The Joint Council for Cosmetic Practitioners (JCCP) has campaigned for a significant period of time to ensure that members of the public are not confronted with misleading, false, or exaggerated claims from practitioners who seek to advertise their services in an unsafe or illegal manner.
The JCCP works closely with the Advertising Standards Authority (ASA) to tackle misleading, harmful and illegal advertising in Aesthetics in the UK on all social media platforms, with a view to public protection and patient safety (ASA, 2023a).
During the summer of 2022, the JCCP highlighted a significant number of cases of illegal advertisements that helped to bring about new rulings for the Aesthetics Sector in the UK, for procedures such as Biotin Injections, B12 injections and Kenalog Injections (ASA, 2023b).
A number of practitioners choose to promote the use of prescription-only medicines (POMs) through advertising and social media channels, although all prescription-only medicines are regulated in law by the Medicines Regulation Act 2012 and cannot be subject to such promotions or advertisements (JCCP, 2020).
The rules and restrictions referred to within this Act of Parliament advise that all prescription-only medicines (POMs) should not be marketed directly to members of the public and certainly not part of any promotional special offers, such a ‘Black Friday Deal’ (ASA Rule 12.12; ASA, 2020).
In 2022, the ASA/Committee of Advertising Practice (CAP) released five bite-sized videos to remind and guide practitioners when advertising aesthetic procedures to ensure their advertising is decent, legal, honest and truthful (ASA, 2016).
The JCCP has also witnessed the publication of a Joint Enforcement Notice from the ASA and the Medicines and Healthcare Products Regulatory Agency (MHRA), in which practitioners and pharmaceutical suppliers were reminded that advertising botulinum toxin directly to the public represented a breach of legal standards.
Whilst these breaches of responsibility have been widely publicised, little has been published or communicated to the industry about the inadvisability and illegality of promoting aesthetic services to members of the public that are accompanied by ‘financial inducement’, or as part of a ‘gaming’ or ‘gambling’ incentive scheme.
Towards the end of 2022, the JCCP became aware of an increased number of social media advertisements that include the use of ‘Bonus Ball’, ‘Lottery’, and ‘Raffle’ offers for a wide range of non-surgical aesthetic procedures. Botulinum toxin injections, B12 injections, along with other treatments and product combinations were being offered as prizes.
As a result of internal investigations into the use of such illicit advertising promotion schemes the JCCP made contact with the Gambling Commission to bring the prolific use of such competitions to their attention. The JCCP's concerns were also supported by the Advertising Standards Commission and the Chartered Institute of Environmental Health (CIEH), with whom the JCCP has established robust working partnerships/memoranda of understanding.
The Gambling Commission responded very promptly saying ‘we would advise that many of the raffles/lotteries that are promoted on social networking sites are unlawful. We work closely with these sites and the payment processors to close these down when brought to our attention. As well as committing a criminal offence, the promoters of such raffles may be breaching the terms and conditions of the site on which they are advertising, so they could also have their online profile removed’. The Gambling Commission undertook to investigate the complaints within these advertisements and requested that further complaints and examples of similar advertisements should be reported to them.
» A number of practitioners choose to promote the use of prescription-only medicines (POMs) through advertising and social media channels, although all prescription-only medicines are regulated in law by the Medicines Regulation Act 2012 and cannot be subject to such promotions or advertisements «
The Gambling Commission confirmed that ‘it is illegal to offer a lottery without the correct licence or legal permission, even where it is intended to raise funds for charity’.
Lotteries on social media should be lawful
The Gambling Commission advises that a licence is required to run an online lottery. Online lotteries include lotteries that appear on social media, auction or selling sites, fundraising and live streaming platforms. The rules pertaining to lotteries state that ‘if you intend to run lotteries or raffles that will have ticket sales of more than £20,000 each month, or £250,000 in a calendar year, you will need to apply for a licence from the Gambling Commission. If your lottery or raffle is smaller than this, you can register with your Local Authority’.
