Medical Board of Australia - Cosmetic surgery advertising obligations under the National Law

Cosmetic surgery advertising obligations under the National Law

Information for medical practitioners and others advertising cosmetic surgery procedures 

The outcomes of the Independent review of the regulation of medical practitioners who perform cosmetic surgery (the independent review) will change how cosmetic surgery can be advertised.

This document outlines current advertising obligations in the context of cosmetic surgery. Additional guidelines will be released following consultation.

Cosmetic surgery advertising has unique features which increase public risk. Cosmetic surgery advertising breaches of the Health Practitioner Regulation National Law, as in force in each state and territory (the National Law), have now been categorised as high risk to the public and may be subject to regulatory action. Ahpra and the Medical Board of Australia (the Medical Board) will be releasing new cosmetic surgery guidelines for comment soon. 

To prepare for the changes, advertisers of cosmetic surgery may wish to consider the findings of the independent review

Current obligations

Section 133 of the National Law sets out the requirements of advertising regulated health services, including cosmetic surgery, and the Guidelines for advertising a regulated health service (advertising guidelines) provide more information in relation to this. 

Medical practitioners should also be aware of their obligations to patients under Good medical practice: a code of conduct for doctors in Australia and the Medical Board’s Guidelines for registered medical practitioners who perform cosmetic medical and surgical procedures

Independent review of the regulation of medical practitioners who perform cosmetic surgery

In November 2021, Ahpra and the Medical Board commissioned an external review of patient safety issues in the cosmetic surgery industry, including how to strengthen regulation of practitioners in the industry.

The final report from the independent review was published on 1 September 2022 and made 16 recommendations to improve patient safety in the cosmetic surgery sector including four about cosmetic surgery advertising. 

Ahpra and the Medical Board have accepted all the recommendations from the independent review. 

What is cosmetic surgery? 

Cosmetic surgery means operations that involve cutting beneath the skin to revise or change the appearance of normal bodily features where there is otherwise no clinical or functional need for the procedure. Examples of cosmetic surgery include breast implants, abdominoplasty, rhinoplasty, surgical face lifts and liposuction.

What is advertising?

The meaning of advertising is set out in the definitions section of the advertising guidelines.

Advertising includes all forms of verbal, printed and electronic communication that promotes and seeks to attract a person to a regulated health service provider and/or to attract a person to use the regulated health service. Social media is often used to advertise cosmetic surgery. 

A practitioner providing information about treatment or costs in a consultation requested by the patient, whether in person, by telephone or video or via other digital means, is not considered to be advertising a regulated health service.

Who is an advertiser?

Anyone (person, business or corporate entity) who advertises a regulated health service1, is considered an advertiser and must comply with the advertising requirements of the National Law. In the context of cosmetic surgery this includes anyone who advertises a cosmetic surgery practice or practitioner.

Any person or entity who controls part or all of the advertising (i.e. who authorises the content) is 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.

Advertisers are responsible for their advertising, so they need to check any content produced by others on their behalf. Advertisers should also be cautious not to link to any content that may be in breach of the National Law.

Advertisers can include:

  • registered health practitioners
  • individuals who are not registered health practitioners
  • businesses, partnerships and corporate entities. 

In the context of cosmetic surgery advertising, advertisers may include any individual who is paid or otherwise compensated or incentivised to promote a cosmetic surgery practice or practitioner. This includes social media influencers or ambassadors who receive payment, reduced fees or other compensation, from a practitioner or others.

Responsibilities of advertisers

The following explains how the advertising requirements of the National Law apply to cosmetic surgery advertising. 

To avoid being misleading advertising should be factual and accurate. Advertisers should consider the overall impression of their advertising, including who the audience is, what the advertisement is likely to say or mean to them, and how easy it is for the audience to understand the advertising.

Advertising may be false, misleading, or deceptive when it:

  • Includes statements or claims about benefits of the treatment which are not supported by acceptable evidence. For example, a claim that cosmetic surgery will ‘boost confidence.’ This includes claims made through the use of hashtags or similar. 
  • Uses inaccurate, trivialising, or misleading language to describe a surgical procedure, such as ‘gently melting fat.’
  • Uses language that overstates the reduction in risk due to a practitioner’s skill and experience, such as ‘has performed thousands of surgeries without complication.’
  • Claims that a surgical procedure is ‘safer’ or ‘more effective’ than another procedure where there is insufficient evidence to support the claim.
  • Minimises, underplays or under-represents the risk or potential risk associated with a treatment or procedure.
  • Uses edited videos of surgical procedures particularly where the editing creates the impression that the surgery is less complex or lower risk. 
  • Provides partial information and/or omits important details.

When advertising claims about qualifications, membership, experience or expertise, this information must be accurate and should not create an overall impression that a practitioner holds a type of specialist registration or endorsement when they do not or is more skilled or more experienced in cosmetic surgery than is the case. Where a practitioner does not hold specialist registration, the Medical Board considers that any advertising using words or titles related to specialty is likely to mislead the public to believe the practitioner holds a type of specialist registration approved under the National Law. Advertisers should be aware of the protected titles for the profession that they are advertising. 

Medical practitioners advertising cosmetic surgery procedures should also be aware of the requirements for advertising financing schemes in the Medical Board’s Guidelines for registered medical practitioners who perform cosmetic medical and surgical procedures and the Medical Board’s Information Sheet - Cosmetic medical and surgical procedures – guidance on financing schemes

Advertising that offers a gift, discount, or other inducement to attract someone to use the regulated health service or business must state the terms and conditions of the offer, gift or inducement, and these terms and conditions should be provided in plain language.

Advertisers should ensure that terms and conditions are easily found and accessible. 

