Part 1 – The risks of advertising cosmetic surgery
If you are a medical practitioner who performs cosmetic surgery and procedures in Australia, it is crucial that you understand the new raft of practice and advertisement guidelines that are set to apply from 1 July 2023.
As a response to the Independent review of the regulation of medical practitioners who perform cosmetic surgery published on 1 September 2022, the Medical Board of Australia (MBA) and the Australian Health Practitioner Regulation Agency (AHPRA) have issued industry-wide reforms to introduce higher standards for practitioners, a new endorsement regime and crack-down on advertising.
The 2022 review found that the cosmetic surgery sector in Australia has become a “market disrupter”, in that universal standards for education, training and qualifications are non-existent. This is because under current legislation, cosmetic surgery is not recognized as a ‘medical specialty’. As such, any medical practitioner with a general registration (and no specialized training) can perform cosmetic surgery.
However, the 2023 reforms to the cosmetic surgery industry in Australia threaten to significantly restrict the conduct of what the regulators considered to be “cosmetic cowboys” within the highly lucrative industry. As of 19 April 2023, the Australian Medical Council Limited (AMC) introduced a new set of accreditation standards for the MBA to accredit education and training providers within the sector. While not rising to the level of surgical training required for other surgical specialties, the accreditation standards are intended to serve as universal minimum standards for the education, training and qualification of cosmetic surgeons.
Indeed, in the day following the AMC’s statement, the Queensland Minister for Health and Ambulance Services Yvette D’Ath announced new laws to ensure only qualified doctors who have completed the appropriate accredited surgical training can use the title “surgeon” when promoting their services. Introduced on behalf of all states and territories, practitioners who call themselves “cosmetic surgeons” without the requisite training will face up to three years imprisonment and a $60,000 fine.
In this two-part series, the team at BlackBay Lawyers have delved into the new guidelines and regulations that will apply to practitioners and business-owners in the cosmetic surgery industry, navigating the practice and advertising changes required to stay compliant with Australian regulators in 2023.
Background: Advertising cosmetic surgery
It is no secret that advertising plays an essential role in the establishment and success of practices that provide cosmetic surgery and procedures due to the discretionary nature of the services. Social media, in particular, is a crucial tool for many practitioners to market their services and engage directly with consumers, bolstering their influence and reputation by sharing images of their clients.
Under the Health Practitioner Regulation National Law (the National Law) 2009, the December 2020 Guidelines for advertising a regulated health service were developed to assist advertisers to understand their obligations when advertising services such as cosmetic procedures and surgery. Those guidelines apply to anyone – whether they are a registered health practitioner or not – who advertises a regulated health service.
The 2020 guidelines provide that advertisers must not:
Make false, misleading or deceptive claims;
Make unlawful claims about specialist registration or endorsement;
Offer a gift, discount or other inducement to attract a person to use the service or the business, unless the advertisement also states the terms and conditions of the offer;
Use testimonials or purported testimonials about the service or business;
Create an unreasonable expectation of beneficial treatment; or
Directly or indirectly encourage the indiscriminate or unnecessary use of regulated health services.
The new Guidelines for registered medical practitioners who advertise cosmetic surgery, developed by the MBA under the National Law, build upon the previous guidance and are designed to address the risks involved with cosmetic surgery advertising. These guidelines apply to medical practitioners who are registered under the National Law, and who are generally considered responsible for the advertisement of their practice. Importantly, a distinction is drawn in these guidelines between:
cosmetic surgery; and
non-surgical cosmetic producers.
The former, which is the subject of these guidelines, involves cutting beneath the skin. Examples of procedures include breast augmentation, abdominoplasty, rhinoplasty, surgical face lifts, liposuction and fat transfer.
While the guidelines do not explicitly state that the changes will apply to advertisements created prior to 1 July 2023, AHPRA has separately directed medical practitioners to “review and clean up advertising – websites, social media and past posts.” As such, practitioners now have three months to audit their advertising procedures in order to avoid being prosecuted in Court for breaches of the National Law, or the subject of Board disciplinary processes.
The most relevant changes and standards introduced by the guidelines are explored below:
The New Guidelines
1. Practitioner Responsibility
The guidelines provide that cosmetic surgery must not be advertised in a way that exploits the vulnerability or insecurities of individuals to increase demand for cosmetic surgery. Practitioners must understand that there is a strong demand from patients who are not suitable candidates for cosmetic surgery because of psychological disorders such as body dysmorphic disorder (BDD).
2. Titles and training
Only registered medical practitioners who hold specialist registration in a recognised specialty may use that title in advertising. Claims about a practitioner’s experience must be accurate and not mislead the public. For example, the use of terms such as “magic hands”, “sculptor”, “queen” or “world renowned” are inappropriate as they may be misleading or create unrealistic expectations. The use of those terms in taglines or hashtags is similarly not permitted.
3. Financial and other incentives
Advertising must not offer incentives, gifts discounts or inducements that would encourage people to have cosmetic surgery. Unlike the former guidelines, this prohibition applies whether or not terms and conditions are also available. Examples of such incentives may include offering discounted packages or ‘bundling’ of multiple procedures or offering a prize for promoting a practitioner or practice.
4. Testimonials
As previously stated, the use of testimonials is prohibited in advertising. Practitioners are considered to have used testimonials in advertising even where the testimonial is published in a restricted way, such as through a social media ‘stories’ function.
