Ethics and Fashion Industry: The Need of a New Legal Approach

Sustainability: One of the Facets of Ethics

As many other industries, the fashion industry faces ethical issues in a continuous manner: issues related to the environment, but also the labor conditions and employments, as well as exploitation of animals and endangered species. That is not so different from other sectors, but fashion (that includes also luxury) emphasizes these issues because it often satisfies superfluous and unnecessary desires.

After all, an Italian saying goes: “this is a luxury” to mean something that is needless.

Considering the increasing sensibility that people worldwide are paying to sustainability and the achievements of the Sustainable Development Goals set out for the 2030 Agenda, it becomes clear the progressive willingness by the consumers to buy, as well as from the producers to make, fashion sustainable and first of all ethical.

Just for the sake of clarity, the word sustainable should involve actions and decisions aimed at satisfying the need of the current generations through actions and decisions that do not compromise the possibility of the future generations to satisfy their own; while ethics involve more concepts like morality and behavior that affect lives of human beings and animals. 

It is clear, however, that sustainability per se includes ethical choices, since it is pursued to ensure equal chances between generations that do not exist contemporarily.

Why a new approach?

Ethics is a value that may be influenced by many factors: personal belief, religion, but also state of need: a Latin saying goes primum vivere, i.e. the first priority is to stay alive. Having this in mind, it is clear that, except for certain values like the protection of the human life, ethics may involve values which may differ a lot from country to country, from region to region, from people to people.

It is sufficient to think of the use of animals for the leather. Many fashion designers are defining themselves sustainable just because they do not use leather made by animals and just because they recycle plastic bottles or crop wastes. However, is that sufficient? How good is the message given by the use of plastic bottles if it could be understood as “you may use how many plastic bottles you want, since they could be recycled”, when it is clear that the recycled plastic bottles are just a minimum number of those that are produced? Moreover, what about the possibility to recycle the shoes made by recycled plastic when they are not usable any longer? In addition, what about the dispersion of micro-plastics when the shoes are used? Who is able to know how much oil derivatives are used to transform crops waste into the so-called eco-leather?

On the other hand, animal leather is for the biggest part made from animals that are killed for nutrition purposes and not only for their skin (as it happens, instead, for most of the cases when they are killed for the fur). Thus, for those persons who are vegan, it could be understandable that they do not accept animal leathers.  It might seem a little odd if, instead, they are carnivorous, but they still complain about animal leather. However, also in this case, the reality is more complex: because tannery may have a relevant impact on environment and many issues may be considered with reference to intensive farming, the relevant effects on global warming, the cruelties imposed to animals, and, last but not least, how and whether animal leather may be efficiently disposed.

It is therefore evident that, as it happens in many circumstances of life, when theory comes to practice many are the issues at stake, while the way to address them may be difficult and unclear. 

Grey areas leave space to green washing and unwanted consequences

As for many human activities, it is clear that also the fashion industry has grey areas that leave space to wrong messages, intentionally or not. It is not only a  matter of greenwashing where the information given is untrue or misleading, in many cases the issue raises from the fact that the consumers are not allowed to have a clear picture of what their loved brand makes.

Another example may be of help. With regard to diversity and inclusion, is it sufficient for being inclusive to represent diversities in the advertising? Or should the brand also produce its garments for those who are overweight or have disabilities of whatever nature? Is it sufficient to produce these garments if then the relevant distribution is limited or very restricted? Moreover, how much is a brand inclusive when it does not ensure fair wages to the models or engage models only if they are underweight?

These considerations could be applied in many fields and one-way perspectives many times influence them. Is fast fashion so much unethical if it creates job opportunities for poor people? And may we consider ‘green’ a brand that wastes a lot of energy in advertising, covering the facades of buildings in the very center of the cities, often hiding the artistic beauty of those buildings?

It is obvious that every choice has different consequences and may be evaluated with different scales of values, where, in many circumstances, nobody is in the position to claim that the relevant decisions are better than those taken by others.

A proposal to address the issues from a legal perspective

As mentioned above, the factors that could affect ethical choices can be many and not easy to be dealt with in a clear manner. The existing legislation in many countries is addressing the issues related to untrue or misleading messages, sanctioning greenwashing and misleading advertising. These rules, however, address only a part of the problem because of the criticalities that have been exposed above.  

