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.
Marketers wishing to advertise breast augmentation/surgery, implants, devices, supplements or lotions must ensure that their ads are not misleading or irresponsible. In addition, marketers must ensure that they do not objectify or stereotype individuals, must not offend through use of gratuitous nudity and ensure ads adhere to any surrounding legislation.
In Europe, breast implants are regulated under the general Medical Devices Directive 93/42/EEC, which classifies medical devices according to risk and stipulates minimum requirements that the device must fulfil. Breast implants have been classified as Class III medical devices, the highest risk category, and must meet the most stringent requirements set out in the Directive.
Specifically in the UK, the Keogh Review, which was commissioned by the Department of Health, sought to address concerns about standards for cosmetic surgery following the PIP implant scandal which exposed lapses in product quality and after-care. Following the Government's review of cosmetic products and procedures, in October 2013 CAP and BCAP published the revised Guidance Note on Cosmetic Interventions. It now also includes important sections on the Use of production techniques, Before and After photographs, Responsibility, Targeting, Endorsements and Testimonials and Sales Promotions.
As well as information available on its website, the Department of Health published a booklet titled "Information for women considering breast implants". The booklet was updated by the Medicines and Healthcare products Regulatory Agency (MHRA) in November 2005 and is available here. The booklet gives information about breast implant surgery and provides a checklist of questions that the woman is advised to discuss with her surgeon so that she is adequately informed about the procedure, including expectations and the need for follow-up visits and surgery.
The ASA does not receive large numbers of complaints about breast implant ads specifically. In one investigation, Grosvenor House Centre For Aesthetic Plastic Surgery, October 2000, it concluded that no breast implant was guaranteed for life, whilst another company were found to be in breach of the Code due to the claim “Setting the Gold Standard”, as it implied that they were achieving the highest possible standard via independent measures but could not evidence this (Aesthetic and Cosmetic Ltd, 17 July 2014).
As with all ads for surgery, those looking to market breast implants should ensure that they do not trivialise the procedure, mislead about the invasive nature or safety of the procedure or exploit insecurities of consumers.
Marketers may offer breast surgery as long as claims about the results are achievable, not exaggerated and claims about its safety are not misleading. Furthermore, ads featuring nudity should be carefully targeted. Although the ASA is likely to consider a degree of nudity is acceptable and relevant, marketers might cause offence to some.
The ASA has upheld multiple investigations into whether breast surgery ads are irresponsible by targeting young people or vulnerable groups, or generally exploiting consumer’s insecurities. The ASA has recently upheld multiple complaints about ads for breast augmentation where the ads were seen to be harmful because they took advantage of young people’s insecurities (MYA Cosmetic Surgery Ltd, 19 April 2017 and TFHC Ltd t/a Transform, 6 July 2016). Furthermore, in 2018, the ASA upheld a complaint about a Transform TV ad because the ad was seen to exploit the insecurities of new mothers (TFHC t/a Transform, 3 January 2018).
Generally in ads, surgery should always be portrayed as something that requires time and thought - marketers looking to advertise surgery should never portray the procedure as “safe”, “easy” or “risk free” because no surgery is without risk. In 2014, a poster for the healthcare travel industry in Malaysia was found to breach the Code as it trivialised cosmetic surgery and suggested it could be incorporated into a holiday (Medical Tourism Association, 18 February 2015).
Marketers who want to advertise a non-surgical device should hold robust evidence of its efficacy and should not claim or imply it can help all women if it does not (Rule 12.1). Marketers should not exaggerate the likely changes in size, should make clear whether the results are temporary and should state significant conditions.
In the past, the ASA has received enquiries and complaints about so-called ‘natural’ products that claim to enhance women’s breasts. Notably, an oil that could supposedly result in bigger, firmer breasts (Angelica Products Ltd, September 2000) and herbal pills to enhance breasts (Cerdic UK Ltd, January 2000; Scanda Care, May 2000; Figure Plus, September 2000, and Erdic UK Ltd, January 2001). Needless to say, neither the ASA nor CAP has seen evidence to show that either the topical application of lotions or the ingesting of herbal pills can affect the size or firmness of breasts.
An ad for a product named “Boob Job” stated “I didn't see any noticeable results until around 6 or 7 weeks after I started using Boob Job, but when the results did start to show they were amazing! I've gone from a 32A/B to a much fuller and firmer 32C”. The ASA upheld the complaint because the testimonials included efficacy claims which implied that the product had an effect on breast size and firmness which could not be substantiated. In addition the ad claimed “Volufiline™ stimulates adipocyte differentiation and proliferation, and promotes lipid storage leading to an increase of adipocyte volume in the fatty tissue ... up to 8.4% improvement in volume ...” which was considered to be a medicinal claim for an unlicensed product, because it implied a pharmacological effect (Rodial Ltd, 14 September 2011). See our guidance on Testimonials and endorsements and Health: Medicinal Claims for more information.
Marketers should also be aware that implied claims may also be taken as claims of efficacy. In the past, the ASA ruled that the claim “0% Silicone” misleadingly implied that women’s breasts could be enhanced by taking herbal pills (Erdic UK Ltd, 25 August 2004).
Marketers promoting pills and food supplements should note that if the product is classed as a medical device, it will not also be considered a food, for the purpose of the CAP Code. Therefore, marketers may need to hold rigorous product specific scientific data, which proves that a medical device can work as described (rule 12.1). If the product is not classed as a medical device, the product is likely to be a food supplement and therefore the Food Rules (Section 15) will apply. CAP is unaware of any acceptable claims in relation to breast enhancement for these products, and marketers are urged to seek guidance from the Copy Advice team if they are unsure.
Marketers of all these products are usually advised to advertise their goods on an availability-only platform (with no direct or implied efficacy being made for the product) and should avoid making implied claims through the company/product name or through close-up photographs of cleavages (Erdic UK Ltd, January 2001). See Company and website names and Claims in product names.
Marketers should take particular care when offering promotions on breast enhancing surgery/implants, or offering the surgery/implants as a competition prize. By their nature sales promotions will usually be time limited, and the ASA ruled that an ad which stated “But hurry, offer must end midnight this Friday the 23rd of November” was irresponsible because of the short response time and because it trivialised the significant decision to have an invasive procedure (Liverpool Cosmetic Surgery Ltd, 20 March 2013). Similarly, the ASA upheld a complaint about another promotional offer because it was emailed to consumers who may not have previously considered surgery, and was only available for 24 hours, giving consumers insufficient time to consider the implications of surgery in full before committing (MyCityDeal Ltd, 23 November 2011).
Although the ASA has ruled that it is not necessarily irresponsible to offer surgery as a gift or a prize, marketers should take particular care when executing and administering these types of prize draws or competitions. Again, as competitions/prize draws are often time limited, offering invasive surgery as a prize could be seen to be irresponsible. Furthermore, it could be seen to portray surgery as a flippant decision (rather than a risk which requires careful consideration), which in itself could be viewed as a breach of the Code.
Marketers may find the Promotional Marketing guidance useful – however, we recommend that marketers wishing to advertise a sales promotion for cosmetic surgery contact Copy Advice in the first instance.