Many months ago, I decided to look into the burgeoning world of medical spas: those spa-styled clinics which offer body alterations such as laser skin resurfacing, laser hair removal, fillers, Botox, fat-freezing, chemical peels, and various treatments which are semi-medical in character but often not in law. This once-casual investigation into what a medical spa — or “medspa” — is, what they can and can’t do, who runs them and what they will look like in a few years’ time revealed a labyrinth of legal loopholes, dubious research, and a good chance of danger.
Well, the things I found out were pretty scary. Medspas perform facial procedures with lasers hot enough to damage your cornea; non-physicians operate machines that melt and destroy clients’ fat-storing tissue; medical assistants inject clients’ faces with a diluted form of botulinum neurotoxin, one of the deadliest substances known to man. If you live or work in a metropolitan area, the odds are you can purchase any of these services within a few-mile radius on your lunch break.
As of 2018, there were an estimated 5,431 medspas in the United States, up from 1,750 in 2013. They are inconspicuously located adjacent to doctors’ clinics, in strip malls, and the kinds of second-floor offices favored by psychics and dojos. More recently, medspas have been moving to luminous modern storefronts advertising once-discreet facial injections and fat reduction procedures as routine and necessary as a dental cleaning or a haircut.
For the purposes of investigating medspas’ plein-aire upscale brand-building, I went to Manhattan’s SKINNEY medspa, which has three locations on the island. I booked my consultation at their Flatiron office, a spacious street-facing second-floor parlor that it shares with a high-priced hair salon.
SKINNEY Flatiron looks like a spa made for rich women in space. Its bank of flatscreen Macs and glowing displays of backlit potions give a vaguely sciencey futuristic vibe, while a pastel curtain, salon chairs, and a plush upholstered desk anchor it into a comfortable pink-it-and-shrink-it realm, as though someone had installed pump-chairs in a 1950s obstetrician’s office. SKINNEY offers its customers Botox, fillers, laser skin resurfacing, laser hair removal, CoolScupting, and other procedures which run in the range of hundreds to thousands of dollars.
When I arrived, six or so “beauty directors” hovered over the front desk in form-fitting white outfits suggestive of retro nurses’ uniforms. After administering a brief iPad survey, a licensed esthetician (a person licensed via a state-approved course to “enhance” the appearance of a human being by means ranging from cosmetics to machinery) ushered me into a side room. She asked me how old I was, assuring me that she was 10 years older, which made me feel good because her skin was placental.
“So you want to treat your acne scars?” she asked, before I could tell her the reason for my visit.
I was actually there because I wanted to try Botox, the bellwether product of the cosmetic-surgery industry that paralyzes muscles to slow wrinkle formation, but with her question my acne scars suddenly became an absolute emergency.
She scrolled through selfies meant to show the difference between Botox — weird, unsettling — and lasering — less noticeable, which is the point of it. My scars were curable with a laser-skin resurfacing treatment which I purchased immediately. (The market price currently listed on the site is $450. SKINNEY does not take insurance; the American Medical Spa Association’s website notes that most medspas do not accept Medicaid.)
These lasers are located in SKINNEY’s Plaza Hotel location, in a glowing but isolated wing of the building filled with significantly better dressed clientele than the hoi polloi at the shopping center downstairs. Beautiful women in pseudo-healthcare uniforms with iPads sailed through the crowd, and I was promptly whisked into a small room filled with what look like car vacuum hoses, or, CoolSculpting wands (more on those later).
The medspa looked like a spa made for rich women in space.
A beauty director equipped me with a Netflix remote while she applied numbing gel, and 20 minutes later, the esthetician from SKINNEY Flatiron led me around the corner to a small medical office with an operating table and fitted me with UV-protection goggles. (One dermatologist later told me that the ablative laser used in the procedure could “remove someone’s cornea” without proper eyewear; a representative from Alma Lasers, the distributor of Pixel lasers, declined to comment on the record).
The esthetician ran what resembled a price gun over my face, which beeped as it pricked a precise matrix of miniscule holes to break up scar tissue and damaged cells, causing skin to shed and stimulating collagen and cell growth. Something smelled like it was burning. Within three hours, the numbing gel had worn off and I found myself standing over my kitchen sink, hiding my searing blood-red face from my boyfriend behind a wad of paper towels and ice.
The following morning, the esthetician texted as promised. “How is your skin feeling today, love?” she wrote. It felt like I slept on a frying pan and my skin looked like gauze. But after a weekend of shedding my old face, I had grown a dewy new layer of amphibious skin. The whole process was extremely painful and way out of my price range. I immediately scheduled an appointment to get another one.
If you’re wondering how businesses like medspas are allowed to co-opt the sanctity of doctors’ offices and run them under brand names, well, technically, they are not. The tricky part of this is pinpointing a clear legal standard for the “medical” part of “medspa.” When I asked a half-dozen legal experts and industry specialists about this, they were stumped.