Many of the same issues may also refer to sustainability. 

The creation of taxonomy regulations may be of help, but – also in this case – the regulations are the result of choices that could be opined because they are the results of lobby actions and compromises and often disagreed based on the personal belief of every consumer. 

In this regard, a principle that has to be ensured is the right of consumers to exercise conscious choices.  

So, one of the criteria that should be used as the main guideline should be transparency rules that oblige the brands to explain why their action should be considered ethical or sustainable every time that ethics and sustainability become a driver for their promotions. 

The simple list a of greenhouse gas emissions or the potential recyclability of a product does mean that this product is better than another one that causes  major carbon print but offers more job opportunities or ensures its full recyclability? it is a matter of choices that the consumers should be able to evaluate with their own assessment. 

Moreover, brands should give sufficient information to explain why they declare themselves inclusive, for example making available data in terms of employment, advertising and productions.

If a brand claims sustainability just because of plastic recycled, it should explain how and when the recycled plastic may be recycled again, explain as well what is the impact of recycling in terms of dioxide emissions for a small production compared to other materials or the same plastic when it is new.  It should also be explained how much plastic is actually recycled.

If the brand uses eco-leather, it should explain how much oil derivatives have been used to make it and what is the relevant impact on the environment. While if a brand uses animal leather, it should explain whether the leather comes from intensive farming, in compliance with no cruel practices, as well as how the items could be disposed when wasted.

In this regard, many steps have been taken or are in the process to be taken at a global level, such as: 

1. the European Union Commission proposed the Eco Design for Sustainable Products regulation  , which is aimed at improving transparency, among others, on products  for their capability of being recycled, use of sustainable raw material, carbon and environmental footprints;
2. the European Union Commission also proposed the Corporate Sustainability Due Diligence Directive, which requires companies with 500 employees or 150 million euro turnover worldwide, to ensure protection of humans and the environment during all the supply chain passages, including those that take place outside of Europe; 
3. The State of New York is considering the issue of the Fashion Sustainability and Social Accountability Act that would require transparency regarding environmental and social impacts of fashion labels. This Act, if passed, shall require fashion brands to disclose greenhouse gas emissions, as well as usage of energy, water, material and plastic through traceable processes. 

However, we must face the fact that sometimes choices may be in contrast among themselves: just for the sake of clarity, Western countries are asking developing countries not to use coal because of the gas emissions, not considering that in those countries coal is still necessary to ensure better life conditions. Is that ethical considering that Western countries use life standards that are one of the biggest causes of global warming? 

Considering the above, there should be a simple rule, if a brand claims to be sustainable or ethical: 

1. first of all, it should give sufficient information to explain why and to which extent it believes it is so; and
2. secondly, it should be obliged to reply to the requests of information that come from consumers in this regard.

The second aspect is fundamental. 

Transparency should also mean that if a brand claims to be ethical or sustainable, it is obliged to address and reply to the questions posed by the consumers in public forms. In fact, it is clear that certifications by third independent parties may not be sufficient, since these auditors make assessments applying agreed procedures that could address just part of the issues, while the consumers should know what is beyond the procedures, what has been considered and what has not. Last but not least, the independency of third parties’ judgement has all to be proven when it comes from those firms that have always been involved as consultants by the same brands in the past.

How these matters may be regulated and how the exercise of consumers’ request have to be dealt with is a matter pertaining to the lawmakers and, in this field, lawyers could help to figure out possible solutions.

What is clear is that greenwashing is only a part of the global issue and maybe it is only the peak of an iceberg, where the real matters are under the water. 

Written By: Mario Di Giulio

A member of the Scientific Committee and visiting lecturer (Ethics and Fashion Law)  at the Fashion Law Master held by LUISS University in Rome. He is adjunct professor of Law of Developing Countries at Campus Bio-Medico University. Partner at Pavia e Ansaldo Law Firm, he is co-founder and Vice President of The Thinking Watermill Society, a non profit organization focused on technological innovation and sustainability matters.