Cosmetic Surgery - Critique of (the Regulation of) a Market

Since the 1980s, there have been several debates in the UK on the advertising and representation of cosmetic procedures. In 1981, Dr Davies of the Department of Plastic Surgery at St Thomas’ Hospital already warned against the commercialisation of cosmetic surgery, stating that “it is intolerable that [cosmetic surgery operations] should be marketed with the same commercial vigour as soap powders and advertised to saturation point in both press and [London] underground stations” (Davies 1981: 1075). In more recent years, in accordance with Davies and following several other European countries⁶, several organisations have proposed a ban on cosmetic surgery advertising. In 2012, BAAPS and UK Feminista, for example, called for an overall ban on the advertising of cosmetic procedures. Among the advocates of the proposed ban were Labour МЕР Linda McAvan and Labour MP Ann Clwyd, who introduced the Cosmetic Surgery (Minimum Standards) Bill (2012) “to establish minimum standards for the practice of cosmetic surgery”. In fact, Mrs Clwyd had already attempted to introduce a Bill on the regulation of cosmetic surgery in 1994 “to stop any more innocent people being subjected to [cosmetic surgery] butchery at the hands of some greedy and unscrupulous people” (Regulation of Cosmetic Surgery Bill 1994). Whereas the 1994 Bill focused only on restricting unregistered and unqualified surgeons, the Cosmetic Surgery (Minimum Standards) Bill advanced in 2012 not only underlined the problem of unregistered physicians but also proposed to prohibit adverts for cosmetic procedures, both surgical and non-surgical. However, the 2012 Bill did not pass its first reading in the House of Commons and was therefore discarded.

Although Mrs Clwyd’s Bill was rejected, the government commissioned an independent review of the cosmetic surgery industry after the PIP implant scandal of 2010. Led by Sir Bruce Keogh, former NHS Medical Director, a research group was established to assess the field and provide recommendations to improve patient safety. The research report, published in 2013, emphasised that patients need to become more aware of the risks that cosmetic procedures involve. In order to achieve this, the report recommended a mandatory code of conduct for advertisers who market cosmetic interventions because “it is very important that practitioners taking cosmetic procedures and operations manage people as patients and not consumers when marketing to them” (Keogh et al. 2013: 35). The Sir Bruce Keogh report was received enthusiastically by the Department of Health, which is evident in the official Government Response to the Review of the Regulation of Cosmetic Interventions. The governmental response emphasised how “[people’s] decision to go for [cosmetic] treatment in the first place should be their own and not one influenced by aggressive marketing” (Poulter 2014: 2). To support people in making their own decisions, the government launched a Body Confidence Campaign designed “to support increased resilience to low body image and more informed and confident decision-making ...” (ibid). Moreover, the recommendations regarding the prohibition of advertising “time-limited deals, financial inducements, package deals such as ‘buy one get one free’...” proposed in the Sir Bruce Keogh review was accepted in the governmental response. In order to discourage certain types of advertising, the Committee of Advertising Practice (CAP) has adjusted their regulations and introduced a Help Note in 2016 concerning the marketing of surgical and non-surgical cosmetic procedures, which will be discussed in the next section.

The most recent effort to regulate the cosmetic surgery market was presented in the form of the Cosmetic Surgery (Standards of Practice) Bill, which was proposed by Labour MP Kevan Jones in October 2016. In the Bill’s first reading, Mr Jones criticised adverts for cosmetic procedures, describing some of the marketing techniques as “more appropriate for selling double glazing than cosmetic surgery”, and called for a ban on “such aggressive marketing”⁷. The Bill was scheduled to have its second reading on 12 May 2017; however, following the announcement of a general election, Parliament was dissolved and, with no possibility for a second reading, the Bill was annulled.

Cosmetic Surgery - Advertising Regulations in the UK

Despite governmental efforts, it has proven difficult to regulate cosmetic surgery advertising. Nevertheless, all adverts published in the UK are regulated by the Advertising Standards Authority (ASA) through the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code). As stated above, special guidelines related to the marketing of cosmetic procedures can be found in a Help Note published in 2016. Moreover, some of the general sections of the CAP Code - particularly Section 12 on the marketing of medicines, medical devices, health-related products, and beauty products - are also relevant here:

• 1.3: Marketing communications must be prepared with a sense of responsibility to consumers and to society (CAP Code 2010: 11) 4.1: Marketing communications must not contain anything that is likely to cause serious or widespread offence (ibid: 4)
• 12.12: Prescription-only medicines or prescription-only medical treatments may not be advertised to the public (ibid: 59)
• 12.17: Marketers must not suggest that a medicinal product is either a food or a cosmetic (ibid: 60)
• 12.18: Marketers must not use health professionals or celebrities to endorse medicines (ibid)
• 13: Ads must not mislead as to what an advertised intervention is likely to achieve for the average consumer (CAP Code 2016: 7) 22: Advertised claims, including visual claims, should not misleadingly exaggerate the effect the cosmetic intervention is capable of achieving (ibid: 8)
• 33: Ads should not trivialise cosmetic interventions or suggest that they be undertaken lightly... (ibid: 10)
• 34: Marketers should not play on consumers’ insecurities. They should not irresponsibly imply that a cosmetic intervention will be able to solve a consumer’s personal or emotional problems or improve their situation after a difficult life event (ibid)
• 57: Botulinum toxin [Botox] products are regulated as prescription- only medicines which should be injected by a suitably qualified health professional. They may not be advertised to the public: however, they may be advertised to healthcare professionals ... (ibid: 13)
• 59: Advertising for cosmetic clinics and beauty salons may promote the services they provide. However, they should do so in a nonspecific way without a reference to botulinum toxin injections, for example “a consultation for the treatment of lines and wrinkles” (ibid: 13)

