In the late 1990s, I had the opportunity to visit Sweden. It is a beautiful country with beautiful people. One of the things that stood out for me during my visit was how the Swedes, upon discovering I was American, wanted to engage me in a debate about America’s policies especially racism, racial intolerance and climate change. Many of the Swedes I debated with argued that Sweden provided the blueprint that America should follow with its socialist policies including a seeming liberal refugee policy that allowed an influx of Muslims from war-torn territories, at the time.
When I visited, H&M was a household name and the brand was just beginning to make an aggressive expansion into Europe and North America. I am a fashion fanatic and love shopping so of course, I had my fill day shopping at one of the local H&M stores. I was so impressed with the brand that when I returned to the states and in 2005 the brand representatives reached out to invite me, in my capacity as a fashion journalist, to cover the opening of its first West Coast store in San Francisco, I said, “yes.”
In 2007, I again visited Sweden. This time, however, things were different. Racism and racial intolerance had apparently become commonplace. The same Muslim refugees that were the pride of the Swedes and used as an exhibit to demonstrate their love for diversity were now regarded as a “threat.” Further, the few Africans I met during my visit tried to convince me they had to return with me to America because Sweden was a country with strong “Afrophobia” making it very difficult to thrive or become successful.
I am yet to visit Sweden since my last visit but find it particularly interesting that one of its most respected fashion brands is at the center of one of the worse cases underscoring racism in advertising.
On Monday, January 8, 2018, H&M became the recipient of a global public backlash as a result of an advertisement on its UK e-commerce website featuring a black male child model in a hooded green sweatshirt (hoodie) with an inscription that read, “coolest monkey in the jungle.” Interestingly, for the child’s white counterparts, H&M had them clad in hoodies with positive inscriptions.
After Ethiopian-Canadian artist Abel Tesfaye aka The Weeknd expressed his disgust with the advertisement and cut ties as a brand ambassador with H&M, the retail giant issued an initial apology that to me was very lackluster and did more damage, forcing it to issue yet another apology today.
The Weeknd had a multiservice deal with H&M. For non-fashion industry insiders, this means he agreed to appear in a line of apparel for H &M, allow H&M use his name and likeness for that line of apparel i.e. ‘The Weeknd x H&M Fall 2017 collection,’ and collaborate with H&M to design the branded line.
Ms. Uduak’s Fashion Law Commentary & Analysis
Much has been said in the public domain about the advertisement that in my view was indeed very offensive. So, I will not belabor the point. Instead, I offer a different perspective, specifically eight ways fashion brands, H&M included, can avoid such offensive advertising that leads to nothing short of a dreaded PR nightmare, soiled reputation, and loss of revenue.
1. Fashion Advertisers, You Must Go Beyond the Legalese: Often, fashion advertisers are programmed to worry only about legal liability and regulatory compliance and nothing more. You worry about the Federal Trade Commission rules, service contracts and clearances for music, photos, film footage, model releases etc. but miss an equally important part of the equation, diversity and cultural sensitivity in creating your advertisements. You cannot do that because it most likely will land you in H&M’s situation when the public calls you out on it. You must go beyond the legalese and tune into socio-cultural and political issues, among other things, that may affect your brand messaging through the ads you create and deliver.
2. Do Your Research: It is hard, to me, for anyone to argue with a straight face that the advertisement by H&M was taken out of context and not meant to play on the global negative stereotypes of Blacks and/Africans. Assuming such absurd argument can be made, after all, it is a Swedish brand, not a British or American one with a deeply seated history of racism against blacks, all H&M had to do was conduct basic research. Fashion advertisers, you must research, research, and research again when you attempt to target multicultural consumers with your ads. This is especially so if you are operating outside of your domestic market.
3. Hire a Creative Yet Culturally Sensitive Team: Often, fashion advertisers outsource their advertising needs to creative agencies and then take a hands-off approach to the control of their brand messaging. You cannot do that. This is because the problem with many advertising agencies is a lack of diversity on the executive team that is responsive to today’s 21st-century competitive marketplace. Further, many insist on feeding the myth that whiteness must be positioned as superior to blackness to sell products, even to blacks. The problem is that the data out there doesn’t support such flawed reasoning and approach. Indeed, there is ample data using a free research tool like Google that shows minorities have a strong buying power. Take for example this report two years ago from the University of Georgia:
“In 2016, U.S. Hispanic buying power was larger than the gross domestic product of Mexico. That’s just one of the telling statistics that illustrate the unprecedented economic clout of U.S. minority groups in the latest Multicultural Economy Report from the University of Georgia Terry College of Business.
Published by the Selig Center for Economic Growth, the report estimates the nation’s total buying power reached $13.9 trillion in 2016 and predicts it will hit $16.6 trillion by 2021, with minority groups making the fastest gains. For example, African-American buying power, estimated at $1.2 trillion in 2016, will grow to $1.5 trillion by 2021, making it the largest racial minority consumer market…” – UGA
4. Have Diversity On Your Boards and Executive Teams: For brands to thrive, and stay competitive, its decision makers must have a diversity of ideas, creativity, and cultural sensitivity. Indeed, if you are a fashion brand, you know that the global retail industry has been struggling with uncertainty due to rapid technological innovation, challenging political and economic climate, and a shift in consumer tastes and behavior. Specifically, we’ve seen many large apparel and footwear retailers close shops and lose consumers to other retail industry sectors. While things seem like they may be looking up in 2018, the customer experience becomes even more crucial to driving growth.
