Fall 2017 is all about statement dressing — social and political statements, that is.
Some New York Fashion Week messages were atmospheric, like “This is Not America” at Calvin Klein, a soundtrack for the season. Others were performative, like the poetry at Tracy Reese and Mara Hoffman or Malan Breton’s evocation of the Thirties, from ballroom dancers recalling golden age Hollywood to jackbooted models marching in formation.
Still others were subtle references by designers who have long championed women’s empowerment, including Narciso Rodriguez, Maria Cornejo and Bibhu Mohapatra. And one statement was ubiquitous: hot pink CFDA buttons supporting Planned Parenthood. Then there was the parade of printed slogans from Public School, Christian Siriano, Jeremy Scott, Prabal Gurung, and more — many of which are for sale at a web site near you, with proceeds benefitting a relevant cause.
Fashion is finding its political and social voice, but doing good well — in legal and business terms — requires more than strong beliefs, bold statements and good intentions. Just ask Lady Gaga. She promoted the sale of bracelets for an apolitical humanitarian cause, earthquake and tsunami disaster relief for Japan in 2011, only to find herself the target of a class action lawsuit charging that not all of the proceeds had gone to charity. A year and a six-figure settlement later, it was apparent that the claims involved only sales taxes and shipping and handling fees, but reputational harm and legal costs had already accrued. Similar dangers may await designers inexperienced in activism.
As calls to action continue, fashion companies should take stock of their policies and procedures for both charitable campaigns and other forms of political and social engagement. Cause marketing alone — with or without a political valence — is governed by rules that vary not only by country but also by state, making compliance with regard to online sales and social media complicated. Still, there are common elements to consider before printing those T-shirts.
- Contract — Some states require a commercial co-venturer, like a fashion house, to sign a written agreement with the intended recipient of charitable funds, sometimes with specific provisions or an additional requirement that the contract be filed with the state.
- Registration — A few states require not only charities themselves but also commercial co-venturers to file forms and engage in reporting.
- Transparency — New York and other states suggest best practices for cause marketing, as does the BBB Wise Giving Alliance. The disclosures include more detail and specificity than might be intuitive to a marketing team, such as the name of the charity, the specific dollar amount or percentage of sale price per unit to be donated (as opposed to merely “profits” or “proceeds”), the consumer action required (a purchase or a social media post, for example), any cap on the total amount of the donation, and the start and end dates of the promotion.
- Accounting — Once the funds have rolled in, the commercial co-venturer may be required to inform not only the charitable recipient but also the public of the results, and also to retain records for several years.
Translating words into actions, in other words, isn’t necessarily easy. The common thread connecting these regulations is protection of consumers against fraud, not a desire to silence speech or bury it under a stack of paperwork, but the lack of a single federal system or even unified state laws can cause problems for the idealistic but inexperienced.
Even when financial transactions are not involved, fashion houses or designers planning to step into the political arena should pause for a moment over policy. Corporate free speech rights with respect to politics are remarkably unfettered since the Supreme Court’s 2010 opinion in Citizens United versus Federal Election Commission, a controversial decision that some who fear the effect of money on elections hope to overturn. Before exercising the power of the checkbook, however, companies need to clarify where they stand on taking a stand — and how to differentiate their official positions from those of individual employees.
New Balance, L.L. Bean and Under Armour have already faced backlash against executives’ public statements. Who’s next? Cautious corporations might find this an ideal time to revisit their social media policies, noting that the Constitution protects speech against government intervention only, but then again, the perception that a company has decided to muzzle its staff might do as much harm as any individual inflammatory statement.
In addition to raising money, making donations, and simply speaking out, some fashion companies have considered an unusual statement-making option: culling their business relationships. The decision by Nordstrom to discontinue Ivanka Trump merchandise may or may not have been politically motivated, but the British beauty line Illamasqua has explicitly stated that it will never knowingly sell its products to Trump supporters.
Some suggest that this action is as much a violation of certain state and local civil rights laws as florists or bakeries refusing to cater same-sex weddings, but neither Republicans nor Democrats are a protected class under public accommodations law. While refusing to accept patronage on ideological grounds may thus be legal, it remains to be seen whether it is a strategic move to shun the 42 percent of women who voted for Trump — an economic force in their own right — or the men who buy them perfume and jewelry on special occasions.
At the end of the day, mixing fashion with social and political consciousness creates a potent cocktail — and smart companies should make sure to have a designated driver.
Professor Susan Scafidi teaches at Fordham and is founder of the Fashion Law Institute.