Advertising may be in breach of the National Law when it:

  • Contains price information that is unclear, inexact, or vague.
  • Makes an offer or a ‘make one consultation appointment, get one free’ but raises the price of the first consultation to largely cover the cost of the second (free) appointment.
  • Excludes reference to any existing restrictions or limitations, such as age, expiry date, geographical or restrictions on who is eligible for the offer.
  • States an instalment amount without stating the total cost (which is the condition of the offer).

Ahpra and the Medical Board now consider any unlawful use of testimonials to advertise cosmetic surgery to be high risk to the public. Testimonials for cosmetic surgery also raise unreasonable expectations of beneficial outcome. The outcome of one individual patient’s cosmetic surgery does not necessarily represent the outcome for all patients, as results are dependent on each patient’s individual physical features, diet, lifestyle and other factors.

Stories from patients are testimonials if they are used to advertise a cosmetic surgery practice or practitioner. For example, if they are shared on a practitioner or clinic’s website or social media pages, or if a practitioner or clinic shares, republishes or promotes the story it is likely to be considered using a testimonial to advertise a regulated health service, which is prohibited.

In particular for advertisers of cosmetic surgery this means:

  • Engaging or interacting with ‘influencers’ or individuals with a large social media following to promote clinics offering cosmetic surgery procedures on social media increases the risk a practitioner will be assessed as using a testimonial in advertising.
  • Recommendations or reviews on third party review sites become unlawful testimonials if the practitioner engages with the review in any way, by commenting, liking, or sharing. 
  • Linking to a patient’s online content about their cosmetic surgery is likely to be assessed as using a testimonial in advertising.

Advertisers are not responsible for removing or trying to remove testimonials published on platforms they do not control or on sites that are not advertising a regulated health service.

However, advertisers should take care if they choose to engage with reviews on a third-party site, such as a patient’s social media, as this may be considered using a testimonial to advertise a regulated health service.

The independent review emphasised the risks when cosmetic surgery advertising creates unreasonable expectations of beneficial treatments by promoting outcomes that may not be attainable for many people. 

Advertisers of cosmetic procedures should review their advertising and ensure the advertising displays a range of normal outcomes and does not create unreasonable expectations of outcome.

Advertising that may increase unreasonable expectations of beneficial treatment includes: 

  • The use of single images of bodies, rather than before and after images to advertise cosmetic surgery. This includes stock images, and photos of patients, models, or celebrities. This is because in the case of images of patients, the use of single images does not allow for comparison to fairly show how cosmetic surgery has resulted in changes to the body shape. In the case of images of people who are not patients, including stock images, models, and celebrities, it is misleading as the person has not received any service from the practitioner. Any use of a single image of a person, or any part of a person, is misleading and may create an unreasonable expectation of beneficial treatment by promoting or presenting outcomes that may not be attainable for many people.
  • Advertising without information about the risk of the procedure or which downplays or minimises the risk of the procedure or which provides incomplete or biased information about the risk of the procedure.
  • Advertising with an absence of information about recovery time from the procedure or which downplays, minimises, or provides incomplete or biased information about the recovery time from the procedure may create an unreasonable expectation of recovery time. 
  • Advertising that does not provide accurate and honest information about the experience of recovery, such as information about the need for compression garments, massage and similar, may also create an unreasonable expectation of recovery.
  • Patient stories and journeys or anecdotes from the advertiser about the personal benefits or outcome obtained from treatment may create an unreasonable expectation of beneficial treatment as the outcomes experienced by one person do not necessarily reflect the outcomes other people may experience.
  • Advertising that contains a claim or statement or implication that is likely to create an unreasonable expectation of beneficial treatment by: 
    • either expressly or by omission indicating that a treatment is infallible, unfailing, miraculous, etc
    • stating that the practitioner has an exclusive or unique skill that will benefit the patient and/or
    • using photos or images of unrealistic outcomes.
  • The use of ‘after’ photographs in ‘before and after’ images without stating exactly how long after the surgery each ‘after’ image was taken.
  • The use of ‘after’ photos that disguise surgical scars, that use filters or other editing, and/or ‘after’ photos that are posed, lit, cropped, or otherwise manipulated to provide greater contrast with the ‘before’ photographs.

Special care should be taken when using ‘before and after’ images in advertising a regulated health service as they have the potential to be highly misleading. These images may also cause a member of the public to have unreasonable expectations of a successful outcome. Use of ‘before and after’ images are less likely to be misleading if: 

  • the images are as similar as possible in content, camera angle, background, framing and exposure 
  • the posture, clothing and make-up is consistent
  • the lighting and contrast are consistent 
  • images are not altered in any way. 

Advertisers should ensure advertising contains easily visible or accessible information for patients that outcomes will vary by individual and genetics, diet, exercise, and other factors will affect outcomes for individuals.

Any health intervention involves inherent risks, so encouraging the use of a regulated health service which is not based on clinical need or therapeutic benefit is not in the public interest. 

The independent review noted that there are many potential risks to the public in the advertising of cosmetic surgery due to the nature of cosmetic surgery as an elective procedure where no clinical or functional need exists.

Advertisers should review their advertising and ensure any advertising of cosmetic surgery does not:

  • Imply that a person’s well-being will suffer if they do not have cosmetic surgery.
  • State or imply that there are benefits or outcomes of cosmetic surgery where these benefits or outcomes cannot be proven by acceptable evidence
  • Advertise cosmetic surgery in a manner that minimises or trivialises the risk of cosmetic surgery.
  • Encourage a person to attend for an appointment where the individual has not specifically sought out the service. For example, providing cosmetic surgery as part of a competition prize.
 

  1.   A regulated health service is a service provided by, or usually provided by a registered health practitioner.
 
 
 
Page reviewed 26/10/2022