Advertising regulators such as the Advertising Standards Authority (ASA), the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP) continue to highlight the importance of responsible advertising in relation to cosmetic procedures. Beauty and cosmetic brands should therefore remain alive to the rules governing advertising, particularly where the services they are offering include surgical and non-surgical cosmetic interventions.
For example, the CAP and BCAP are paying increased attention to body image concerns in advertising. We previously reported that the committees had announced a call for evidence, with the aim of assisting in a review of whether current advertising rules adequately deal with these issues. The call for evidence closed in January 2022 and the CAP and BCAP have published an interim statement.
The interim statement briefly summarises the responses received, concluding that the evidence provided does not identify significant gaps in the current rules. However, the responses did highlight specific concerns over the digital alteration of images and the committees have said that one of the main priorities for their 2023 agenda will be a closer review of whether images that have been digitally altered should be clearly labelled. It is therefore possible that further restrictions on adverts in the beauty space will be brought into force.
While no changes to existing advertising rules appear to be imminent as a result of the call for evidence, the CAP and BCAP have reiterated their commitment to keeping a close eye on the role advertising can play in perpetuating body image concerns.
Meanwhile, the ASA recently released guidance and a series of bitesize training videos on the application of the existing rules to cosmetic interventions, highlighting some of the major issues of which advertisers should be particularly mindful:
The rules regarding the placement of advertisements for cosmetic interventions changed earlier this year. From 25 May 2022, such adverts cannot target under 18s (CAP Code rule 12.25 and BCAP Code rule 32.2.9) through the selection of media or context in which they appear. Treatments caught by the new rule include surgical interventions such as rhinoplasty and breast augmentation/reduction, as well as non-surgical interventions, such as micro-needling, dermal fillers, laser treatments, teeth whitening and chemical peels.
For broadcast advertising, adverts cannot be placed in or adjacent to programmes directed at (or likely to appeal to) an audience under the age of 18. For non-broadcast advertising (including social media, influencer marketing or email newsletters), adverts must not be placed in media where 25% or more of the audience is under 18.
Brands offering such interventions must therefore think carefully about where adverts should be placed – for example, when engaging with influencers, brands should take care to consider the makeup of their following and whether 25% or more of their audience is under 18.
The guidance highlights the importance of social responsibility in advertising – particularly in the beauty sector. CAP Code rule 1.3 and BCAP Code rule 1.2 state that ads "must be prepared with a sense of responsibility to consumers and to society".
The ASA's view is that responsible adverts should not exploit people's insecurities or trivialise the treatments being advertised, and that ads should present a balanced view where there are risks associated with a particular treatment. In addition, the ASA highlights in its new guidance that it will scrutinise promotions carefully. For example, the ASA may consider whether a short response time for a promotion puts pressure on consumers or whether it is socially responsible to give certain cosmetic interventions away as prizes.
Furthermore, the ASA stresses that separate rules apply to prescription-only medications (such as Botox) – prescription-only medicines must not be promoted to the public.
Efficacy claims: Use of "before and after" images and endorsements
Marketers should be careful when using before and after images to demonstrate the efficacy of their services, as these can fall foul of the CAP Code and BCAP Code rules on misleading adverts – particularly if photos are digitally altered in post-production. Brands are encouraged to keep a detailed record of what production techniques have been applied, to demonstrate that their before and after images are not misleading to consumers.
Notably these rules can extend to the use of filters on social media posts. In 2021, the ASA ruled in two separate cases (the first against Skinny Tan and the second against We Are Luxe) that Instagram stories posted by influencers to advertise tanning products breached the CAP Code, as the influencers who posted the original images used beauty filters to darken the appearance of their skin tone and thereby exaggerate the effects of the tanning products.
This is also an important reminder that businesses working with influencers are considered responsible for adverts posted on those influencers' platforms. It may therefore be advisable to include specific provisions on the use of beauty filters in any relevant commercial agreements entered into with influencers.