So, before you place that advertising material in the public sphere, have you thought carefully about your internal board and executive teams? Is there someone that can quickly identify an ad that will be deeply offensive? Fashion advertising must be carefully created, vetted, and understood before the advertisement is presented to the public. Also, having minorities on the diversity committee for H&M in Sweden, if any exists, doesn’t mean you cannot miss the mark the way H&M did. This is because a Black Swedish, for example, may have a completely different experience on what is offensive when compared to a British or African-American. Have a test group (from the executive level to your customer base) that help vet ads that may be potentially offensive.
5. Protect Your Fashion Models: I am of the opinion that modeling agencies can no longer afford to take passive roles when it comes to how their clients treat their models. Even if a model may not have a direct legal claim against an advertiser in a situation like H&M’s, it may have one against the modeling agency who sent the model to the client, depending on the facts, and the model agreement. Model agency owners, you have an active duty and obligation to protect your models particularly minorities, and male models, who in my view, are the most abused in the industry. In this case, I am unsure what the negotiated agreement was with the fashion advertiser. And yes, it is not typical for agencies to get involved after they supply talent to a client. However, a clause in the modeling agency service contract between you and the fashion advertiser that protects your models, including a statement prohibiting the use of your model in a way that will humiliate (whether intentional or unintentional), discriminate etc. should be included in your contract, especially where a child model is involved.
6. Protect the Celebrities and Influencers Who Do Business with You: As a result of H&M’s bad behavior, The Weeknd, severed ties with the brand. In my view, The Weeknd had no choice but to sever ties. Ethiopia has been painted by the West, for decades now, as a country with epic proportions of famine. In fact, images of these starved famine victims have become the global brand image of everything wrong with Africa and how you define an African. Do you really expect a son of that African soil like The Weeknd, regardless of how westernized he is, to embrace a Western brand that clothes a black boy in a hoodie with “coolest monkey in the jungle” inscribed on it? Common on! Clearly not. When you as a fashion advertiser fail to vet deeply offensive ads, you show that you lack basic corporate social responsibility and a moral compass as a brand. You also lose an important celebrity brand endorsement that can help expand your business in a tough retail climate. This, needless to say, is bad for business.
By the way, celebs and influencers reading this, a fashion brand shouldn’t be the only one placing a morals clause in your celebrity/influencer brand endorsement agreement. You too should protect your brand, and that includes, especially with a brand with a history or emerging history of racism, a requirement to pre-screen ads involving your image and likeness. You should also throw in your own morals clause so that if a brand acts as improper as H&M, you cut off ties and can also sue them for damage to your brand reputation and image that result from their actions, if applicable.
7. Parents Protect Your Child Model: This incident took place on a UK website but had a global viral effect, thanks to social media. One of the questions that have been asked over and over again is why a parent would allow their child to wear such a hoodie. I have no answer for that and do not know the way modeling agencies, parents, and fashion advertisers interact in the UK market. I also do not know if the ad originated in Sweden and then was disseminated to the UK office for use on the UK website. However, speaking for the U.S. market where I modeled, and also practice law, California and New York have stringent rules that protect child models, including against their parents. You can read about such rules here. In addition to the rules, parents must and should play an active role in controlling how children are used in advertising. This does not mean you become very difficult to work with, or disrupt every ad project because you insist on micromanaging a project you have no expertise in. But it does mean you use basic common sense and if your child is being exploited through modeling of messages or imagery that do not agree with your values for your child, you step in and stop it. Don’t be afraid to speak up and to also insist on a morals clause in your child’s modeling contract prior to you signing on his/her behalf. You are the parent/guardian.
8. Apologize Wholeheartedly When You Are Wrong: The H&M ad should never have been created nor released to the public especially since we know H&M seems to be building a history of a practice and pattern of discrimination. In 2015, less than a week of the brand opening its first stores in South Africa, a similar controversy happened when H&M hired only white models, and when questioned about their hiring, claimed the white models helped communicate a positive image of the brand. Really? I know. It’s incredible to believe. When you are a fashion advertiser and you are called out for a racist ad, if indeed you are not racist, what you need to do is immediately and wholeheartedly apologize. None of this, “Sorry if it offends you stuff.” It is patronizing. You also must reassure the public of your commitment to diversity and remind them of some of your achievements in that area. If you have none, your apology should be a lot more heartfelt than the initial lackluster apology H&M gave. Today, H&M issued the apology it should have, but the story had gone even more viral and touched markets in Africa it is currently operating in and new ones it plans to expand into.
As a whole, the fashion industry and fashion advertisers can and must do better. There is a paradigm shift that Oprah Winfrey articulated so well in her speech a few days ago at the Golden Globes. That paradigm shift necessitates a reassessment of internal practices and getting rid of racial and gender stereotypes, among other things, that dwell within your fashion walls. It is good for business and can be the difference between increased sales and stronger brand reputation versus a dreaded H&M type PR nightmare.
FASHIONENTLAW blog, authored by Ms. Uduak, was first established in 2010. It is now incorporated, in 2021, as part of the FASHIONENTLAW LAW FIRM blog. The blog is for informational purposes only and provides legal commentary and analysis on the intersection of mainstream America pop culture and the law. It also provides updates on Ms. Uduak’s speaking engagements and press activities. For inquiries on topics covered on this site, please get in touch with our firm. If you seek legal representation for your specific legal needs, please schedule a consultation.
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