AuthorHaneman, Victoria J.
PositionSymposium Conference: Are You There Law? It's Me, Menstruation

Period poverty became the subject of global media attention when it was reported that a schoolgirl used a rolled sock because her mother was unable to afford the purchase of sanitary pads, (1) thereby focusing attention on the fact that those living in poverty may not be able to cover basic expenses that include shelter, food, and in this instance, hygiene. (2) In the United States, 41% of children live in low-income families. (3)Almost 13% of women and girls live in poverty (as compared to 11% of boys and men). (4) Period poverty is an example of stigma and taboo colliding: The poor are stigmatized and menstruation is taboo. The law imposes rules that reinforce taboo around basic biological processes such as birth, (5) death, (6) and sex. (7) To the extent that a taboo constrains individual autonomy, it also impacts economic choice--shaping and limiting options for women and also deriving profit at the expense of women. (8) The white patriarchy has spent the past century stigmatizing, co-opting, and then reshaping spaces that either seriously impact or involve women, and turning deeply personal organic life moments for women into highly profitable capitalist markets.

A menstruation industrial complex has arisen to commercialize the monthly clean-up of uterine waste, and it is interesting to consider the ways in which period poverty and menstrual capitalism (9) are opposite sides of the same coin. Given that the average woman will dispose of 250 to 300 pounds of "pads, plugs, and applicators" (10) in her lifetime and menstruate for an average of thirty-eight years," this is a marketplace with substantial profit to be reaped even from the marginalized poor. (12) As consciousness of issues such as period poverty and structural gender inequality increases, menstruation marketing has evolved and gradually started to "go woke" through messaging that may not be genuine. (13) Companies are profit-seeking and the woke-washing of advertising, or messaging designed to appeal to progressively-oriented sentimentality, is a legitimate concern. (14) Authenticity matters to those consumers who would like to distinguish genuine brand activism from an appropriating marketing device, but few objective approaches are available to assess authentic commitment.

This Essay considers the profit to be made in virtue signaling solely for the purpose of attracting customers and driving sales: Pro-female, woke menstruation messaging that may merely be an exploitative and empty co-optation. Feminists should expect more of menstrual capitalists, including a commitment that firms operating within this space address the diapositive issue of period poverty and meaningfully assist those unable to meet basic hygiene needs who may never be direct consumers. This Essay serves as a thought piece that first presents, in Section I, the B Corporation as a relatively new direction in corporate law that redefines the corporation as a potential agent of social change. Section II considers the way in which B Corporation certification may serve as an implicit sorting device to distinguish companies performing hollow virtue signaling from those menstrual capitalists committed to socially responsible pro-female business practices.

  1. The B Corp to Facilitate Reappropriation

    The term "greenwashing" was coined in 1986 to refer to companies that exaggerate a commitment to the environment, (15) "faux CSR" was coined in 2011 to refer to firms that misrepresent a commitment to social responsibility, (16) and most recently, "woke washing" has come to refer to appropriating language of social activism into marketing campaigns. (17) We see, manifested through language, more than three decades of concern that progressive marketing campaigns are empty words. One study estimates that women control 70% to 80% of all consumer purchasing. (18) Counterhegemonic marketing tactics may drive profit, but if not authentic, they are commoditizing feminism in a way that is base, appropriating, and exploitative.

    Consumers have reason to be wary about misleading "femvertism" related to the marketing of menstrual products--or the exploitation of feminism simply to sell products. "Slacktivism" or low-effort activism will exploit a cause only for marketing purposes or production value, but the company itself takes no action to support the cause. (19) It is supporting a cause in a performative or minimally burdensome (and likely minimally productive) way. Problematically, the advertising industry has exploited rather than empowered women for decades. Marketing campaigns carry diagnostic value for a consumer: Attribution research suggests that when a consumer learns about the behavior of a firm about which they have little information, they tend to take the behavior at face value. (20) Slacktivism is troubling in that it should not carry diagnostic or informational value for the consumer, and yet likely does.

    Studies also suggest that a genuine business commitment to a social purpose requires "a substantial change in the business model." (21) To that end, we consider the B Corp--a certification for businesses that have decided to focus on purpose alongside profit--and the use of B Corp certification as an important consumer signaling device to identify some verified level of sincerity.

    While benefit and public benefit corporations are U.S. state-legislated corporate entities, B Corp status refers to a certification awarded by a 501(c) U.S. non-profit organization called B Lab. B Corps are companies that have chosen to participate in an exhaustive auditing process wherein B Lab attempts to verify and measure a business's "current impact" through a comprehensive rating system. (22) The B Impact Score is a company-level rating for certified B corps that includes targeted sub-ratings in categories such as governance, workers, community, and environment. (23) The result of this scoring process is a publicly accessible B Impact Report. Annual certification fees may range from $1,000 to $50,000, and a firm must be recertified every three years. (24) Any firm that is formed in a state that recognizes benefit or public benefit corporations must elect this status within a few years to retain B Corp certification, (25) but benefit corporations (as a legal entity) are not generally held to the rigorous standards met through B Corp certification. (26) Criticism of B Lab's certification process concerns the fact that B Lab is a private organization establishing its own standards, and there is not necessarily full transparency built into the certification process itself. (27) Further, any time a certified B Corp wishes to walk away from certification, for whatever reason, they may do so (e.g., Etsy) and no list is made publicly available of those who have chosen decertification. (28) A recent study suggests that as many as 34% of successfully certified B Corps have chosen decertification. (29)

    The B Corp movement is gaining traction globally, with now more than 3,500 B Corps worldwide. (30) Since the pandemic summer of 2020, two more B Corps have gone public and six large multinationals are starting the process to qualify for certification. (31) Mainstream venture capital firms are investing in B Corps, and some venture capital firms themselves have become certified B Corps. (32) To be sure, the B Corp certification process is labor and cost intensive--requiring transparency and continual impact...

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