Background
Summary of Council decision:
Two issues were investigated, of which one was Upheld and one Not upheld.
Ad description
A YouTube video, a TikTok video and four Instagram Stories for Doctor Burgos de la Obra SLP:
a. The YouTube video originally titled “lipedema and me ep.1” was posted on the Gabriella Lindley YouTube channel on 5 February 2023. It featured Gabriella Lindley talking about her decision to undergo WAL Liposuction and stated, “I will be under the Lipemedical team. Full full full transparency here ? I went into this process absolutely knowing I was going to pay for every surgery, however after meeting Dr Burgos he very kindly offered for us two to work together to spread awareness about lipedema […]”.
b. A TikTok video posted on 3 March 2023 included clips of Gabriella Lindley’s legs from before and after the surgery. The voice-over stated, “I’m Gabriella and I have a disease called lipedema. Lipedema is where fat cells build up on your legs and arms and no amount of diet or exercise helps to shift them […] I decided to undergo surgery with Dr Burgos from the Lipemedical team in Madrid [...]” The caption stated “I have a disease called lipedema #lipedema #surgerytitktok #liposuctionsurgery #beforeandafter”.
c. An Instagram Story posted on Gabriella Lindley’s account on 18 February 2023, featured Gabriella Lindley plus text that stated, “If you’ve watched my recent video, you’ll know that I flew to spain [sic] to have my first lipedema surgery with @drburgosdelaobra_lipedema”, and a link that directed to ad (a).
d. An Instagram Story posted on Gabriella Lindley’s account on 18 February 2023, included the view from an aircraft and featured the text “[…] this is going to be a three part process starting with my calves and i [sic] thought i’d [sic] take you along for the ride [woman bowing emoji] if you want to find out more about lipedema, @drburgosdelaobra_lipedema is the place to go [flexed biceps emoji]”.
e. An Instagram Story seen on Gabriella Lindley’s account on 28 February 2023, featured Gabriella Lindley and text that stated, “[…] the next day, it was time to head to see @drburgosdelaobra_lipedema for my first surgery [see-no-evil monkey emoji] i [sic] was super nervous but also incredibly excited to get rid of the heaviness, bruising and pain that i’d [sic] been dealing with for years”. The text “AD partnership” appeared in small white font in the top right-hand corner of the screen.
f. An Instagram Story seen on Gabriella Lindley’s account on 28 February 2023, featured before and after photos of the lower thighs and calves of two legs. Text stated, “[…] the difference is just incredible! i’m [sic] so glad i [sic] finally took the plunge to have this surgery [weary face emoji] [white heart emoji] thank you @drburgosdelaobra_lipedema for changing my life”. The text “AD partnership” appeared in small white font in the top right-hand corner of the screen, partly covered by the Instagram story tabs.
Issue
1. Twelve complainants challenged whether ads (a)-(f) were obviously identifiable as marketing communications.
2. Five complainants challenged whether ads (a)-(f) were directed at those below 18 years of age through the selection of media or context in which they appeared.
Response
1. & 2. Doctor Burgos de la Obra SLP t/a Lipemedical did not respond to the ASA’s enquiries.
Gabriella Lindley said that her audience was above the age of 18. She provided her audience demographics for Instagram, TikTok and YouTube. The Instagram follower and YouTube audience demographics showed that only a very small percentage of the audience (below 25%), was under 18 years of age. The TikTok demographics did not include data for followers who were under 18.
She further stated that she was not paid by Lipemedical but had received the surgery for free in exchange for creating content to raise awareness of the process, the clinic and the condition. She did not believe that the posts were ads, although she acknowledged that some were disclosed as “ad partnership”. In addition, she highlighted that in ad (a) she had said “full transparency”, which she considered indicated that there was no malicious intent in not disclosing that it was an ad within the description. However, she stated that she would add further declarations to ad (a), as well as any further content she created on her treatment process going forward.
Assessment
The ASA was concerned by Lipemedical’s lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to respond promptly to our enquiries and told them to do so in future.
1. Upheld
The CAP Code stated that marketing communications must be obviously identifiable as such, and they must make clear their commercial intent if that was not obvious from the context.
The ASA first assessed whether the YouTube and TikTok videos and Instagram stories were ads. We understood that Ms Lindley had received the WAL liposuction surgery for free, which we considered to be a payment or other reciprocal arrangement for the purposes of the Code. We further understood that in exchange for the free surgery, it was agreed that Ms Lindley would create content to raise awareness about the process of undergoing WAL Liposuction, the condition of lipoedema and the Lipemedical. We considered that to be evidence that Lipemedical had editorial control of the posts. We therefore concluded that ads (a)–(f) were marketing communications.
We then assessed whether the ads were obviously identifiable as such. Ad (a), a YouTube video, was originally titled “lipedema and me ep.1”. We considered that consumers would interpret the video to be an account of Ms Lindley’s experience with lipoedema. While we acknowledged that during the video, Ms Lindley stated, “Full full full transparency here - I went into this process absolutely knowing I was going to pay for every surgery, however after meeting Dr Burgos he very kindly offered for us two to work together to spread awareness about lipedema […]”, there was no indication in the title, thumbnail or caption that the video was an ad for Lipemedical, such as the label “Ad”. Because the ad did not make clear upfront its commercial intent, we concluded it was not obviously identifiable as a marketing communication, and therefore breached the Code.
