Belage Plastic Surgery Center, P.C

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IN THE MATTER OF BELAGE PLASTIC SURGERY CENTER, P.C., ET AL. CONSENT ORDER, ETC., INREGARD TO ALLEGED VIOLATION OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT Docket C-3401. Complaint, Sept. 8, 1992--Decision, Sept. 8, 1992 This consent order prohibits, among other things, a Virginia-based plastic surgery center and its founder from misrepresenting the likelihood of risks or scarring, the length of the recovery period, the amount of pain, or the need for pain medication, following plastic or cosmetic surgery. In addition, the order requires a risk disclosure any time the respondents state that cosmetic or plastic surgery procedures are safe.

Appearances For the Commission: Michael C. McCarey and Renate Kinscheck. For the respondents: Lewis Rose and Michael Eaton, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C. COMPLAINT The Federal Trade Commission, having reason to believe that BelAge Plastic Surgery Center, P.C., a corporation, (hereinafter BelAge) and George F. Miller, Jr., M.D., individually, and as an officer of BelAge ("respondents") have violated the provisions of the Federal Trade Commission Act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, alleges:

PARAGRAPH 1. (a) Respondent BelAge Plastic Surgery Center, P.C., is a Virginia corporation. Its offices and principal place of business are at 4900 Seminary Road, Alexandria, VA. (b) Respondent George F. Miller, Jr., M.D., is an individual medical doctor who founded BelAge, and is an officer and director of the corporate respondent. He directs, controls, and formulates the acts Complaint 115 F.T.C.

and practices of the corporate respondent, including the acts and practices alleged in this complaint. Dr. Miller's business address is 4900 Seminary Road, Alexandria, VA. (c) The aforementioned respondents cooperate and act together in carrying out the acts and practices alleged in this complaint.

PAR. 2. Respondents advertise, offer for sale, and sell and provide surgery services to the public and have done so at all times material to this complaint. Dr. Miller is an otolaryngologist, specializing in head and neck surgery and facial plastic surgery. Dr. Miller, through BelAge, associates with other doctors who are trained to perform plastic surgery of other parts of the body. In the spring of 1989, respondents, along with other plastic surgeons, were offered a preexisting cosmetic surgery marketing campaign which included suggested broadcast and newspaper advertisements and a brochure entitled Everything5 1 3 2 10 3 1053 1444 137 37 96.180878 You've5 1 3 2 10 4 1202 1446 147 46 96.559464 Always5 1 3 2 10 5 1362 1449 149 36 96.391991 Wanted5 1 3 2 10 6 1524 1450 53 35 95.929947 To5 1 3 2 10 7 1590 1451 116 35 96.481522 Knows 1 3 2 10 8 1718 1453 122 35 96.094521 About5 1 3 2 10 9 1852 1454 129 36 96.381187 Plastic4 1 3 2 11 0 646 1498 1334 56 -1 5 1 3 2 11 1 646 1498 185 46 89.072273 Surgery. Respondents purchased the campaign and, after some modifications, disseminated the brochure (hereinafter “brochure"). PAR. 3. The acts and practices of respondents alleged in this complaint are and have been in or affecting commerce, as com-4 1 3 3 3 0 641 1731 1115 46 -1 5 1 3 3 3 1 641 1731 136 35 89.648041 merce is defined in the Federal Trade Commission Act. COUNT I.

PAR. 4. The brochure contains the statement that breast lift surgery leaves5 1 5 1 2 3 956 2011 174 43 95.690834 minimal,5 1 5 1 2 4 1146 2014 122 45 96.821259 barely5 1 5 1 2 5 1283 2015 129 37 96.745392 visible5 1 5 1 2 6 1428 2019 126 34 85.630173 scars. (p. 14). PAR. 5. By and through the use of the statement referred to in the preceding paragraph, respondents falsely represent, and have represented, directly or by implication, that breast lift surgery is unlikely to result in permanent and conspicuous scars. PAR. 6. In truth and in fact, breast lift surgery is likely to result in permanent and conspicuous scars.

COUNT UH.

