March 28th, 2015

Should advertisers be concerned about using thin models?

France’s recent decision, to potentially ban the use of fashion models with a BMI of 18 or less, has reignited the debate about fashion houses’ use of underweight models. France could soon join Italy and Spain which adopted rules, and Israel which introduced legislation, against too thin models on the catwalks or in advertising campaigns. France is proposing regular weight checks and obligatory medical certificates, detailing models’ weight. Any modelling agency or fashion house found to be breaching the rules, would be liable for a fine.

The UK has yet to legislate against underweight models, and at present the framework in which to consider adverts is the model 1CAP Code. Rule 1.3 of the Code states that “marketing communications must be prepared with a sense of responsibility to consumers and to society.” Rule 4.1 states that “marketing communications must not contain anything that is likely to cause serious or widespread offence” and compliance will be judged on “the context, medium, audience, product and prevailing standards.”

In 2014, the ASA investigated an image on the Urban Outfitters website, after it received a complaint “that the model in the picture was unhealthily thin” and the complainant questioned whether the ad was irresponsible and harmful. In its ruling, the ASA noted that Urban Outfitters’ target market was young people and that “the image was representative of the people who might wear Urban Outfitters’ clothing, and as being something to aspire to. We therefore concluded that the ad was irresponsible.” This followed the earlier ruling against Drop Dead Clothing Ltd which featured a model wearing a bikini. The ASA found that the model’s collarbone, hip and ribs were visible and her pose, in conjunction with her heavy eye makeup, made her look underweight in the photos. Again, the ASA considered the target market of the advert and found that image was portrayed “as being something to aspire to”. As a result, the advert was “socially irresponsible”.

By contrast, Calvin Klein was not found to be breaching the Code in its use of a bikini model. The ASA found that “the ad was reflective of images generally seen in swimwear ads” and that whilst the model was toned and slim, she did not look underweight. H&M successfully defended nine complaints against its advert, featuring a model in high heels and a coat. The ASA “considered most viewers, including young children and women, would interpret the ad as promoting the design and price of the coat, rather than a desirable body image,” and found that the model did not look unhealthy or emaciated. Miu Miu also defended its use of model holding a handbag in its spring/summer 2011 campaign. The luxury fashion house commented that their model regularly appeared in American Vogue (which promoted the portrayal of healthy images of women) and had worked with the Council of Fashion Designers of America, which promoted healthy models. The company also provided an alternative version of the advert which did not show the model as significantly underweight. The ASA noted that whilst the makeup, lighting and dress all emphasised the model’s body shape, the advert was typical of those used for fashion products and the model did not look significantly underweight.

Retailers should also be aware of customer resistance, at grassroots level, and not just potential ASA rulings. Topshop was in the spotlight when a shopper tweeted an image of her friend next to a store mannequin, to illustrate the thin legs of the mannequin. The image went viral and soon the high street was accused of promoting poor body image. The store’s response was that the mannequin’s role is not just to display clothes, but instead “to have more impact in store and create a visual focus”. Primark and La Perla were also targeted for using mannequins with visible ribs.

model 2Following the ASA rulings, the authority seems to consider: (i) the likelihood that consumers will want to aspire to the particular body image; (ii) whether the image is typical of the particular industry; and (iii) whether the model appears underweight. Perhaps also relevant is the extent to which the model’s figure is revealed in the advert, and how much this is emphasised by the lighting and makeup. It does not appear obligatory for companies to show models’ BMI to the ASA, with more emphasis being placed on how the model’s weight is perceived by the target audience. Fashion houses, retailers and advertisers should therefore bear their target market and audience in mind when casting models for their advertisements.

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Today the UK Competition and Markets Authority (“CMA”) announced that it has opened a new investigation into “suspected anti-competitive arrangements in the UK clothing, footwear and fashion sector”. Fashionista asked her colleague and competition law expert Dervla Broderick what this is likely to involve. Dervla explained that the investigation is being carried out under Chapter I […]

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March 19th, 2015

Fashionista at (Tax) Law

Fashionista was somewhat underwhelmed by yesterday’s Budget. Generous new reliefs for “creative industries” such as TV, film, theatre and even orchestras but what about our highly creative fashion industry? Perhaps George should consult Mrs rather than Mr Cameron before planning his next Budget, if he’s still Chancellor after the election. To be fair there […]

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Fashionista recently attended the FashTech “Silicon to Silk” event about the latest developments in wearable technology. The insightful panel was made up of Nancy Tilbury (Co-Founder and Creative Director at Studio XO, an innovative and well known wearable technology player), Matthew Drinkwater (Head of the Fashion Innovation Agency at the Centre for Fashion Enterprise) and […]

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March 5th, 2015

Denim Wars: G-Star vs. Voi

As reported in Drapers, G-Star recently stopped rival denim brand Voi from selling a copycat style jean. Design right cases are few and far between in the English High Court, particularly when those rights are unregistered, so Fashionista was interested to read the judgment. G-Star is one of Europe’s leading denim brands and the case […]

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March 3rd, 2015

London Fashion Week 2015

Fashionista was lucky enough to attend the Holly Fulton Autumn/Winter 2015 at London Fashion Week. Fulton put on a very luxurious and feminine show with a spectrum of regal purples, rich reds and emerald greens. The fabrics equally matched the expensive tones, as Fulton used bejewelled tops, lingerie cut dresses and fur accents. Fulton’s inspiration […]

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As reported by Drapers last week, retailers should beware of HMRC who is taking action when they identify those who are failing to pay the national minimum wage. was the latest fashion retailer to be ‘named and shamed’ by the Government, along with 69 other employers, for failing to pay two of its workers the National Minimum […]

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As Fashionista-in-Law has previously reported here, in 2013 Rihanna succeeded in preventing Topshop from selling t-shirts bearing the pop star’s image based on a claim of passing off. The High Court (Justice Birss) held that Rihanna had demonstrated a reputation and goodwill in connection with her business activities relating to her image as a style […]

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December 1st, 2014

Vloggers beware!

As Fashionista has previously reported here, the ASA (“Advertising Standards Authority”) takes a strict view on marketing communications in social media and online. The latest ASA ruling on this topic (on 26 November 2014) upheld a complaint made in respect of a series of five YouTube videos uploaded by YouTube “vloggers” (video-bloggers) in relation to […]

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Fashionista recently attended a FashTech event called “The Future of Retail: Shaping Shopping with Visual Search” and was introduced to Cortexica, a visual search company based in San Francisco and London, which is making it its aim to revolutionise the way in which we shop. Powered by the belief that text search is slowly becoming […]

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