‘Make sure you understand the requirements before you start to run a lottery. It is a criminal offence to run an illegal lottery and you could face prosecution. You may want to consider other types of fundraising if you do not want to apply for a Gambling Commission licence. Find out more about legal requirements for lotteries on social media. You should stop offering or advertising the lottery immediately if you don't have the correct licence. All money paid by those who have entered the lottery must be returned to them. You should not offer any more competitions until you have taken advice and you are sure that the lottery or raffle you are offering is legal. There are ways in which competitions can be run which do not amount to a lottery. Free draws and prize competitions can be run for commercial or private gain and can be used when promoting a product or raffling a high value item such as a car. You can read more about free draws and prize competitions.’ Remember that medicines cannot be advertised as a lottery prize, with or without a licence – this is not a ‘victimless’ crime.
What the public should know before taking part in a aesthetics medicine lottery
There are signs that you can look out for which you should always consider before you take part in a lottery on Facebook to help you understand whether they are lawful. The Gambling Commission advise you to ‘always check that the organisation running the lottery is either licensed by the Gambling Commission or registered with a local authority. You can check if an organisation is licensed by us to run an online lottery by searching for them on our public register. If the lottery is claiming to be raising funds for a well-known charity, contact the charity before you enter the draw to see if it is legitimate. You should not receive an email about a genuine lottery from a personal email address. You should also check that the Facebook Page running the lottery is verified. Pages that have been verified by Facebook will display a blue check mark. This means that Facebook have confirmed the Page is authentic’.
The Gambling Commission can and do investigate and bring prosecutions regarding criminal offences under ‘The Gambling Act’, 2005. If convicted, a person could face up to two years in jail plus a fine (Gambling Commission, 2021).
What does the Advertising Standards Authority say?
As per the see the Gambling Act 2005 for Great Britain and the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (as amended) for Northern Ireland, ‘promoters should take legal advice before embarking on promotions with prizes, including competitions, prize draws, instant-win offers and premium promotions, to ensure that the mechanisms involved do not make them unlawful lotteries.’ (ASA, 2022)
What counts as payment to enter?
‘The Committees of Advertising practice (CAP) understands that lotteries are generally illegal unless licensed by the Gambling Commission or they are a small or private lottery or part of the National Lottery. A prize promotion might be considered an illegal lottery if winner selection is based on chance, and participants are required to pay to enter or to pay for goods at a price that reflects the opportunity to participate.’
‘Prize competitions, unlike lotteries, do not need a Gambling Act licence. A prize competition must require entrants to exercise skill or judgment or to display knowledge, such that it can reasonably be expected to prevent a “‘significant proportion” of people from participating or from receiving a prize. Advertisers should contact the Gambling Commission or seek legal advice in relation to what constitutes sufficient skill or judgement. Marketers may charge for entry to a prize competition. A competition that does not involve some skill or difficulty will be treated as a process that relies wholly on chance, and therefore classed as a lottery. The rules on advertising lotteries are set out in Section 17 of the CAP Code’. See also and Betting and Gaming: Lotteries.
See CAP Guidance on the marketing of promotions with prizes, and Promotional Marketing: Competitions for more information about running compliant competitions.
What may count as illegal lottery?
For information on this, check the following guidelines.
‘A prize promotion might be considered an illegal lottery if participants are required to pay to enter or to pay for goods at a price that reflects the opportunity to participate. Examples of prices that reflect the opportunity to participate include increasing the price of a promotional pack compared to non-promotional packs before, during or after the prize promotion or reducing the quality or composition of the paid-for product or service during the promotion.’
‘If participants must pay to enter a prize draw or make a purchase which reflects the opportunity to participate, a free entry route, will be required in the UK generally, to ensure that the promotion is not an illegal lottery. Information about a free entry route should be presented in a way which ensures that those who see the ad and want to participate can see it and should be promoted at the same level as the paid for route. Promoters should consult the Gambling Commission guidance on Free Draws and Competitions, and seek legal advice to ensure the presentation and mechanism of any free entry route is sufficient.’
Conclusion
As we move towards the Licencing of Aesthetic Procedures in England, the JCCP will continue to raise the bar in all areas of ethical practice. This responsibility resides with us all—the JCCP urges practitioners to remain vigilant and not to be tempted to promote their services through the medium of either illegal advertisements, competitions or lottery promotions. A significant amount of advice and guidance is available to keep you the right side of the law!