Advertising overhaul for cosmetic surgery - what you need to know
The Medical Board of Australia under section 39 of the Health Practitioner Regulation National Law (the National Law) has developed specific guidelines for registered medical practitioners who advertise cosmetic surgery.
The reforms have been developed to address specific risks and concerns arising from cosmetic surgery advertising and impose higher standards and tougher advertising rules. The new guidelines are in addition to existing guidelines in force for advertising a regulated health service under the National Law as well as existing therapeutic goods advertising and laws governing Australian Consumer Law.
In this Insights we provide an overview of the new cosmetic surgery advertising guidelines and the higher penalties that will be in force from 1 July 2023.
What is cosmetic surgery?
Cosmetic surgery is defined as operations that involve cutting beneath the skin and which revise or change the appearance, colour, texture, structure, or position of normal bodily features with the dominant purpose of achieving what the patient perceives to be a more desirable appearance.
Examples include breast augmentation, abdominoplasty, rhinoplasty, blepharoplasty, surgical face lifts, cosmetic genital surgery and liposuction and fat transfer.
Gender affirmation surgery is not considered cosmetic surgery.
The cosmetic surgery advertising guidelines do not apply to non-surgical cosmetic procedures that include cosmetic injectables, thread lifts and laser treatments.
What is advertising?
Advertising includes, but is not limited to:
all forms of verbal, printed and electronic communication; and
content on public and private social media profiles or groups including comments by the practitioner or other content from the practitioner.
Advertising captured by the cosmetic surgery advertising guidelines also includes:
television or cinema
radio
newspapers
flyers
billboards
books (if the book is promoting a particular cosmetic surgery provider)
pictorial representations
designs
mobile communications or other displays
all electronic media that promotes a particular cosmetic surgery provider
business cards, announcement cards
office signs and similar
letterheads on public facing documents used to promote a particular cosmetic surgery provider
public and professional directory listings or similar professional notice (such as patient recall notices)
internet, including websites and social media; and
time restricted advertising, e.g., ‘stories’ of social medial platforms.
Who is an advertiser?
Anyone (person, business or corporate entity) who advertises cosmetic surgery is considered an advertiser. In the context of cosmetic surgery this includes anyone who advertises a cosmetic surgery practice or practitioner.
Advertisers can include:
registered health practitioners
individuals who are not registered health practitioners
businesses, partnerships and corporate entities.
Any person or entity who controls part or all of the advertising (i.e. who authorises the content) is also an advertiser.
An advertiser has control of the advertising if:
they publish or authorise content or direct someone to publish or draft content (including a third party, staff member, or marketing agency), or
there is a mechanism for the advertiser to modify or remove content published by an unrelated publisher.
What do the guidelines include?
Under the existing guidelines, advertising must not:
be false, misleading or deceptive;
create unreasonable expectation of beneficial treatment; or
encourage indiscriminate use.
Effective from 1 July 2023, advertising cosmetic surgery will also be required to comply with the following additional rules (without limitation):
consent:
medical practitioners must obtain fully informed consent from patients to use the patient’s image in any advertising. This consent must be separate to the consent to surgery.
risk and recovery:
full information about risks, potential risks and recovery must be easily found within cosmetic surgery advertising.
testimonials:
testimonials are not permitted in any advertising of cosmetic surgery.
a testimonial is a positive statement about a person or thing.
testimonials are also recommendations about the clinical aspect of a regulated health service.
testimonials are also considered to have been used in advertising where a medical practitioner:
links to testimonials on third party advertising;
re-shares stories or posts from patients that are recommendations or positive statements about the cosmetic surgery and/or the medical practitioner who provided the cosmetic surgery; and
interacts with the review, such as liking or otherwise responding to a patient’s social media post.
social media and influencers:
social media and social media influencers must comply with the guidelines.
social media influencers need to include information about risks and potential risks of cosmetic surgery, which may include links to the location of the information about the full risks and potential risks.
social media influencers must not accept free or discounted surgery for promotion of cosmetic surgery.
use of images:
single images must not be used in cosmetic surgery advertising when the use of the image is likely to give the impression that it represents the outcome of a surgery.
‘Before and after’ images must:
be used responsibly to provide only realistic information about the outcome of the cosmetic surgery performed;
be of actual patients who have had cosmetic surgery performed by the medical practitioner advertising; and
not present the ‘after’ image as the most prominent image as this may create unrealistic expectations.
images must not be idealised or sexualised.
images of people aged under 18 years of age must not be used in advertising of cosmetic surgery.
gifts, discounts, incentives or inducements
advertising of cosmetic surgery must not use incentives or inducements that would encourage people to have cosmetic surgery.
examples of inappropriate incentives or inducements include, but are not limited to:
giving a discount if a patient undergoes cosmetic surgery before a certain date;
offering benefits such as discounted airfares, accommodation or spa treatments as part of a cosmetic surgery package;
offering discounted packages or ‘bundling’ of multiple procedures (for example, ‘facelift and fillers’); or
offering a gift or prize for promoting a particular medical practitioner or practice.
targeting:
advertising must not be targeted or directed at people under the age of 18
advertising must limit the exposure of people under the age of 18 by not advertising in publications or other media likely to appeal to, or have a significant audience of, people under the age of 18.
advertising must not exploit or be targeted towards at risk groups.
hashtags:
advertising must not use colloquial terms or non-clinical terms without also using the medical term for the surgery as this detracts from the seriousness of the surgery (including via a hashtag) for example, ‘boob job’, ‘tummy tuck’, ‘Brazilian butt lift.
registration:
ads must include clear and unambiguous information about medical practitioners’ qualifications and type of medical registration.
ads must include the medical practitioner’s registration number and whether they hold general registration or specialist registration, including recognised specialty and field of specialty practice (if applicable).
Dealing with non-compliance
The Board and AHPRA can deal with inappropriate advertising in a number of ways, including through:
prosecuting those who breach the advertising provisions in the National Law; and/or
board disciplinary processes, where the Board believes a practitioner’s conduct has been unsatisfactory. Such processes can result in the following penalties, without limit:
a caution or reprimand;
conditions imposed on the practitioner’s registration;
an order for the practitioner to complete an educational course;
a fine; or
suspension or cancellation of the practitioner’s registration.
Due to the significant legal, professional, financial and reputational risks that can follow from prosecutions or disciplinary processes, it is imperative that practitioners familiarise themselves and comply with the new guidelines.
Takeaways
With the guidelines coming into effect on 1 July 2023, now is the time for medical practitioners advertising cosmetic surgery to carefully review all their advertising campaigns, websites, social medial and past posts to ensure compliance with the new cosmetic surgery advertising guidelines. If you need advice about whether your cosmetic surgery advertising complies with the National Law, please feel free to contact BlackBay Lawyers on 02 9100 0889 on via www.blackbaylawyers.com.au.