Ad (b) was a TikTok video with the caption “I have a disease called lipedema #lipedema #surgerytitktok #liposuctionsurgery #beforeandafter”. In the video, Ms Lindley talked about her diagnosis and decision to undergo surgery with Dr Burgos at Lipemedical. The caption of the video stated “I have a disease called lipedema #lipedema #surgerytitktok #liposuctionsurgery #beforeandafter”. We considered that consumers would interpret the video to be an account of Ms Lindley’s experience with lipoedema and decision to undergo surgery. We noted that the TikTok video did not include any identifiers in the video or caption to label the video as an ad. We therefore considered that the ad was not obviously identifiable as a marketing communication and had not made its commercial intent clear.
Ads (c) and (d) were Instagram stories posted on Ms Lindley’s account. Ad (c) stated “[…] I flew to spain to have my first lipedema surgery with @drburgosdelaobra_lipedema”, and included a link that directed to ad (a). Ad (d) stated “[…] this is going to be a three part process starting with my calves and i [sic] thought i’d [sic] take you along for the ride […] if you want to find out more about lipedema, @drburgosdelaobra_lipedema is the place to go”. We considered that the stories would be understood by consumers to be an account of Ms Lindley’s process of treating her lipoedema. While we acknowledged that both stories tagged the Lipemedical Instagram handle @drburgosdelaobra_lipedema, we considered that this was not sufficient to make clear to consumers that the stories were ads. We therefore considered that the stories were not obviously identifiable as marketing communications.
Ads (e) and (f) were additional Instagram stories posted on Ms Lindley’s account. We acknowledged that both stories included the text “AD partnership” in small white font in the top right-hand corner of the screen. We considered that the label “AD partnership” was positioned away from the focal point of each ad and due to its size and font colour, users were likely to overlook it. Additionally, the label in ad (f) was partly obscured by Instagram’s story tabs. We therefore concluded that the labels in ads (e) and (f) were insufficiently prominent to obviously identify the ads as marketing communications.
Ads (a), (b), (c), (d), (e) and (f) breached CAP Code (Edition 12) rules 2.1 and 2.4 (Recognition of marketing communications).
2. Not upheld
The CAP Code stated that marketing communications for cosmetic interventions must not be directed at those below 18 years of age through the selection of media or context in which they appear. “Cosmetic interventions” meant any intervention, procedure or treatment carried out with the primary objective of changing an aspect of a consumer’s physical appearance.
We first examined whether the WAL Liposuction procedure was a cosmetic intervention for the purposes of the CAP Code. We sought views from the British Association of Aesthetic Plastic Surgeons (BAAPS) and the British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS) as to whether WAL Liposuction for lipoedema was carried out with the primary objective of changing a consumer’s physical appearance.
BAAPS stated that WAL Liposuction was not a purely cosmetic procedure because lipoedema also had physical symptoms. While there may be a cosmetic aspect to the procedure, for many patients it was primarily a medical procedure. The exact ratio of cosmetic to medical would vary from patient to patient. BAPRAS said that WAL Liposuction was predominantly reconstructive, although there was an aesthetic element. They also confirmed that this would be dependent on how each case presented.
In the context of that advice, we considered that WAL Liposuction for lipoedema could be a cosmetic intervention for the purposes of the Code in some instances. However, this would depend on whether it was presented in an ad as having the primary objective of changing the physical appearance of lipoedema or treating the medical symptoms of the condition.
We noted that Ms Lindley’s overall presentation of the operation in the ads was focused on the medical impact of her symptoms, with very little reference to the cosmetic symptoms of lipoedema or the cosmetic implications of the surgery. For example, in ad (a) she stated “[…] when you’re dealing with lipoedema, it’s not just the vanity […] I’ve shown you before my legs bruise so easily, I also get a lot of pain in them, I feel like my knees are under a lot more stress because there is so much more weight on my legs”. In ad (e) she further said, “[…] incredibly excited to get rid of the heaviness, bruising and pain that i’d been dealing with for years.” She also referred to lipoedema as a disease in ads (a) and (b). Therefore, we considered that on balance, the WAL Liposuction featured in ads (a) to (f) was not presented as a cosmetic intervention for the purposes of the Code, because it was not presented as being carried out with the primary objective of changing an aspect of a consumer’s physical appearance. Therefore, the Code did not require that the ads must not be directed at those below 18 years of age.
We concluded that the ads were not promoting a cosmetic intervention with the primary objective of changing an aspect of a consumer’s physical appearance, and thus fell outside the scope of Code rule 12.25.
We investigated ads (a), (b), (c), (d), (e) and (f) under CAP Code (Edition 12) rule 12.25 (Cosmetic interventions), but did not find them in breach.
Action
The ads must not appear again in their current form. We told Dr Burgos de la Obra t/a Lipemedical and Gabriella Lindley to ensure that their future ads were obviously identifiable as marketing communications and the commercial intent was made clear, and that identifiers such as “#ad” were clearly and prominently displayed. We referred Lipemedical to CAP’s compliance team.