The question proves difficult to answer because it requires tracing constellations over a universe of state-by-state regulations, FDA categorizations, new technologies, stipulations within license requirements, and conflicting definitions of what “medical” means. As a result, any plausible explanation of all of this inevitably ends up as an indecipherable run-on sentence, like the following:
The practice of medicine is defined separately by states, and it is typically broad and hinges on words like “disease” and “physical or mental well being,” so unless explicitly defined somewhere as a medical service, cosmetic procedures are up for interpretation, but some regulation might be covered by state boards of medicine, and judges might make decisions based on their discretion, but ostensibly ‘cosmetic’ devices are often categorized by the FDA as medical devices, but ‘medical’ devices fall into different regulatory categories, and prescription-only devices can be used by non-physicians “at the order of a physician,” and often non-physicians such as estheticians (in certain states) need licenses to practice, but doctors may delegate medical services to estheticians. You often won’t find rules stating which devices estheticians may or may not use, and the development of those devices often outpaces that of legislating, and use of a device depends on the nature of the procedure.
Right? Right.
So, who pays if you get hurt at a medspa? Kathryn Zeiler, a law professor at Boston University, said that medspa clients might have two paths to legal recourse. A breach-of-contract claim could hold up, but would yield limited potential monetary awards. You might bring a claim in tort — making the argument that the medspa committed civil wrongdoing by breaching a duty of due care — but this would require showing that the provider “acted unreasonably,” the standard for which is “quite vague,” Zeiler told me over email. “I’m guessing that these providers likely will treat only if the buyer agrees to an explicit waiver of the right to sue,” she added. “Because these sorts of procedures are voluntary in nature, courts are likely to uphold such waivers. So, in the end (and if the provider has good legal counsel), legal protection is likely to be quite limited.” (I signed a waiver before treatment at SKINNEY.)
On average, Americans are now getting their first Botox treatments in their 20s.
According to Connor Jackson, a partner at the Chicago-based healthcare business firm Jackson LLP, it’s hard to quantify the number of medspa-related lawsuits that occur in any given year, both because people often settle out of court and because “medspa” is not a legal (and therefore not search-friendly) term. Additionally, the law can’t possibly plan for every eventuality, so sometimes decisions come down to the discretion of judges or the opinion of state boards of medicine. “It’s sort of a guessing game,” he said. However, he did offer a long list of types of hypothetical suits, from criminal actions against improperly licensed owners to medical malpractice against licensed practitioners to product liability for things like “faulty lasers.” (Laser burns are the most common causes for lawsuits reported by members of the American Medical Spa Association — AmSpa for short — according to AmSpa CEO Alex Thiersch.)
One way to sue a medspa in the case of a serious injury would be to file a personal injury claim. “Say you slip on step on an icy sidewalk, you bust your knee, and you end up with a lifelong disability,” Jackson offered as an analogy. “Well, you sue the city for not maintaining the sidewalk, and then you sue the person who didn’t salt the sidewalk because residents and shop owners in a city like Chicago have a duty to put salt down. It’s not medical negligence, but it’s a breach of duty.”
As for who can legally own and operate a medical spa, most states bar non-physician-owned corporations from employing physicians for medical services under a legal standard called the Corporate Practice of Medicine Doctrine. To get around that, entrepreneurs can act as ersatz landlords, otherwise known as “management services organizations” (MSOs). Non-physicians can make money from medical services by owning the building, running the books, and providing managerial services. “This arrangement might seem to favor the physician, but that’s why he or she pays the MSO,” AmSpa’s Alex Thiersch wrote in a blog post. “And should the physician incur any sort of liability claim, the MSO is in the clear.”
The esthetician ran what resembled a price gun over my face, which beeped as it pricked a precise matrix of miniscule holes in my skin. Something smelled like it was burning.
There’s no standard legal definition for what the resulting entity — the medspa — is. Instead, Thiersch told me over email that there are inner-industry guideposts: a medical spa is understood as a business that provides “non-invasive aesthetic procedures, including both medical and non-medical.”
“For example,” Thiersch wrote me via email, “a facial is not medical because it doesn’t affect or impact living tissue — lasers and Coolsculpting are medical treatments because they do impact living tissue.” Something like liposuction, meanwhile, is “typically considered an invasive procedure.”
All of this means you should run the other way if a medspa receptionist ushers you straight onto a table without first letting you have a consultation with a physician, nurse, or physician’s assistant. AmSpa’s 2019 “State of the Industry” report estimated that 36 percent of medspas don’t have a medical doctor on staff; in 2017, the American Academy of Facial Plastic and Reconstructive Surgery (AAFPRS), an industry surveyor, predicted for 2018 an “increase in non-medical staff doing procedures resulting in poor results.”
For now, the “medical” half of “medspa” hangs on the “spa” element. While medical spas can sometimes be attached as clinics to an official medical practice, they are increasingly setting up shop next to gyms, hair salons, and cosmetics retailers, an industry insider told me, adding that there is cause to believe that this trend will continue.
