European Union: 3 New ASA Cosmetic Surgery Decisions: Türkiye, Turkey, Or Turkeys?

Why has the ASA investigated these ads? And should it have done?

Have you noticed the way that counties keep changing their names? The Czech Republic decided to become Czechia, a name which is confusingly similar to the Russian republic of Chechnya, an entirely different place altogether. Perhaps the Chenchins should bounce the Czechs into court for passing off proceedings. Sounds like Check Mate for the Czechs.

It was characteristically culturally sensitive of the UK's Advertising Standards Authority (ASA) to have a preamble to their adjudications against advertising by three Turkish cosmetic surgery companies explaining that as of June 2023 the Republic of Turkey would now be known as the Republic of Türkiye, but the ASA had used the old name "because it is currently more commonly understood by consumers".

However, while the ASA may be culturally sensitive, are they engaging in a bit of culturally imperialism, imposing the UK's CAP Code on foreign advertisers? The CAP Code says that if a social media ad targets UK consumers, the ASA will refer the advertiser to the advertising regulator in the relevant country, if that country operates a suitable cross-border complaint system. In this case, the advertisers were all based in Turkey, whose regulator is a member of the European Advertising Standards Alliance, which operates a cross-border complaint system. But from the description of the ads, it is difficult to see anything that targets UK consumers. There was no use of prices in Sterling, no UK flags and no ".co.uk" domain names. If UK consumers were not targeted, why was the UK investigating these ads at all? And if they did target the UK, why didn't the ASA simply refer the matter to their opposite number in Turkey? Or Türkiye, if you prefer.

From the point of view of these three advertisers, they must have wondered why this regulator from thousands of miles away in B, thought they had any business investigating their advertising? Have they never seen Gallipoli? We lost. Presumably the advertisers are not members of any of the trade associations that require their members to abide by the ASA's complaints, such as ISBA. And now they've upheld the complaint, what happens now? If the advertisers do not comply with the investigation, what enforcement action will the ASA be able to take? Meta did not respond to the ASA's enquiries, so it is not clear whether they will be prepared to block advertising by a Turkish advertiser because of actions by a British regulator, particular when it is not clear that British consumers have been targeted.

The other interesting point raised in the preamble is that "the ads were identified for investigation following intelligence gathering by our Active Ad Monitoring system, which uses AI to proactively search for online ads that might break the rules" and that it was "part of a wider piece of work on cosmetic surgery abroad." There is no doubt that these ads are seriously problematic, and that the mischief of encouraging consumers to engage in medical tourism for cosmetic surgery is a serious one that should be challenged. But if the CAP Code does not apply, then it does not apply. It cannot be good for the credibility of the UK's self-regulatory system for the ASA to make adjudications that cannot be enforced. Which begs another question: how intelligent is this artificial intelligence, if it can't distinguish an ad that is in remit from one that isn't?

What is the problem with the ads?

The three paid-for Facebook ads all promoted cosmetic surgery in Turkey and were branded as "irresponsible" for "trivialising" the decision to undergo invasive cosmetic procedures and for exploiting insecurities around body image.

The ads for AsproMED, Erdem Clinic and ClinicHaus Health were seen on Facebook in May and June 2023 and featured the captions:

"Are you ready to unleash your inner beauty, dear friend? ...Get permanent beauty with Gastric Balloon."

"Don't let your nose overshadow your face. Get the look you dream of with Nose Job treatment. Choose to be the greater beauty that you can be."

"Rhinoplasty surgery, one of the most successful doctors in the world... Fill out the form now for the big summer campaign" – with a "VIP transfer" and "5-star package" included.

The ASA challenged whether: the references to "inner" and "greater" beauty exploited insecurities about body image; trivialised the decision to go under the knife by encouraging consumers to travel abroad and holiday in "the most beautiful city in the world" for the surgery; pressured consumers by asking consumers to "fill in the form now" and by offering "30% discounts on combined operations"; and omitted essential information, such as the requirement for a pre-consultation to assess the suitability of the patient for the procedure – which sometimes may need to take place in person.

How did the advertisers defend their ads?

AsproMED and Erdem Clinic did not reply to the ASA's investigation, but we don't why. Did they even receive the complaint notification? Or did they not accept the ASA's jurisdiction? We will never know.

However, Ersoy Health Services (t/a ClinicHaus Health) said that they were certified by the Turkish government to provide their cosmetic surgeries and claimed it was usual in the industry to include images demonstrating the effects of such cosmetic procedures. This defence is not unreasonable; effectively they are saying that they are governed by laws and regulations of Turkey, not the United Kingdom.

Meta made no comments in relation to any of the ASA's investigations, so it is unclear whether they will assist the ASA with any subsequent enforcement action if the three advertisers fail to comply with the ASA adjudications.

What did the ASA conclude?

The ASA criticised the ads for having "exploited people's insecurities." In particular, the image of the woman with a small, straight and slightly upturned nose in the Erdem Clinic ad suggested that "having a nose that did not conform to prevailing beauty standards was a source of concern" that could be fixed with cosmetic surgery, whilst the AsproMED ad featuring a slim woman holding a balloon and the references to "inner beauty" put pressure on consumers to conform to body image stereotypes.

The ASA advised that particular care should be taken when offering promotions for cosmetic surgeries. Whilst the act of offering a promotion it was not irresponsible in itself, the ASA highlighted that the decision to undergo an invasive cosmetic surgical procedure was not something that consumers should take lightly. In the case of Erdem Clinic, the combination of the prominent claim for "up to 30% discounts on combined operations" would pressure consumers into also having other cosmetic surgery procedures at the same time as the nose job being offered.

The ads also all omitted various information, including about the procedure itself, the location and the need for a pre-consultation which would assess the patient's suitability for the procedure and outline essential information such as the recovery time, potential risks and side effects. CAP Guidance on these types of ads states that they should not imply that cosmetic surgeries were "minor procedures" if that was likely to mislead consumers as to the complexity, duration or commitment required from the patient for the pre-consultation, surgery, recovery and post-operative assessments.

The companies have been told that the ads must not appear again in the forms investigated. The ASA also criticised AsproMEd and Erdem Clinic for their "lack of response and apparent disregard for the Code" and reminded them of their responsibility to reply promptly to any future investigations. But then again, if a British advertiser received correspondence from a Turkish regulator, how would they respond?

Kebabs. (Or key takeaways, to avoid being skewered)

For those familiar with the ASA, these rulings come as no surprise given the number of complaints that have been upheld over the past few years about ads offering cosmetic surgery. Targeting these types of ads at under-18s was banned last year.

With increasing reports in the news of procedures abroad gone wrong, the rulings illustrate that this has not gone unnoticed by the ASA and that it is a high priority area.

And yet while there is no doubt that the ASA is right to be concerned about this kind of advertising, an uncomfortable question remains about the ASA seeking to impose its rules on advertisers based outside the UK, particularly when there is no clear basis for arguing that the ads target UK consumers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.