PAR. 7. The brochure contains the following statements: (a) recovery5 1 7 1 1 3 941 2704 163 39 93.505890 [following5 1 7 1 1 4 1119 2707 63 28 96.247467 faces 1 7 1 1 5 1196 2707 44 29 94.711761 lifts 1 7 1 1 6 1254 2709 174 36 72.937729 Operations]5 1 7 1 1 7 1444 2710 23 28 95.520668 is5 1 7 1 1 8 1482 2711 186 38 95.520668 surprisingly5 1 7 1 1 9 1682 2713 86 36 96.665276 quick5 1 7 1 1 10 1782 2713 55 28 96.518196 ands 1 7 1 1 11 1852 2715 111 36 96.641380 usually4 1 7 1 2 0 626 2751 1338 47 -1 5 1 7 1 2 1 626 2751 147 37 95.939812 pain-free.5 1 7 1 2 2 793 2752 90 29 96.231155 There5 1 7 1 2 3 894 2753 23 28 96.964050 is5 1 7 1 2 4 928 2762 80 20 96.977806 some5 1 7 1 2 5 1019 2755 133 36 95.528114 bruising,5 1 7 1 2 6 1165 2756 121 33 95.174606 stitches,5 1 7 1 2 7 1298 2757 54 28 96.585464 ands 1 7 1 2 8 1363 2758 142 37 96.897354 bandages5 1 7 1 2 9 1516 2760 84 35 91.338882 you'll5 1 7 1 2 10 1611 2760 71 28 96.618530 have5 1 7 1 2 11 1693 2766 28 23 96.581818 to5 1 7 1 2 12 1732 2767 48 30 96.794373 puts 1 7 1 2 13 1790 2770 37 28 96.851471 up5 1 7 1 2 14 1838 2762 67 29 96.887474 with5 1 7 1 2 15 1915 2762 49 29 96.606216 but BELAGE PLASTIC SURGERY CENTER, P.C., ET AL. 873 871 Complaint it doesn't take long. Some patients are back to their normal schedules within a week looking younger and feeling younger too." (p. 6). (b) after5 1 3 2 1 3 796 737 34 20 96.815735 an5 1 3 2 1 4 842 738 69 27 96.738029 easy5 1 3 2 1 5 923 730 81 28 96.930077 weeks 1 3 2 1 6 1016 730 34 28 96.930077 of5 1 3 2 1 7 1059 739 136 28 96.975372 recovery5 1 3 2 1 8 1210 731 82 33 96.936081 [after5 1 3 2 1 9 1303 731 92 29 94.372871 breasts 1 3 2 1 10 1407 732 146 28 94.372871 reductions 1 3 2 1 11 1567 734 187 35 89.730446 surgery]...5 1 3 2 1 12 1768 743 56 27 89.730446 you5 1 3 2 1 13 1837 743 52 19 91.222046 can4 1 3 2 2 0 554 776 410 38 -1 5 1 3 2 2 1 554 776 36 27 96.756783 be5 1 3 2 2 2 601 777 73 27 96.918510 backs 1 3 2 2 3 687 782 26 22 96.920921 at5 1 3 2 2 4 725 778 104 28 92.682220 work. (p. 14).

PAR. 8. By and through the use of the statements referred to in the preceding paragraph, respondents falsely represent, and have represented, directly, or by implication, that the recovery period following face lift and breast reduction is likely to be very short. PAR. 9. In truth and in fact, the recovery period following face lift and breast reduction is not likely to be very short. COUNT Ill.

PAR. 10. The brochure contains the statement that if a patient has an5 1 6 1 2 3 701 1453 197 41 96.762772 oversized,5 1 6 1 2 4 913 1455 204 45 96.525284 protruding5 1 6 1 2 5 1132 1455 81 35 92.811584 chin5 1 6 1 2 6 1230 1484 41 7 90.727470 ....5 1 6 1 2 7 1288 1467 143 34 96.757401 surgery5 1 6 1 2 8 1446 1457 41 34 96.848770 of5 1 6 1 2 9 1498 1458 57 34 96.968910 thes 1 6 1 2 10 1570 1458 81 35 96.876770 chin5 1 6 1 2 11 1666 1470 66 23 96.947845 cans 1 6 1 2 12 1747 1467 133 27 96.949638 correct4 1 6 1 3 0 545 1509 846 51 -1 5 1 6 1 3 1 545 1509 26 35 96.946533 it5 1 6 1 3 2 586 1509 157 46 96.970856 quickly,5 1 6 1 3 3 760 1511 112 46 96.721298 easily5 1 6 1 3 4 888 1512 68 35 96.742004 ands 1 6 1 3 5 971 1514 276 45 92.138275 permanently. (p. 9).

PAR. 11. By and through the use of the statement referred to in the preceding paragraph, respondents falsely represent, and have represented, directly, or by implication, that a protruding chin or jaw can usually be corrected through surgery which involves a very short recovery time.

PAR. 12. In truth and in fact, a protruding chin or jaw can not usually be corrected through surgery which involves a very short recovery time.

COUNT IV.

