[Guest Post] Conference report: 'The New Age of Fashion: Sustainable Horizons'

Tuesday saw the latest event from Fashion Law London, this time covering the timely and somewhat nebulous issue of sustainability. This GuestKat's colleague (and new Kat Friend), Emily Nuttall-Wood, was (virtually) there and sent this report:

Fashion Law London’s latest event (its fifth virtual conference since the pandemic hit – see previous reports here, here and here for example) centred on the topic of sustainability in fashion: what that means (spoiler alert: there’s no one answer), and where the law (and in particular IP and competition law) intersects with it. 

Chaired by PermaKat Dr Eleonora Rosati, together with her Fashion Law London colleague Giulia Gasparin, the seminar was a deep dive into the following main themes:

(i) What sustainability means – to the law, consumers, and to fashion businesses; 

(ii) The mechanisms (and pros and cons) of ‘selling’ sustainability to consumers; and

(iii) The future of sustainability in fashion. 

The meaning of sustainability

Leading with the important message that despite being a ‘buzzword’ (especially, perhaps, in a post-pandemic world), ‘sustainability’ has no real definition, and will mean different things to different people, the hosts grounded the seminar in the UN’s Sustainable Development Goals, dating back to 1972.  These goals wrap together a range of themes, objectives and issues all of which are included in what we tend to mean when we talk about sustainability; it’s not just recycling!

From a fashion perspective, sustainability is not about simply reducing a carbon footprint.  Sustainable fashion is more holistic and more pervasive than that and means making certain changes, or decisions, throughout a product’s lifecycle and across a business’ approach.  What a sustainable business looks like may incorporate what measures its head office undertakes, as well as whether its t-shirts are made using organic cotton, for example.  

However, as the panellists reminded us, the drive to be ‘sustainable’ (or, more cynically, be seen as sustainable) is not really a legally-led one… yet.  Whilst there are some moves to formalise the expectations of government and the law around sustainability, there’s very little codified in this area.  Instead, for the moment at least, the incentive to be or become more ‘sustainable’ comes from the consumer.  The increased awareness around what can be considered ‘sustainability issues’, together with mainstream media interest in matters such as the Bangladesh factory fire in November 2012, or fast fashion waste and pollution (a quick online search produces images that could curb even the most ‘click-happy’ person’s shopping addiction), have meant that 2 out of every 3 consumers in the UK and Germany list sustainability as a concern.   And it might not be long before the law catches up in driving change: a 2019 Environmental Audit Committee Report called ‘Fixing Fashion’ recommended significant changes (not yet implemented), including tax penalties and incentives, in order to increase pressure on the industry to pivot towards a more sustainable model.  

The mechanisms of ‘selling’ sustainability 

For now though, arguably it’s a bit of a ‘free-for-all’ in the fashion industry in terms of ‘what good looks like’ on sustainability, and what just won’t be acceptable any more.  This problem is potentially exacerbated by what the speakers called ‘greenwashing’ – i.e. the use by businesses of sustainability claims, trade marks incorporating sustainability buzzwords, or other slogans or marketing materials aimed at achieving a sustainable message, without any real benchmark for what ‘sustainable’ really is.  

In this regard, argued the speakers, perhaps EU (and UK) trade mark law is ahead of the game: it prevents protection from being granted for trade marks which are no more than indicators of quality or geographical origin or other characteristics of the product.  Thus, perhaps, fashion businesses are prevented from protecting new product line brands or offerings which hold themselves out as being ‘green’, ‘local’ or ‘eco’.  

Businesses are also prevented from registering signs that conflict with geographical indications which – as Pilar Montero told us – come with significant emotional and marketing clout. Geographical indications tell the consumer not just about where a product has been made, but tell the consumer something about how, and by whom.  That geographical indications are not yet available in the EU for fashion goods or textiles (limited as they are to wines, spirits, agricultural products and foodstuffs) seems to be a position ripe for change and expansion, in a world where the origin of a product, in terms of its geography but also the relevant cultural history, tradition and the associated provision of work for local communities, is a feature of increasing interest to consumers.  A wider protection for geographical indicators might, therefore, augment the messaging tools available for sustainable producers.  

