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 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’. But, 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).
When coupled with implicit or explicit references to facelifts (such as visuals of lasers, scalpels, syringes and other medical equipment associated with cosmetic surgery), the claim “non-surgical” is capable of misleadingly implying that the product or treatment can reproduce results consistent with those of a surgical facelift. If results are not immediate and permanent, for example in the case of topically applied creams, the claim is likely to be unacceptable. 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.
In 2012 the ASA upheld complaints against an advertiser who also implied that their product achieved comparable results to surgery. 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 it (Rodial Ltd, 11 January 2012). See Beauty and Cosmetics: "Non-surgical" and "surgical" type claims which advises specifically on anti-ageing devices that claim to offer “non-surgical facelifts”. Reference to it being a “non-surgical” device might be acceptable if the rest of the ad does not imply the results are equivalent to that offered by surgery.