Does this Outfit Make Me Look Healthy?

by Katherine L. Record, JD, MPH, MA

Today, New York opens its runways for the first Africa Fashion Week, bringing the work of emerging African designers to the catwalk, and showcasing a growing industry that bridges a gap between a poverty stricken continent and one of the most profitable consumer bases in the world: the woman’s closet.

Designers are already exploiting the beauty of the African continent: the producer of this week’s shows reports photographing African styles in American stores to inspire her Nigerian relatives to seize this movement.  Bringing African designers and manufacturers into the fold of this booming industry will open doors to economic prosperity and creative outlets.

Yet Africa Fashion Week symbolizes more than economic opportunity and the globalization of design.  Turning attire into a commodity serves as a reminder of the darker side of fashion: the direct impact that the industry has on models, as well as the surrounding culture.

New markets often introduce public health challenges (e.g., the globalization of tobacco and food industries has contributed to the spike in prevalence of non-communicable diseases).  Clothing seems innocuous, but when coupled with a powerful industry that drives expectations, women are suddenly faced with new, and not necessarily healthy, norms.  Indeed, wherever apparel has become a commodity, fashion has made enviable what was previously undesirable: dangerously (sometimes fatally) thin women. While the causes of eating disorders are many and complex, the image of a woman is undeniably a contributing factor.  When emaciated women are displayed as the epitome of beauty, grace, and style one day, and are deceased the next, attractiveness is paired with disease, and health is out of style.

The fashion industry not only shifts perceptions of beauty, but also drives its employees into the ground, literally.  Models are forced to choose between unemployment and dangerous standards of appearance: a woman (or girl) must be at least 5’9’’ to sign with most agents, and must fit into a designer’s sample size to walk in a show (generally a 00).  If the outfit doesn’t fit, the model is out of work.  The President of the Council of Fashion Designers of America (CFDA) concedes that sample sizes have trended downward, leading agencies to hire increasing numbers of adolescent girls.  As these girls mature into women, they must either endure starvation (self or drug induced), or quit.  Like other ambitious professionals, most shun the latter.

Individual models (literally at death’s door) have spoken out against this fatal trend, but designers have adamantly resisted change.  Only a few small players have implemented rules to protect models from starvation: women participating in fashion weeks in Madrid must maintain a BMI of at least 18 (about 12 pounds heavier than the average 5’9’’ model), and those participating in Milan’s shows must obtain medical approval.  Larger industry associations have resisted pressure to impose health standards, refusing to “interfere in the aesthetic of any designer’s show.”  For example, rather than follow the lead of Milan and Madrid, the CFDA has implemented a vague and toothless health initiative, “encouraging” models to seek physical and mental health attention, and hosting discussions on the importance of raising awareness.  Concrete actions are conspicuously absent.

Legislators must step in.  Industry’s voluntary guidelines will never be sufficient: an agency’s requirement that a client maintain a given BMI will not prevent designers from selecting other models based on a single sample size, and starving models will always be able to find an agent who will not insist on weight gain.  Instead, to protect the health of these workers – and of the population at large – the law must intervene.  The Occupational Safety and Health Administration (OSHA), created to secure “safe and healthful working conditions” for “every working man and woman,” could invoke the Occupational Safety and Health Act’s general duty clause to require the industry to mitigate this known hazard (e.g., by prohibiting designers’ use of runway models with BMIs under 18, and requiring models to produce evidence of annual physical examinations).  To prepare for such enforcement, the National Institute for Occupational Safety and Health (NIOSH) should study the issue and release guidelines for OSHA to act on.  Charged with recommending occupational safety and health standards (including for psychological health), NIOSH is well positioned to examine this workplace hazard.  Indeed, it has responded to Congressional requests to investigate similar concerns in other domains.

The industry, having belittled BMI as a faulty indicator of health, would undoubtedly challenge such enforcement activity.  Its legal arguments, however, would be weak.  For example, a model may file an employment discrimination action, asserting that her right to medical privacy protects her from a contract contingent on either weight or submission to a physical examination.  Yet a model’s contract inherently hinges on appearance; agents have already established that it is a business necessity to employ specific body types.  A constitutional challenge based on the right to freedom of expression would similarly collapse.  While a designer may have the right to depict clothing on a woman of any figure (e.g., in photo spreads), this right does not extend to forcing the woman to actually acquire or maintain an excessively low bodyweight, simply to achieve an incompatible height-weight combination.  Needless fatalities are not tolerable costs for any workplace, creative or otherwise.

Today, as African models don emerging designers’ work and step onto the runway, we are reminded of both the beneficial and injurious effects of globalization.  The opening of the first Africa Fashion Week provides us with an opportunity to both reflect on the deadly toll of the industry, and to reconsider how the law can begin to reverse the craze that has contributed to the lethal obsession with rail-thin women.

*This blog was originally posted on the O’Neill Institute for National and Global Health Law blog.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the Center for Health Law & Policy Innovation or Harvard Law School. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.