PAR. 13. The brochure contains the following statements: (a) Recovery5 1 8 1 1 3 872 2321 162 37 96.879387 [following5 1 8 1 1 4 1051 2331 116 28 96.958229 surgery5 1 8 1 1 5 1185 2328 28 22 96.921288 to5 1 8 1 1 6 1229 2329 108 22 95.687881 corrects 1 8 1 1 7 1353 2324 164 36 96.684967 protruding5 1 8 1 1 8 1534 2325 72 34 96.785995 ears]5 1 8 1 1 9 1625 2325 23 28 83.999290 is5 1 8 1 1 10 1667 2348 4 5 54.012474 .5 1 8 1 1 11 1691 2348 4 5 54.012474 .5 1 8 1 1 12 1716 2348 4 5 70.931511 .5 1 8 1 1 13 1738 2325 134 37 96.796112 painless.4 1 8 1 2 0 538 2368 831 40 -1 5 1 8 1 2 1 538 2368 91 37 96.882111 Many5 1 8 1 2 2 641 2369 120 36 96.449638 patients5 1 8 1 2 3 774 2370 110 36 97.006065 requires 1 8 1 2 4 896 2379 37 19 96.917084 no5 1 8 1 2 5 946 2370 65 37 96.712181 pains 1 8 1 2 6 1024 2371 231 28 39.750732 medication...5 1 8 1 2 7 1270 2373 46 35 89.789276 .(p.5 1 8 1 2 8 1331 2372 38 34 96.842766 9).3 1 8 2 0 0 538 2418 1334 94 -1 4 1 8 2 1 0 614 2418 1258 46 -1 5 1 8 2 1 1 614 2418 54 43 91.703667 (b)5 1 8 2 1 2 688 2426 80 28 96.650726 And post-op discomfort [following breast augmentation] is so mild it can usually be handled with Tylenol." (p. 14). (C) ...5 1 8 3 1 3 742 2539 34 19 82.365311 an5 1 8 3 1 4 787 2539 67 27 93.245880 easy5 1 8 3 1 5 867 2531 80 28 94.809357 weeks 1 8 3 1 6 958 2531 34 28 96.894089 of5 1 8 3 1 7 1000 2539 134 28 96.894089 recovery5 1 8 3 1 8 1147 2532 122 36 96.947693 (usually5 1 8 3 1 9 1280 2533 119 35 96.570961 Tylenol5 1 8 3 1 10 1411 2533 22 27 96.570961 is5 1 8 3 1 11 1446 2533 34 27 96.207115 all5 1 8 3 1 12 1493 2533 78 27 96.700317 that's5 1 8 3 1 13 1582 2533 108 28 96.691650 needed5 1 8 3 1 14 1703 2533 45 28 96.442482 for5 1 8 3 1 15 1757 2539 115 30 96.442482 post-op4 1 8 3 2 0 538 2578 814 39 -1 5 1 8 3 2 1 538 2578 181 34 96.428574 discomfort)5 1 8 3 2 2 734 2578 163 37 96.152534 [following5 1 8 3 2 3 909 2579 93 29 93.080826 breasts 1 8 3 2 4 1013 2580 185 34 83.162384 reduction]. (p. 14).

PAR. 14. By and through the use of the statements referred to in the preceding paragraph, respondents falsely represent, and have Complaint 115 F.T.C.

represented, directly, or by implication, that, following otoplasty (surgery to correct protruding ears), breast augmentation and breast reduction, most patients will experience no pain or only mild discomfort, and are not likely to require narcotic pain medication to relieve pain.

PAR. 15. In truth and in fact, following otoplasty (surgery to correct protruding ears), breast augmentation and breast reduction, most patients are unlikely to experience no pain or only mild discomfort, and are likely to require narcotic pain medication to relieve pain.

COUNT V.

PAR. 16. By and through the use of the statement that [n)or5 1 5 1 1 13 1934 1375 47 35 96.912750 do4 1 5 1 2 0 645 1433 1335 50 -1 5 1 5 1 2 1 645 1437 165 46 96.741829 implants5 1 5 1 2 2 823 1436 161 36 96.258247 interferes 1 5 1 2 3 997 1435 83 35 95.719688 with5 1 5 1 2 4 1092 1434 356 47 0.000000 mammography... (p. 13), respondents falsely represent, and have represented, directly or by implication, that silicone breast implants do not interfere with mammography. PAR. 17. In truth and in fact, silicone breast implants can interfere with mammography.

COUNT VI.

