THE BOTULINUM TOXIN AND COSMETIC FILLERS (CHILDREN) ACT 2021

Photo by Sam Moqadam on Unsplash

There has been a huge growth in the use of non-surgical cosmetic procedures over the last decade.[1] The use of such procedures is by no means only confined to the older person concerned at staving off the rapid onset of age; instead today the demands of “beauty” can be seen as much more pervasive.[2] Over the last few years there has been an increased interest by younger people, including teenagers, in the use of cosmetic procedures. This has been exacerbated by the use of social media and the rise of the “influencer” in an Instagram world. At the same time such a rise in use has been accompanied with concerns in relation to their safety. Risks in relation to Botox include such things as infections, breathing difficulties and double-vision; in the case of fillers scarring, infection and blocked facial blood vessels.[3]Concerns have also been expressed regarding the psychological impact of the use of Botox and fillers, for example, in relation to body image issues at a vulnerable time in personal development.[4] The whole area of cosmetic procedures is one characterised by piecemeal disparate regulation which is both complex and inadequate and this can be seen as particularly problematic in relation to persons under the age of 18.[5]

While there does not appear to be any general call to ban cosmetic procedures in general - this being seen as a matter of individual choice - the position in relation to those under 18 can be seen as somewhat different. Historically as a society, we restrict the choices of children on the basis of the harm principle in their best interests. So for example, there are examples of specific restrictions placed on young person’s choices to reduce the prospect of harm in the general area of body modification. Section 1 of the Tattooing Of Minors Act 1969 makes it an offence to tattoo a person under the age of 18 unless this is for medical reasons by a qualified medical practitioner or someone working under their direction. Section 2 of the Sunbeds Regulation Act 2010 places obligations on persons who operate sunbed businesses to ensure that persons under 18 do not use sunbeds. Failure to comply with these provisions also constitutes a criminal offence under section 2 (6) of the legislation, although there have been concerns expressed previously regarding compliance with this legislation.[6]

Concerns regarding the use of Botox and fillers by persons under 18 have now led to legislation. The Conservative MP Laura Trott, working with “Save Face”[7] which is one of the organisations that provides a register of cosmetic procedure providers, introduced a private members Bill with the aim of prohibiting the use of Botox and Fillers on persons under the age of 18. Unusually for a private members Bill, the proposed legislation received Government support which eased its passage through the House of Common and House of Lords. Botulinum Toxin and Cosmetic Fillers (Children) Act 2021, which applies to England, was finally given Royal Assent in May 2021. Section 1 of the Act creates the offence of “administering certain substances to a child”. In English law children are persons under the age of 18. Section 1(1) of the Act provides that:

    (1)It is an offence for a person to administer, in England, to another person (“A”)—

        (a) botulinum toxin, or

        (b) a subcutaneous, submucous or intradermal injection of a filler for a cosmetic purpose, where A is under the age of 18.

A “cosmetic purpose” is defined as being:

    “(3) For the purposes of subsection (1) (b), an injection of a filler is, in particular, to be taken to be for a cosmetic purpose if—

        (a) the filler is generally used for such a purpose, or

        (b) the likely effect of the injection is to alter the appearance of the person injected.”

There is however an exception under the section which is rather puzzling.

Section 1 (4) provides that:

    “It is a defence for a person charged with an offence under subsection (1) to show that at the time of the alleged offence—

    (a) the defendant was a registered medical practitioner,

    (b)the defendant was a regulated health professional who, in administering the botulinum toxin or the filler (as the case may be), was acting in accordance with the directions of a registered medical practitioner, or

    (c) the defendant—

        (i) had taken reasonable steps to establish A's age, and

        (ii) reasonably believed that A was aged 18 or over.

