The French Health Certificate Law for Models: What If...?

*** The writing does not, and is not intended to, constitute legal advice by any means***

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Picture Me (2009)
A must-watch fashion documentary about the plight of models

For today's post, I received interested queries via DM to communicate with my readers, as I promised in this month's Editor's Letter. One question, which captivated my imagination, addressed what would happen if the United States government implements a law that's comparable to a French law regulating models' health. The law, which was rolled out in 2015 in response to the tragic death of a model suffering from anorexia, requires models to submit doctor's notes confirming in writing that they are of a healthy weight in order to model in France. At first, the 2015 law tried to adopt the BMI index (body mass index) as a proxy for healthiness, but critics pointed out that BMI is not an accurate indicator for judging whether a model is in good bodily shape. Apart from the issue of its efficacy, the law seems to be vigorously enforced. When I talked to models, they said getting a doctor's note has become a routine part of modeling.

Against this backdrop, let's fancy a scenario in which the United States Department of Labor issues a federal regulation that would subject models to turn in doctor's notes to be eligible for rendering their modeling services. Then, let's further assume that affected individuals (to satisfy the requirement of standing) raise a facial constitutional challenge to the regulation. (It's just a hypothetical and I can hardly see why models or agencies would protest the issuance of this imaginary law.) When a governmental regulation allegedly encroaches upon an individual's constitutional right, the Supreme Court would review its constitutionality by applying different levels of scrutiny. For example, a law that violates the very fundamental constitutional right or involves a suspect classification such as religion or race is subject to the highest bar (it's called a strict scrutiny in legalese). There's no express right to work in the U.S. Constitution, and the Supreme Court hasn't find one impliedly, either. So, again, I will just assume for the sake of this exercise that there is a constitutionally guaranteed right to work.

So let's start the analysis. I think that our imaginary regulation being challenged would highly likely to be subject to the lowest level of scrutiny: rational basis review. To pass the constitutional muster, the regulation must have a legitimate state interest, and there must be a rational connection between the regulation's adopted means and stated goals. See Nebbia v. New York, 291 U.S. 502 (1934). In other words, the attorney general for the government cannot merely come up with pretexts for why it decided to put into practice the regulation. Here, I think the government has a legitimate interest in making sure that models, which often include teenagers, should remain healthy nutrition-wise. The means adopted, which is the receipt of a doctor's note, are reasonably connected to the stated goal of ensuring healthy lives for models who are often pressured to be on a strict regimen. So, in my opinion, the imaginary regulation would be constitutional in the eyes of the law.

Having said this, although I discussed the hypothetical for mostly illustrative purposes, the health issues of models are real and shouldn't be neglected. The industry is getting better and better, as you could hear from the media, but there are definitely rooms for further improvement. "Plus-size" models (for the lack of a better term) such as Paloma Elsesser and Jill Kortleve are leading the pack, landing on the covers of American Vogue, which is largely seen as the seal of approval in the industry. If you are interested in the issue, please take a moment to read my interviews with Ansley Gulielmi, Roman Young and Karen Elson for where the next steps lie to build a safer working environment for models. I would like to conclude this post by thanking my reader (whom I promised anonymity) for this wonderful contribution! Please don't hesitate to e-mail me or leave a comment if you have interesting topic ideas you'd want to see addressed in my blog.