PAR. 18. By and through the combined use of numerous statements in the brochure referring to the safety of various plastic surgery operations, including, but not limited to, statements that [today's4 1 7 1 4 0 645 2059 1336 52 -1 5 1 7 1 4 1 645 2064 126 47 96.661354 plastics 1 7 1 4 2 786 2074 144 36 96.937088 surgery5 1 7 1 4 3 943 2064 63 34 96.965057 has5 1 7 1 4 4 1021 2068 119 41 96.988968 gotten5 1 7 1 4 5 1156 2073 40 24 96.996574 so5 1 7 1 4 6 1210 2061 129 36 93.298676 safe... (p. 4), [today's5 1 7 1 4 10 1666 2061 117 34 96.732498 breasts 1 7 1 4 11 1796 2059 185 36 96.997284 reduction4 1 7 1 5 0 645 2117 1336 51 -1 5 1 7 1 5 1 645 2123 213 45 96.873428 procedures5 1 7 1 5 2 874 2133 58 24 96.997910 ares 1 7 1 5 3 946 2121 130 35 92.696548 safe... (p. 14), and"... anyone's breasts can be easily and safely changed in almost any manner" (p. 12), respondents represent, and have represented, directly, or by implication, that plastic surgery is safe. Respondents have failed to disclose that such, surgery entails serious adverse risks. In light of respondents representations that such surgery is safe, such failure to disclose is a deceptive practice.

PAR. 19. By and through the aforesaid acts and practices, respondents engage, and have engaged, in unfair or deceptive acts or practices in or affecting commerce in violation of Section 5(a) of the FTC Act, 15 U.S.C. 45(a).

BELAGE PLASTIC SURGERY CENTER, P.C., ET AL. 875 871 Decision and Order DECISION AND ORDER The Federal Trade Commission having initiated an investigation of certain acts and practices of the respondents named in the caption hereof and the respondents having been furnished thereafter with a copy of a draft complaint, which the Bureau of Consumer Protection proposed to present to the Commission for its consideration and which, if issued by the Commission, would charge respondents with violation of the Federal Trade Commission Act, and The respondents, their attorneys, and counsel for the Commission having thereafter executed an agreement containing a consent order, an admission by the respondents of all the jurisdictional facts set forth in the aforesaid draft of complaint, a statement that the signing of said agreement is for settlement purposes only and does not constitute an admissicn by respondents that the law has been violated as alleged in such complaint, and waivers and other provisions as required by the Commission's Rules; and The Commission having thereafter considered the matter and having determined that it had reason to believe that the respondents have violated the said Act, and that a complaint should issue Stating its charges in that respect, and having thereupon accepted the executed consent agreement and placed such agreement on the public record for a period of sixty (60) days, now in further conformity with the procedure prescribed in Section 2.34 of its Rules, the Commission hereby issues its complaint, makes the following jurisdictional findings and enters the following order:

I]. Respondent BelAge Plastic Surgery Center, P.C., is a corporation organized, existing and doing business under and by virtue of the laws of the State of Virginia, with its office and principal place of business at 4900 Seminary Road, Alexandria, Virginia. 2. Respondent George F. Miller, Jr., M.D., is an individual medical doctor who founded BelAge Plastic Surgery Center, P.C., and is an officer and director of the corporate respondent. He directs, controls and formulates the acts and practices of BelAge Plastic Surgery Center, including the acts and practices alleged in the complaint herein. His business address is 4900 Seminary Road, Alexandria, Virginia.

Decision and Order 115 F.T.C.

3. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondents, and the proceeding is in the public interest.

ORDER DEFINITIONS For purposes of this order, the following definitions shall apply: 1. Advertising,5 1 6 1 1 3 1035 1214 152 46 96.648056 offerings 1 6 1 1 4 1194 1214 65 46 96.824677 for5 1 6 1 1 5 1271 1214 77 35 96.824677 sales 1 6 1 1 6 1363 1225 43 24 96.588348 or5 1 6 1 1 7 1414 1213 223 46 95.777130 promotion does not include any statement made by respondents or their representatives, agents or employees to a patient after the patient has agreed to purchase the procedure represented.

2. Recovery5 1 6 2 1 3 991 1449 154 45 94.663376 period means the period between when a typical patient of respondents has had the surgery represented and when such patient actually returns to a normal schedule, including social activities and full-time employment, but excluding strenuous exercise. 3. In order for a disclosure to be made prominently it must be in the same typeface and color contrast as the representation which triggers the disclosure.

