Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.Ad description
An Instagram post for beautician Faces by AKJ Aesthetics, seen on 16 January 2019. The ad included a photo of Kylie Jenner with text that stated "WIN THE KYLIE PACKAGE. 2ML CONTOURED CHEEKS + 2ML JAWLINE SCULPTING + 1ML HIGH DEFINITION LIPS". Text beside the image stated "COMPETITION TIME** Like this post, tag 2 of your friends below, screenshot and repost with #facescomp. We'll pick the winner at random in 2 weeks, treatment at our Hazel Grove clinic. Go!!!".
Issue
The ASA challenged whether the ad:
1. irresponsibly offered a cosmetic procedure as a competition prize;
2. breached the Code because it advertised Botox, a prescription only medicine; and,
3. misleadingly suggested the package would give them lips, cheeks and a jawline that closely resembled those of Kylie Jenner.
Response
1. Faces by AKJ Aesthetics Ltd said that they would not run any competitions like the one featured in the ad again. They said that they would include text in their ads that stated “results may vary between clients” and “a number of treatments may be required to reach your desired look”.
2. Faces by AKJ Aesthetics said that they did not realise that hashtags entered below a post were considered part of the ad itself and that they planned to remove all hashtags that contained the word Botox.
3. Faces by AKJ Aesthetics said that Kylie Jenner’s picture was used because she was recognisable to their target audience and showed the areas that could be treated rather than to imply that their treatment could make consumers look like her.
Assessment
1. Upheld
The ASA noted that the ad promoted a non-invasive cosmetic procedure as a competition prize through use of “hashtags” and “likes” on Instagram. The ad also used the statements “COMPETITION TIME” and “Go!” which we considered encouraged consumers to take part in the competition. We also noted that the ad was accessible to anyone visiting the website and so might have been viewed up until the offer deadline by consumers who were previously unaware of the competition, and they would therefore not have had a reasonable amount of time to consider the decision to take part.
We considered the presentation of those elements in the context of a competition were likely to give the impression that the decision to undergo cosmetic procedures such as jawline sculpting, cheek contouring or lip fillers surgery was a decision that could be undertaken lightly, without serious consideration of the nature of the intervention. On that basis we considered, therefore, that the ad irresponsibly offered a cosmetic procedure as a competition and concluded that it breached the Code.
The ad breached CAP Code (Edition 12) rule 1.3 (Responsible advertising).
2. Upheld
The ASA understood the advertising of prescription-only medicines (POMs) to the general public was prohibited by the Human Medicines Regulations 2012 (HMRs) and that was reflected in CAP Code rule 12.12. However, we further understood that certain types of content that could be characterised as reference material or announcements of a factual and informative nature were not covered under the scope of HMR’s definition of advertising and, as a result, could not be considered advertising for the purposes of rule 12.12. We therefore assessed the claims within the sales promotions to establish whether they were of that nature and if they could be considered as advertising for the purposes of rule 12.12.
We understood Botox was a trading name for a form of a specific botulinum toxin type A product and that it was a POM. We noted that the post included the hashtag #botox within the ad’s text next to the main image. While there were no other claims about Botox within the post we considered the “#botox” reference went beyond the provision of factual information and instead served to promote Botox making it appear more appealing to consumers. We therefore considered that the ad constituted the advertising of Botox as defined by the HMRs and reflected in the CAP Code.
While we welcomed the prompt action the advertiser took to remove the reference, we concluded the ads breached the Code. On that point, the ad breached CAP Code (Edition 12) rule 12.12 (Medicines).
3. Upheld
We noted that the ad included a photo of Kylie Jenner with directional arrows pointing to her lips, cheek and jawline, labelled with corresponding cosmetic procedures. We noted the ad also stated “WIN THE KYLIE PACKAGE”. We considered that consumers would therefore understand from the ad that they could achieve similar results to those of Kylie Jenner and that the photos accurately represented what could generally be achieved through use of the advertised cosmetic procedures.
We understood that Faces by AKJ Aesthetics wanted to present their products in the best light and use imagery that might represent what their products could achieve. However, we considered the ad should not misleadingly exaggerate the effect those products could achieve. Therefore we expected to see that the person in the ad, Kylie Jenner, had used those products and the ad was a realistic depiction of what the products could achieve. We had not seen evidence that the products’ effects on Kylie Jenner, as featured in the ad, could be achieved through use of the product only. Because Faces by AKJ Aesthetics had not provided sufficient evidence that substantiated the ad’s claims we therefore concluded that the ad was misleading.
The ad breached CAP Code (Edition) 12 rules 3.1 and 3.3 (Misleading advertising) and 3.7 (Substantiation).
Action
The ad must not appear again in its current form. We told Faces by AKJ Aesthetics Ltd not to trivialise non-cosmetic procedures. We also told them not to advertise Botox again and not to suggest celebrities had used their products if they hadn’t.
