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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. 

 


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