Cosmetic cowboys forcing advertising action ‘across the pond'

Gary Smotrich, MD, PSN Associate Editor
07/12/2012 at 10:30AM

Could plastic surgery advertising soon be joining Joe Camel in marketing mascot heaven? If the British Association of Aesthetic Plastic Surgeons (BAAPS) has anything to say about it, that will be the case.

A few months back, BAAPS urged the United Kingdom lawmakers to ban cosmetic surgery advertising - a move that coincided with a government inquiry into the essentially unregulated aesthetic surgery market. In addition, the European Union (EU) has become involved in developing EU-wide standards, with interest on the continent certainly heightened by the PIP breast implant scandal.

BAAPS has put forth a six-point plan to better regulate cosmetic surgery, highlighted by a ban on all cosmetic surgery advertising - not unlike the existing ban on pharmaceutical advertising in the United Kingdom. Other aspects of the plan include things already in place in the United States, including an implant registry and classification of dermal fillers as medicines.

Long-distance information

BAAPS President Fazel Fatah, MD, could have been discussing the situation on this side of the pond when he told the British press about out-of-control cosmetic surgery marketing in the United Kingdom. I thought I'd seen just about everything in this country, but "divorce feel-good" surgery packages sounded so intriguing that I had to give Dr. Fatah a call. (I left the question of "Which came first - the mommy makeover in the United States or the mummy makeover in the United Kingdom? - for another day.)

Dr. Fatah is a consultant plastic surgeon in Birmingham. He told me that the proposed ban on cosmetic surgery advertising has been under consideration for about six years, and he agreed that the PIP implant problem has brought the issue front and center. Similar to what we've seen in the United States, "cowboy" clinics have been sprouting up in the United Kingdom, with patients recruited and pressured to have surgery. He described much of the advertising as preying on the most vulnerable: divorcees, widows and new moms.

Dr. Fatah traced much of the problem to physicians starting out with cosmetic medical procedures and then branching into surgery. He added that industry has had a significant role in aiding this practice expansion, and I was clearly nodding in agreement. His goal is to establish firm boundaries between cosmetic medicine and cosmetic surgery. As ASPS and many state societies have framed the issue, so is BAAPS stressing that this is all about patient safety as opposed to a turf battle. The British government has gotten the message that advertising may compromise patient safety, and it has begun a one-year review of the problem.

When Joe Camel roamed the earth

Would such a ban be even a remote consideration in the United States? Back to Joe Camel for a moment. Advertising's iconic dromedary was run out of town in 1997 after a 10-year existence, during which time kids became just as familiar with the Joe Camel logo as they were with Mickey Mouse. In 1991, the AMA asked RJR Nabisco to pull the advertising campaign, and RJR refused. It was only after a lawsuit revealed that revenue from the sale of Camel cigarettes to teenagers ballooned from $6 million in 1988 to $476 million in 1992 that RJR agreed to end its Joe Camel campaign.

Joe Camel died under his own weight, but the broader issue involves the extent to which the government can regulate commercial and corporate speech. Such regulation had its origins in the early 20th century in the wake of scandals surrounding advertising of "patent" medicines and fraudulent claims about everything from narcotics to breakfast cereal. Threats to public health in the realm of both food and medicine led to the creation of the FDA in 1906 and the Federal Trade Commission in 1914.

At the time, commercial speech did not have First Amendment protection, and this was affirmed by the Supreme Court, which reasoned that the broad powers of government to regulate commerce must reasonably include the power to regulate speech concerning articles of commerce.

Landmark ruling opens floodgates

This view changed in the 1970s. In a landmark 1976 ruling - Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council - the Supreme Court declared advertising to be a semi-privileged form of free expression, subject to some regulation. In the Virginia case, the Supreme Court struck down a ban that prohibited pharmacists from advertising drug prices. The ruling removed bans that had applied to other professionals such as physicians and lawyers, and the proverbial floodgates were opened.

In the 1980 Central Hudson Gas & Electric Corp. v. Public Service Commission case, the Supreme Court spelled out a four-part test to determine whether a restriction on commercial speech was valid and didn't violate the First Amendment: Does the ad involve a lawful activity; is there a substantial government interest; does the regulation advance this interest; and is the regulation the least-restrictive means to serve the interest? Sounds like cosmetic surgery advertising might pass this test.

The potential harm to patients from misleading cosmetic surgery advertising has not yet approached the public health threat that clearly existed with tobacco advertising decades ago. That said, we would do well to closely follow developments in the United Kingdom. The cosmetic cowboys are out in full force on both sides of the Atlantic.