What constitutes a “registered health professional” is defined in section 1(7) as being

    “(7) In this section “regulated health professional” means—

        (a) a registered nurse;

        (b) a registered dentist within the meaning of the Dentists Act 1984 (see section 53 of that Act);

        (c) a registered pharmacist within the meaning of the Pharmacy Order 2010 (S.I. 2010/231) (see article 3 of that Order)…”

 
At first glance, this seems to resolve the problem. Use of Botox and Fillers by those under 18 is problematic - could lead to harms both physical and psychological - and thus even regardless of issues in relation to decision making capacity, it can be argued that the regulation on the public interest is justified. Save Face for example has claimed that “The legislation will make it illegal for those under 18 to access dermal filler and botox treatments[8].” But this is not as we have seen in fact what the legislation states. There is no criminalisation of those under 18 who access such treatments.

However on closer examination the legislation is somewhat more perplexing. The fact that someone undertaking the procedure is for example, a registered medical practitioner, does not address the question of whether society should be approving the use of Botox and fillers in persons under the age of 18. If it is needed to use Botox for example, for therapeutic purposes, then this could simply be expressly set out in the legislation itself. As currently drafted this section, rather than addressing the concerns of the use of Botox and Fillers by young people, appears to be simply providing that only certain practitioners are allowed to administer them to young persons - namely registered medical practitioners or a “regulated health professional” acting in accordance with the directions of a medical practitioner. If the issue is simply one of reducing harm to young people from unqualified practitioners then this new legislation may be seen to help to address those concerns. However, if the harm can also be seen in terms of psychological damage in perpetuating a culture of a specific type of body image which necessitates artificial enhancement of young healthy people, then this provision is wholly insufficient. A much clearer and effective measure would have been to introduce a statutory ban other than where the use was sanctioned for approved medical purposes akin for example to the ban on tattooing.

The offence under the legislation is not simply placed on the practitioner but also, under section 2, on the owner of the business where the Botox/filler has been injected. Enforcement powers under the legislation are given to local weights and measures authorities - the technical name for local Trading Standards Departments - under section 4. This is in line with the approach taken to enforcement of, for example breaches of the Sunbeds Regulation Act 2010 undertaken by local authorities. But as with enforcement of the 2010 Act, much depends upon whether there are at local level the resources to undertake such enforcement[9].

The Botulinum Toxin and Cosmetic Fillers (Children) Act 2021 can be seen as one step forward in attempting to address the need to regulate what the Keogh Committee referred to as the “wild west” of cosmetic procedures[10]. But it is a long way from what is actually needed; namely an effective comprehensive system of legal regulation in this area.[11]

Jean McHale is Professor of Health Care Law and Director of the Centre for Health Law Science and Policy at the University of Birmingham.

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[1] See discussion in M. Latham and J. McHale The Regulation of Cosmetic Procedures: Legal, Ethical and Practical Challenges (Routledge: 2020) chapter 1.

[2] See further H. Widdows Perfect Me (Princeton University Press, 2018).

[3] See discussion in debates in Hansard  Lady Wyd  Botulinum Toxin and Cosmetic Fillers (Children) Bill

Volume 811: debated on Friday 16 April 2021.

[4]  See generally J.V. McHale “Children, Cosmetic Surgery and Perfectionism: A Case for Legal Regulation?” In G. Laurie and P. Ferguson (eds) Inspiring a Medico-Legal Revolution ( Routledge:2015)

[5] See Latham and McHale note 1 chapters 4 and 5.

[6] See further M. Latham and J. McHale “A Matter of Life and Death? Regulating to avert the risk of cancer from commercial sunbed use in the UK and Australia” (2017) 3 Journal of Medical Law and Ethics 81.

[7]“BBC Politics Live – Campaign Victory! MPs Back Bill to Ban Fillers & Botox For Under 18s": https://www.saveface.co.uk/campaign-victory/

[8] See  Save Face note  7 above

[9] See discussion in Latham and McHale (2017) note 5 above.

[10] Department of Health, Poly Implant Prostheses (PIP) Breast Implants: Final Report of the Expert Group (18 June 2012) (Keogh Report 2012).

[11] See further McHale and Latham note 1 above chapter 7.