saving a few dollars on cab fare.   It is analogous to electronic hitchhiking.  You have no idea who is picking you up. There is no doubt that if one were to ask a victim of a horrific kidnapping/rape if they had it to do all over again would they place more importance on saving a few bucks ahead of their safety, their answer would be obvious.  They would gladly have paid a thousand times that amount to never have gone through that. 

In cities across the world, drivers have sexually harassed and even raped victims, as well as hit and killed children.  The crimes are egregious and indisputable. But the question remains, is Uber legally responsible for them? Its terms of service warns riders, “You expressly waive and release the company from any and all any liability… arising from or in any way related to the third party transportation provider.” That caveat hasn’t stopped victims from issuing lawsuits and entire countries banning the app entirely; however, the argument that the business has no connection with its employees’ abuses appears patently disingenuous.

Houston 

Just last month yet another incident happened in Houston, Texas, where an Uber driver picked up a drunk female passenger and raped her. 

Chicago

On November 16, a Chicago woman was reportedly raped by a driver who asked her to sit in the front of his car because he was “unfamiliar with the area,” according to the Chicago Tribune. Uber has removed the driver from its service and is complying with the city police.

Los Angeles

Similarly, a female student at the University of Southern California was raped by an Uber driver.

Both Los Angeles and San Francisco are suing Uber for misrepresenting the quality of its background checks, especially in light of the company’s added $1 “Safe Rides fee” that tout its driver screening. Uber’s process is actually “completely worthless,” argued San Francisco District Attorney George Gascon. Lyft, an app-based car company that is weathering regulation better than its larger, more aggressive competitor, recently settled the suit for $500,000.

San Francisco

Roberto Chicas, a San Francisco bartender, may lose vision in an eye over an UberX ride after the driver took a hammer to his passenger’s face during a dispute in September. “There’s no doubt that the trail of liability leads back to Uber’s doorstep,” said Harry Stern, the victim’s lawyer, who plans to sue the company. “We believe they should pay.”

Nevada

In November, Uber suspended operations in the state of Nevada after a judge granted the state’s request to block the company, successfully arguing that drivers’ Uber-enabled ability to use their personal cars to carry paid passengers goes against the rights of taxi companies. “I’m not going to risk the safety of the public,” said Judge Scott Freeman.

London, U.K.

A London woman was offered $31 in Uber credit after her driver “asked me if I wanted him to go down on me,” Newsweek discovered. “I feel that people really trust the Uber name (as I do) and my trust was completely violated,” the woman said.

New Delhi, India

Delhi driver Shiv Kumar Yadav picked up a 26-year-old woman in his Uber car, but instead of bringing her home, Yadav drove her to a secluded area and raped her. According to police, the driver later confessed to the crime. After a storm of bad press, the government “banned Uber to provide any transport related service in Delhi,” the state government announced. Mumbai and Hyderabad are joining in on the ban, as well.

Spain

A judge in Spain laid a temporary ban on Uber, accusing the company of "unfair competition” following a complaint from the Madrid Taxi Association. Drivers Drivers "lack the administrative authorization to carry out the job,” the ruling reads. Yet the company maintains it is "still operating" in the country, reports the BBC.

There are numerous countries where Uber is being outlawed. But the company’s website tells a different story, toting its services in 52 countries, including many that supposedly ban it.

 No meaningful Background Checks

Although these drivers receive a very basic screening, no one can know how safe or trustworthy they are. It is very easy for a dangerous criminal to change his name or steal a new social security number.  In contrast to Uber or Lyft drivers, legitimate taxi drivers undergo FBI fingerprint and background checks.  Their license and photograph are posted on the dashboard, and the industry is heavily regulated. 

Particularly in Miami, these companies have been in the spotlight due to the protests taking place by local taxi drivers and even police who are furious that these drivers are diverting business from legitimate taxi drivers and are putting the public at great risk.  It is certain that we will soon be seeing lawsuits against Uber, Lyft, and other such companies for negligent hiring and retention and other causes of action, and it is likely that municipalities and states will begin enacting laws to regulate these companies and enforcing existing laws that regulate taxi drivers.  In most areas of the country, there are already laws in place that place stiff fines on drivers if they are caught acting as a taxi without a license.  It is also anticipated that police may soon set up stings to catch these illegal drivers.  Until then, all we can do is remember the valuable lessons that our parents taught us.  Don’t accept rides from strangers. 

 


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