Summary of council decision:
Three issues were investigated, all of which were Upheld.
Six Instagram Stories for LIFT Aesthetics, a facial aesthetic clinic:
a. The first Instagram Story, seen on 20 June 2022, was a reposted Instagram Story on Carl J Woods’ account. It featured Mr Woods reclining on a salon treatment chair in the process of being injected with a syringe. Text stated “@carljwoods”.
b. The second Instagram Story, seen in June 2022, was a reposted Instagram Story on Mr Woods’ account. It featured Mr Woods reclining on a salon treatment chair, and Ellie May Mackenzie. Ms Mackenzie said, “Today we are doing anti-wrinkle on Carl … just a bit of a freshen up and so yeah we’ll be getting rid of these deep wrinkles.” Mr Woods then said, “You’re gonna [sic] make me look brand new yeah?” Miss Mackenzie then replied, “I’m gonna [sic] make you look brand new … we are using Allergan … a good brand”. The text “@lift.aesthetics”, “@elliemackenziexx” and “@carljwoods” also featured.
c. The third Instagram Story, seen in June 2022, was a reposted Instagram Story on Mr Woods’ account. It featured Mr Woods reclining on the same chair and Ms Mackenzie holding a vial of liquid. The text “@lift.aesthetics”, “@elliemackenziexx” and “@carljwoods” also featured.
d. The fourth Instagram Story, seen in June 2022, was a reposted Instagram Story on Mr Woods’ account and showed him being injected with a syringe in his forehead.
e. The fifth Instagram Story, seen in June 2022, was a reposted Instagram Story on Mr Woods’ account and showed him continuing to be injected with a syringe in his forehead.
f. The sixth Instagram story, seen in June 2022, was a reposted Instagram Story on LIFT Aesthetics account. It featured Mr Woods who said, “So yesterday I had my anti-wrinkle injection done with Ellie and the best part about it is, it was absolutely pain free and I can’t wait to see the results in two weeks and I’ll look brand new …” Text on-screen stated “@lift.aesthetics” and “@ellemackenziexx”.
The complainant challenged whether:
1. ads (a)-(e) were obviously identifiable as marketing communications.
The ASA challenged whether the ads:
2. breached the Code because they advertised a prescription-only medicine to the public; and
3. used a celebrity to endorse a medicine.
1, 2 & 3. LIFT Aesthetics confirmed that Mr Woods did not pay for the Botox treatment featured in the ads. However, they asserted that they did not require Mr Woods to post about his treatment. They also stated that they were aware that it was a breach of the CAP Code to refer to Botox in marketing communications because it was a prescription-only medicine (POM), although they did not realise that references to anti-wrinkle injections were not permitted. They confirmed that they were now aware of the Advertising Guidance and as such would use that terminology in future advertising.
Carl J Woods said that he was not promoting an aesthetic treatment but that he was sharing his own personal experience on social media. He confirmed that the posts had since been removed.
The CAP Code stated that marketing communications must be obviously identifiable as such, and that they must make clear their commercial intent if that was not obvious from the context.
The ASA first assessed whether ads (a)-(e) were ads for the purposes of the CAP Code. We understood that there was no contractual agreement between Mr Woods and LIFT Aesthetics; however, we considered that the provision of free Botox treatment constituted a payment to Mr Woods. We then assessed the degree of control LIFT Aesthetics had over the Stories. We acknowledged that there had been no explicit contractual requirement for Mr Woods to post the Stories. Nonetheless, we considered that LIFT Aesthetics likely expected Mr Woods to publicise the treatment on social media when providing him with free Botox treatment. We also noted that ads (a)-(e) were Stories by LIFT Aesthetics which were reposted by Mr Woods. LIFT Aesthetics exerted editorial control over the messaging in their own original posts and we considered they maintained that level of editorial control over the Stories re-posted by Mr Woods by assuming that he would repost them in exchange for the free treatment. We noted that ad (f) was a Story by Mr Woods which was re-posted by LIFT Aesthetics. In the original post, Mr Woods referred to the Botox treatment as “anti-wrinkle”, using similar language to that of the original posts by LIFT Aesthetics, which were re-posted by Mr Woods in ads (a)-(e). We noted the similarity in language used by both LIFT Aesthetics and Mr Woods and considered it unusual that Mr Woods did not identify the treatment as “Botox” given that was typically the vernacular for such treatment. We also understood that LIFT Aesthetics referred to the treatment as “anti-wrinkle injections” to avoid using the term Botox which they understood was a breach of the CAP Code, and the language used by Mr Woods appeared to reflect that used by LIFT Aesthetics.