4. Typical or typically means in the majority of instances or the majority of patients.

It is ordered, That respondents BelAge Plastic Surgery Center, P.C., a Virginia corporation, its successors and assigns, and its officers, and George F. Miller, Jr., M.D., individually and as an officer of said corporation, and respondents’ representatives, agents, and employees, directly or through any corporation, subsidiary, division or other device, in connection with the advertising, offering for sale or promotion of any cosmetic or plastic surgical procedure, in or affecting commerce, as commerce is defined in the Federal Trade Commission Act, do forthwith cease and desist from, directly or by implication:

BELAGE PLASTIC SURGERY CENTER, P.C., ET AL. 877 871 Decision and Order A. Representing that the results from any cosmetic or plastic surgical procedure can be achieved easily, simply or quickly or that the recovery period following any surgical procedure is quick, easy, or simple, when the recovery period is likely to be more than five days, unless the length of the recovery period is clearly and prominently disclosed in close proximity to such representation. B. Making any representation as to when patients can resume a normal schedule or return to work or making any other representation regarding recovery experience, which does not describe the recovery experience of a typical patient of respondents, unless one of the following is clearly and conspicuously disclosed in close proximity to such representation: (1) the recovery experience of a typical patient of respondents, or (2) that patients will experience the represented recovery experience only under limited or atypical circumstances. C. Representing that following breast augmentation, breast reduction, or any other cosmetic or plastic surgical procedure for which patients typically take narcotic pain medications during the post-operative period, patients are likely to experience no pain, or only mild discomfort, or are unlikely to require narcotic pain medication; provided, however, that this paragraph shall not apply if respondents can demonstrate that their patients typically do not take narcotic pain medication during the post-operative period for the procedure in question;

D. Representing that any cosmetic or plastic surgery procedure which entails serious adverse risks is safe unless respondents clearly and prominently disclose that such procedure entails adverse risks. For purposes of this order, the following disclosure shall be deemed adequate to satisfy this disclosure requirement: Of course, plastic surgery, like any surgery, has risks. Your surgeon will discuss the risks with you in detail.

The disclosure required by this paragraph shall be made either (1) in close proximity to such representation or (2) in the case of a written representation, on the same page as the representation, in which case the disclosure must be boxed and isolated from all other material, and be in the same typeface and color contrast as the largest and most noticeable representation on that page which triggers the disclosure. Decision and Order 115 F.T.C.

E. Misrepresenting the likelihood of serious adverse risks associated with any plastic or cosmetic surgical procedure or device implanted through any such procedure;

F, Misrepresenting the likelihood of permanent, extensive or conspicuous scars resulting from breast reduction, breast lift or abdominoplasty, or any other cosmetic or plastic surgical procedure which typically results in permanent and conspicuous scars; G. Misrepresenting the length of the recovery period following any cosmetic or plastic surgical procedure; provided, however, that nothing in this order shall prevent respondents from making any truthful representation as to when a typical patient of respondents returns to work;

H. Representing, contrary to fact, that little or no pain or discomfort is typically experienced as a result of undergoing any cosmetic or plastic surgical procedure;

I. Misrepresenting the need for pain medication or the type of pain medication that is likely to be needed to relieve pain following any cosmetic or plastic surgical procedure; provided however, that nothing in this order shall prevent respondents from making any truthful representation regarding the pain medication taken by a typical patient of respondents.

II.

It is further ordered, That respondents shall notify the Commission at least thirty (30) days prior to the effective date of any proposed change in the corporate respondent such as dissolution, assignment, or sale resulting in the emergence of a successor corporation, the creation or dissolution of subsidiaries, the filing of a bankruptcy petition, or any other change in the corporation(s) which may affect compliance obligations arising out of the order. Il.

It is further ordered, That respondents and their successors or assigns, shall distribute a copy of this order to each of their officers, agents, representatives, independent contractors and employees who are engaged in the preparation and placement of advertisements or BELAGE PLASTIC SURGERY CENTER, P.C., ET AL. 879 871 Decision and Order promotional materials, who communicate with patients or potential patients, who perform surgical services or who have any responsibilities with respect to the subject matter of this order. IV.

It is further ordered, That, for a period of ten years from the date of entry of this order, the individual respondent named herein shall promptly notify the Commission of the discontinuance of his present business or employment and of his affiliation with a new business or employment, with each such notice to include the respondent's new business address and a statement of the nature of the business or employment in which the respondent is newly engaged as well as a description of respondent's duties and responsibilities in connection with the business or employment.

V.

It is further ordered, That respondents shall maintain for a period of three years from the date the document is created or used, whichever is later, documents demonstrating the manner and form of respondents’ compliance with this order. It is further ordered, That such documents shall be made available to the Commission or its staff for inspection and copying within thirty (30) days of receipt of a request for an inspection.

VI.

It is further ordered, That respondents and their successors or assigns, shall, within sixty (60) days after service of this order, file with the Commission a report, in writing, setting forth in detail the manner and form in which they have complied with this order. Complaint 115 F.T.C.