Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
The Copy Advice team is often asked if a marketer may describe a cosmetic product or procedure as “non-surgical”. In short, this claim might be acceptable if it is being used to distinguish between surgical and non-surgical procedures offered (for example, by a clinic). In this instance, the advertiser has a legitimate reason for using the claim “non-surgical” and is providing factual information about the nature of the treatments offered, especially if the ad refers to a new or unusual treatment that the average reader might not fully understand.
CAP is aware of at least one treatment, known as Lipolysis or SmartLipo, which is not, in itself, ‘surgical’. However, to carry out the treatment, (which liquefies the adipose tissue) practitioners need to make an incision in the area requiring treatment. Marketers should not, therefore, describe such procedures as “non-surgical” or “non-invasive” (The Norton Clinic Ltd, 5 March 2008).
Similarly, marketers should be aware that the term “non-invasive” is likely to be understood as meaning that there is no introduction of instruments into the body. Marketers should also be aware that “non-surgical” does not always equate to “non-invasive”. As an example, the ASA investigated a complaint about an ad for a vaginal tightening procedure, which stated “Vaginal tightening with FemiWand is a non-invasive cosmetic procedure that restores the appearance and function of the vaginal area”. However, it’s very unlikely that a procedure such as this, which requires an object being inserted into the vagina, could be described as “non-invasive”. (Vivo Clinic Bristol Ltd, 13 February 2019).
Marketers should be aware that presenting a product as an “alternative” to surgery can often give the impression that the results are comparable. In 2016, the ASA upheld a complaint about a teleshopping ad, which described their product as an “alternative to liposuction” – the advertisers, however, could not provide the clinical evidence to substantiate this claim (Home Shopping Mall Ltd, 6 July 2016)
In addition, when coupled with implied references to surgery (such as visuals of lasers, scalpels, syringes and other medical equipment associated with cosmetic surgery), the claim “non-surgical” is still capable of misleadingly implying that the product or treatment can reproduce results consistent with surgery. In 2007, the ASA upheld a complaint that claims for a product implied that the effect was comparable to, and as permanent as, surgical procedures (Avon Cosmetics Ltd, 17 January 2007). The ASA considered that the claims "NEW CLINICAL DRAMATIC RESULTS. TAKE ACTION WITH THE AT HOME ALTERNATIVE TO SURGERY. THE NEW WAVE IN FACE LIFTS an exclusive technological skincare breakthrough", "and a thermal face lift is too expensive, "TRIPLE SONIC TECHNOLOGY" and "Ultrasonic stressed yeast" were comparing the advertised product to a surgical procedure or a thermal face lift performed using non-invasive radio frequencies. It considered that readers would expect an alternative to a face lift to have similar results and would infer from the claim "an exclusive technological skincare breakthrough" that the product had an effect different from and superior to other moisturising products. Because it had not seen satisfactory evidence for those effects, the ASA considered the claims misleading.
Likewise, in 2012, the ASA upheld complaints about a skincare product. One ad was titled "Forget the facelift", and was followed by text that stated "Sculpt and firm your jawline, without the need for surgery ..." and a second included a testimonial that stated "... these products really work and if you compare with the price of plastic surgery you'll see that they are not expensive at all ...". The ASA considered those statements clearly described the products as alternatives to surgery, and by doing so, implied they were as effective (Rodial Ltd, 11 January 2012).
In contrast, the ASA also investigated whether an ad for a face cream made an implied comparison to surgery through the use of a needle/syringe in a brief segment. However, the ASA concluded that the ad was simply showing a woman contemplating different anti-ageing options, rather than making a statement about the efficacy of the product (Beiersdorf UK Ltd, 1 May 2019). Marketers should nevertheless be aware of the overall impression that an ad will give to potential consumers. CAP have produced specific guidance on the marketing of surgical and non-surgical cosmetic procedures.