Messaging on sustainability was a key topic at the conference.  Carina Gommers reminded us that greenwashing and greenbranding are very different: the former being something that hampers the consumer’s ability to understand the truth on sustainability; the latter being a positive practice aimed at conveying to the buying public that certain ‘good’ actions have been taken or thresholds met.  From a green branding perspective, trade mark law is again key: businesses have at their disposal collective, certification and their own bespoke trade marks to message sustainability drives or achievements to the public.  

From a greenwashing perspective, Adam Rendle had a stark message: they (the Competition and Markets Authority) are watching.  Advertising claims need to be made with care.  The inherent difficulty in understanding what ‘sustainable’ means, and, by association, what ‘eco’, ‘green’, or ‘natural’ really mean, do not give free licence to use those terms without clear, objective and supporting data.  Indeed, an ongoing CMA investigation (announced November 2020) has pinned down three main potential problems relating to sustainability-focussed advertising: (i) the claims are vague and unclear, and difficult to substantiate for that very reason; (ii) own-brand trade marks or descriptors (fashion lines labelled as “[BRAND] ECO” or “CONSCIOUS [BRAND]”) give the probably incorrect impression that the ‘sustainability’ of these lines has been somehow verified or approved by an objective third party; and (ii) the labelling of something as ‘sustainable’ gives no real insight into whether the end-to-end process is in fact sustainable, or just one part or feature, i.e. an ‘eco’ product might be derived from recycled fabric, but was it produced in a factory championing sustainable methods and supporting the local community?  We were told to expect change and guidance in terms of advertising sustainability in a compliant, non-misleading way, this Summer.  

The future

The future in terms of sustainability and fashion requires practical, technological and legal steps.  This was the conclusion from the second half of the conference, opened by Cristina Volpin (OECD) who gave us a tour of the interplay between competition law and sustainability and in particular the unlawfulness of certain agreements; and the exclusions that might apply where the agreement is ‘doing something’ for sustainability.  In particular, businesses should be mindful of Article 101 TFEU: agreements that would otherwise be anti-competitive won’t automatically be void if the agreement ‘contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit…’.  In theory this could create an exemption for businesses working together in ways that might otherwise be deemed anti-competitive, i.e. if there is a promotion of progress or the approach the parties are taking is driving efficiencies.  However, there is some debate about whether an agreement improving sustainability – which would arguably create a benefit for the global or a local community – in fact ‘benefits the consumer’ for the purposes of this exclusion.  

We were treated during the conference to insights from three sustainability experts and consultants with a huge amount of experience in industry: Alvise Lisca, Anna Sammarco and Francesca Brkic.  The focus of the future, it seems, is not just on sustainable activities but a complete rethink of business structures and service lines, and even the core economic models.  Here, we learned about the Circular Economy and the pivots that some businesses – traditional and start-up – are making in the fashion industry in order to overhaul their traditional and ‘unsustainable’ models into those which recognise that our resources are not finite.  Examples of fashion stores offering clothing rentals and repairs to extend product life, alongside initiatives (albeit expensive) aimed at sourcing, making and using new, more sustainable ‘mono-materials’, gave a lot of food for thought.  From an IP perspective, this innovation could require significant legal activity in order to fully benefit from and exploit the investment. 

The message for the future of fashion is clearly a stark one.  Things cannot continue as they are.  Practically (CO2 emissions from clothing production for the UK market are still increasing), economically (consumers are starting to turn to ‘sustainable’ brands), legally (regulation and incentives are coming) and technologically (blockchain may provide the answer!), change is coming; and it needs to come fast.  

Sadly, the writer could not attend the final session on blockchain led by Ashish Gadnis of BanQu.  However, given the calibre of the other speakers, there’s no doubt the session was full of insight and, hopefully, optimism about the impact blockchain can have on sustainability in the fashion industry.