Testimonials are also considered to be used where a practitioner links a testimonial published via a third-party advertiser, re-shares stories or posts made by patients that are recommendations or positive statements, or interacts with a review through liking or responding to social media posts. As such, it is crucial that practitioners take steps to ensure they do not interact with or allow testimonials to be published on third-party websites or pages. Suggested measures include disabling reviews, comments or tagging functions on social media platforms.
5. Social media influencers
If a practitioner or advertiser enters into an arrangement with a social media influencer or content-creator, they are held responsible for the advertising content that is published by these individuals. As such, practitioners must ensure that any arrangement adheres to the advertising guidelines, including the use of testimonials.
In order to minimise risk, practitioners, businesses and influencers who enter into such agreements should ensure all contracts and agreements are soundly drafted to ensure each party is aware of their obligations under the agreement and restrictions imposed upon their conduct.
6. The use of images
The guidelines provide that a practitioner must not use single images when the use of the image is:
Likely to mislead the public as to an outcome of a surgery;
Idealise cosmetic surgery; and
Increase unreasonable expectations.
Examples of the inappropriate use of such images includes the depiction of naked bodies, body parts in lingerie or swimwear, images of models and celebrities, or ‘stylized’ images with choice lighting, soft or black and white filters. All images used must also include prominent warnings that the outcomes depicted are only relevant to the patient shown, and that results may vary due to factors such as genetics, diet and exercise.
In addition, ‘before and after’ images must be presented so that the prominent, or first image must be either a combination of the ‘before’ and ‘after’ images, or the ‘before’ image. The two photos must depict similar content, lighting, angles, background, posture and makeup. The guidelines further prevent:
The editing or enhancing of before and after images via filters, retouching, or grey-scale;
The use of photographs, videos or imagery focused on ‘entertainment’, including images that include music, dancing, singing, montages, or voice-overs where such voice-overs are not educative.
Idealizing or sexualizing cosmetic surgery through suggestive sexual poses, the parting of legs, hands placed near genitals, or oiled bodies;
Using icons such as emojis to cover body parts or indicate an ‘emotional’ reaction to an image;
Using lifestyle shots such as images taken by a beach, pool, on a bed, in a bedroom or hotel room; and
Writing captions or descriptions that idealise cosmetic surgery with terms such as ‘more natural’, ‘hot’ or ‘younger’.
7. Idealising cosmetic surgery
The guidelines emphasise that all cosmetic surgery is invasive and carries risks to patients. Accordingly, practitioners must ensure that full information concerning the risks of surgery can be easily located within advertising. As cosmetic surgery is a serious decision, advertisements must not:
Offer surgery as a competition prize;
Describe surgery as ‘gentle’, ‘simple’, or depict the process as ‘quick’;
Minimize the invasives by using words such as ‘artistry’ or ‘silhouette’;
Use colloquial terms including ‘boob job’, ‘tummy tuck’ or ‘Brazilian butt lift’; and
Idealise surgery through marketing terms and non-clinical adjectives such as ‘transformation’, ‘amazing’, or ‘Barbie’.
8. Body image and mental health
As discussed above, the guidelines require practitioners to recognize that not all patients have a realistic view of their body image. Cosmetic surgery advertisements should not suggest that surgery is the only option for individuals who are unhappy with their appearance, nor encourage patients to undergo multiple surgeries at one time.
The use of language to imply that a normal bodily change, shape or feature is abnormal or undesirable is not permitted. For example, indicating that a post-pregnancy body should be ‘fixed’ or changed through statements such as ‘mummy makeover’, ‘problem area’, ‘hip dips’ and ‘thigh gaps’.
Similarly, practitioners must not use phrases to correlate a person’s wellbeing with cosmetic surgery. Examples of these phrases include ‘healthier, happier you’, ‘restore’, and ‘body goals’.
9. Realistic expectations
The new reforms build upon the early guidelines to ensure cosmetic surgery is not advertised in a way that creates unrealistic expectations. As such, practitioners must not:
- Use terms such as ‘magic’ or ‘art’;
- Use phrases such as ‘bikini body’, or ‘get the look’; and/or
- Make claims about any psychological or social benefits provided by cosmetic surgery without evidence.
10. At-risk populations
Finally, the guidelines provide that practitioners must recognize the at-risk groups who are vulnerable to negative body-image pressures or perceptions. Advertising must not be targeted towards people under the age of 18 and must not leverage social media algorithms to boost posts towards vulnerable groups.
What’s next?
As the above guidelines were developed in answer to the 2022 Independent Review, they are concerned solely with the advertisement of cosmetic surgery. However, the guidelines do note that the advertising of both cosmetic surgery and procedures should not glamorize procedures, minimise the complexity of a procedure, overstate results or imply that patients can achieve unrealistic outcomes.
This requirement applies to the advertisement of cosmetic procedures, “until such time as more detailed consideration and consultation occurs”, signaling the development of similar guidelines for procedures in the future.
Until then, in the next instalment of this series, the Media and Regulatory law team at BlackBay Lawyers will explore the second set of guidelines released by AHPRA: Guidelines for medical practitioners who perform cosmetic surgery and procedures.
If you are concerned about the adverse impact that these new guidelines may have upon your practice or business, contact BlackBay Lawyers to ensure you stay compliant and minimise legal and financial risk.