We therefore considered that there was an implicit agreement that Mr Woods would repost the content LIFT Aesthetics had produced, and that LIFT had exerted editorial control over the language used by Mr Woods. In conjunction with the free treatment, we considered that the circumstances surrounding the ads meant that they were marketing communications within the scope of the Code.
We then assessed ads (a)-(e) and considered there was nothing that made clear to those viewing that they were ads. We acknowledged that “@lift.aesthetics” was tagged in some of the ads, but we considered that this was not sufficient to make clear to consumers that they were ads. We therefore concluded that the ads were not obviously identifiable as marketing communications.
On that point, ads (a), (b), (c), (d) and (e) breached CAP Code (Edition 12) rules 2.1, 2.3 and 2.4 (Recognition of marketing communications).
The ASA understood the advertising of POMs to the general public was prohibited by the Human Medicines Regulations 2012 (HMRs) and that was reflected in CAP Code rule 12.12. However, we further understood that certain types of content that could be characterised as reference material or announcements of a factual and informative nature were not covered under the scope of HMR’s definition of advertising and, as a result, could not be considered advertising for the purposes of rule 12.12. We therefore assessed the Instagram Stories to establish whether they were of that nature and if they could be considered as advertising for the purposes of rule 12.12.
We understood that Botox was a trading name for a form of a specific botulinum toxin type A product and that it was a POM. We noted that LIFT Aesthetics confirmed that Mr Woods underwent Botox treatment but that the ads did not refer to “Botox” directly. Instead, the ads showed Mr Woods undergoing an aesthetic treatment, whilst his face was injected with a syringe, and speaking about the benefits of that treatment taking effect in two weeks. We also noted that ad (b) included a reference to “Allergan” which we understood was another brand of Botox, and that both ads (b) and (f) referred to the treatment as “doing anti-wrinkle” and “anti-wrinkle injection”.
We considered that the use of “Allergan” was a direct reference to a POM, and as such, was a breach of the CAP Code. We further considered that references to “doing anti-wrinkle” and “anti-wrinkle injections” were indirect references to Botox and had the same effect as promoting a POM. We also considered that the reference to waiting two weeks for “results” further suggested that Mr Woods had undergone Botox treatment in the ads rather than a non-POM cosmetic intervention, such as dermal fillers. Whilst we acknowledged that ads (a), (c), (d) and (e) did not contain such references, we noted that they showed Mr Woods undergoing facial injections and considered that they were ambiguous as to the treatment provided, and within the context of the ads as a whole, that they further implied Mr Woods underwent Botox treatment. We considered that the ads went beyond the provision of factual information and instead served to promote Botox making it appear more appealing to consumers. We therefore considered that the ads constituted the advertising of Botox as defined by the HMRs and reflected in the CAP Code.
On that point, the ads breached CAP Code (Edition 12) rule 12.12 (Medicines).
The CAP Code stated that marketers must not use health professionals or celebrities to endorse medicines. We therefore assessed whether Mr Woods had endorsed a medicine and whether he was a celebrity for the purposes of the CAP Code.
We were satisfied that the treatment received by Mr Woods was a POM. We noted that ads (a), (c), (d) and (e) showed Mr Woods undergoing the POM treatment and that they were re-posts by Mr Woods of content originally posted by LIFT Aesthetics. We also noted that in ad (b) Mr Woods was heard saying “You’re gonna [sic] make me look brand new yeah?” and in ad (f) he stated “… the best part about it is, it was absolutely pain free and I can’t wait to see the results in two weeks and I’ll look brand new.” We considered that by reposting Stories, which showed him undergoing the treatment, and discussing the benefits and efficacy of the treatment, consumers would understand the ads to mean that Mr Woods recommended undergoing the POM treatment. On that basis, we considered that Mr Woods had endorsed the medicine.
We then assessed whether Mr Woods was a celebrity for the purposes of the CAP Code. We noted that Mr Woods described himself as reality TV star and had approximately 230,000 followers on Instagram. We considered that indicated he had the attention of a significant number of people. Given that he had the attention of a large audience, we considered that Mr Woods was a celebrity for the purposes of the CAP Code.
Because we considered that Mr Woods was a celebrity for the purpose of the CAP Code and that he had endorsed a medicine, we concluded that the ads had breached the CAP Code.
On that point, the ad breached CAP Code (Edition 12) rule 12.18 (Medicines, medical devices, health-related products and beauty products).
The ads must not appear again in the form complained of. We told Carl J Woods and LIFT Aesthetics to ensure that their ads were obviously identifiable as marketing communications, for example by including a clear and prominent identifier, such as “ad”. We also told them not to promote prescription-only medicines to the general public in future and to ensure that they did not use celebrities, including reality TV stars, to endorse medicines.