Although these CAP ‘rules’ may seem clear-cut, several questions and issues arise. For example, why is advertising for prescription-only medicines and/or medical treatments prohibited whereas cosmetic procedures can be marketed? Moreover, as will be demonstrated later, cosmetic procedures are frequently trivialised and/or presented as similar to (other) beauty products; however, this has rarely been flagged by the ASA. I return to these concerns in the final chapter.

Because it would be impractical, if not impossible, to inspect all advertising before it is published, the ASA is largely reactive in nature and responds to consumers’ complaints regarding particular advertising campaigns. When an advert is found to be in violation of the CAP Code, the ASA does not have the legal power to ban it; however, they may sanction marketers who breach the Code and, in extreme cases where the advertising body refuses to comply and withdraw a controversial advert, report them to Trading Standards or Ofcom.

Upon investigation, it appears that the ASA has successfully intervened in various cases where adverts for cosmetic procedures were in breach of the CAP Code. For example, in 2011, two adverts were withdrawn as they either “[pressured] consumers into hurriedly making life-changing decisions in just a few hours” (Sweney 2011a) or trivialised the cosmetic procedure advertised (Sweney 2011b). More recently, a TV advert by cosmetic provider Make Yourself Amazing (MYA), was banned as the tone of the ad and the glamourised focus on the results of breast augmentation surgery trivialised the decision to undergo cosmetic procedures (Advertising Standards Authority 2018).

In light of the increasing regulatory restrictions placed on cosmetic surgery advertising and a renewed emphasis on the ASA’s regulatory responsibilities, marketing bodies have been looking for new ways to advertise their services (Tesseras 2013). Both Transform Cosmetic Group and MYA Cosmetics, for example, have stated that they will no longer use celebrities in adverts for their services. Although this declaration has been praised as a laudable step in the right direction by those critical of cosmetic surgery advertising, it is not mentioned that it is actually forbidden to use celebrities to endorse medicines or medical procedures, as detailed in section 12.18 of the CAP Code.

In another attempt to counter critiques of cosmetic surgery advertising, MYA introduced the use of ‘real women’ in their adverts in 2013. However, magazines allegedly turned down the adverts featuring these new models with “extra flesh around their stomach and thighs” because the women featured were not perfect enough (Tesseras 2013). In response to the rejection of the advertising campaign, Michael Tilley, former marketing manager at MYA Cosmetics, stated, “we are trying to [use] real women with real problems [s/c] in our promotions rather than celebrity patients but it seems that publishers cannot move away from the images of Victoria’s Secrets-esque bikini models” (quoted in The Huffington Post 2013). However, as it cannot be confirmed that magazines actually rejected the advertising campaign, sceptics have argued that MYA’s new campaign could have been a marketing stunt (ibid). Still, the inclusion of ‘real women’ reflects a broader trend in advertising as an increasing number of beauty brands emphasise their desire to promote (women’s) body confidence.

Cosmetic Surgery and the National Health Service

The UK has a National Health Service (NHS), which means that UK residents can get medical care for free at the point of access⁸. However, the NHS does not fund elective procedures, which means that it rarely funds cosmetic procedures; the NHS will only agree to finance an aesthetic procedure when there is “significant psychological distress” (NHS Choices 2019). As the criterion of ‘significant distress’ is vague and undefined, there have been numerous reports of cases where the NHS has been duped into providing cosmetic procedures⁹. Considering that NHS resources are stretched, it is unsurprising that examples of people exploiting the system have generated great dissatisfaction, culminating in Health Secretary Jeremy Hunt calling for an end to all NHS sponsoring of cosmetic surgery in 2014 (Tran 2014).

The tensions around the topic of funding cosmetic procedures and public healthcare have had a profound impact on the discourses justifying cosmetic surgery in the UK. Gimlin (2007: 53), for example, found a significant difference between American and British women’s discussions on how they financed their procedure in a cross-cultural study of cosmetic surgery narratives of women in the US and the UK. Inspired by the American values of free choice and action in medical practice, women in the US took pride in spending money on themselves; however, a wholly different narrative emerged among British women. In the UK, women distanced themselves from any suggestion of vanity traditionally associated with cosmetic surgery and emphasised that they would only pay for cosmetic procedures with ‘unexpected money’ (e.g. an inheritance or a tax rebate). Gimlin (2007) relates this emphasis on ‘special’ money to the traditional healthcare rationing and publicly shared resources in the UK. Gimlin’s results reflect the findings of an earlier market report conducted by Mintel (2006: 15), which detected a major discrepancy between the “American [beauty] dream” and the British one in relation to cosmetic surgery; taking control of one’s appearance in the US was not seen as vanity, but rather “[as] the endorsement of [people’s] right to improve their self-esteem”. However, in the UK, people seemed more reluctant “to associate themselves with the more aspirational and esteem- based issues that relate to the concept of surgery, which are widely embraced in the US” (ibid: 39).