And so medspas are forming symbiotic relationships with swanky beauty brands. For SKINNEY, that means planting outposts at places like New York’s Saks Fifth Avenue flagship “Future of Beauty” section, a terrifying 32,000 square-foot armory of luxury products and services. For consumers, all of this means that you can walk into a high-class retail setting and get your stretch marks lasered away. Increasingly you can also purchase more controversial services, such as cryolipolysis, better known as CoolSculpting.
Run the other way if a medspa receptionist ushers you straight onto a table without first letting you have a consultation with a physician, nurse, or physician’s assistant.
One of the more popular medspa procedures, CoolSculpting illustrates how these establishments straddle the murky divide between medical and spa treatments. The procedure, which may in some states be legally administered by any esthetician who has completed CoolSculpting’s training course, doesn’t involve a surgeon’s scalpel, but promises the desired effect of a serious “medical” procedure (in this case, liposuction).
Cryolipolysis was first observed in 1970 by doctors Ervin H. Epstein Jr and Mark E. Oren, who found that infants who sucked on popsicles lost mass and developed lesions in their cheeks, a phenomenon they called “popsicle panniculitis.” Thirty-odd years later, Massachusetts General Hospital doctors R. Rox Anderson and Dieter Manstein picked up on the theory and tested the fat-freezing process on pigs; in 2010, CoolSculpting was FDA-cleared to market their device to freeze “flanks,” (muffin tops), and eventually belly fat, banana rolls (under-butt fat), bra bulge, back fat, arm fat, and double chins. The procedure also found a celebrity spokesperson in Sonja Morgan, a Real Housewife of New York.
In order to get CoolSculpted, a technician vacuum-clamps your pudge into a heinous red exterior sausage with subfreezing paddles for 30 to 45 minutes. This reportedly breaks down fat cells that you will later pee out according to doctors, or poop out, according to popular belief. Each hour-long treatment typically ranges in price from $1,200 to $5,000, which can easily add up to tens of thousands of dollars over time, given that one session only kills about 25 percent of the targeted fat. CoolSculpting is colloquially described as “lunchtime lipo”— you can be in and out in the time it would take you to get a salad at Chopt — and it requires little post-treatment “downtime” (unlike my acne-scar treatment).
But this is a rather breezy way of talking about a procedure that alters the body’s cellular makeup by killing off a portion of your otherwise relatively stable number of fat cells that is not always performed by a doctor, costs thousands of dollars, and has unknown long-term effects.
According to the American Society of Plastic Surgeons (ASPS), 376,962 rounds of CoolSculpting were performed in plastic surgeons’ offices in 2018, though the actual number is likely much higher; the ASPS doesn’t track medspas. And the FDA, which does adjudicate the cosmetic surgery industry, tends to regulate products only after they’ve been tested on consumers, and companies work around this with the phrase “FDA-cleared.”
CoolSculpting’s status as an “FDA-cleared” device is relatively meaningless, since FDA clearance only means that the device has been cleared to be marketed. CoolSculpting has been sued for alleged deceptive marketing practices in its use of the term, which plaintiffs argue implies rigorous safety testing by the FDA. The National Advertising Division of the Better Business Bureau has also “cautioned” Zeltiq not to take fat removal claims out of its advertising, which it has not. Like the majority of medical devices, CoolScultping is a Class II medical device, which means that it did not necessarily have to undergo FDA testing and that the administration has deemed its potential risks to be slightly higher than those of Class I devices (like band-aids) and lower than Class III (like pacemakers).
The FDA identifies the risks of CoolSculpting as: “discomfort, pain, tenderness, thermal injury, systemic response to cold, electrical shock, electromagnetic interference, inflammation/foreign body response, and use error.” The spacious zone of Class II encompasses everything from mouthguards for snoring to latex condoms to electric wheelchairs; those Class II devices fall under their own “special controls,” a series of loose FDA recommendations, such as clinical testing, proper labelling, and including a diagram of the machine with the product. And once it’s on the market, the FDA “does not tell providers what to do when running their business or what they can or cannot tell their patients.”
It’s hard to say who is allowed to operate CoolSculpting machinery: the requirements are vague and vary from state to state. An informational sheet given to patients says says that the system “may only be used by or on the order of a physician.”’ In California, for example, CoolSculpting must be performed under the supervision of a licensed practitioner, but the Medical Board of California’s website states that supervising physicians do not need to be onsite in order to “supervise,” although they must “be available in person or by electronic communication at all times.” (Allergan, the pharmaceutical company that owns CoolSculpting, did not return request for comment.)
“Most states have found that with appropriate training, most medical spa employees not listed as doctors can [perform cryolipolysis],” Dr. Alan Matarasso, president of the American Society of Plastic Surgeons, told me. That’s more or less what a SKINNEY representative also told me over the phone.
In New York, anyone who, in industry parlance, “enhances” someone’s appearance for money by manual, mechanical, chemical, or electrical means must have an esthetician’s license. The extent of what an esthetician can do varies by state — in North Dakota, estheticians are not allowed to manipulate living tissue, but from what I can tell the California board that regulates the scope of an esthetician’s job description simply hasn’t gotten around to cryolipolysis yet. (“The Board of Barbering and Cosmetology provides no opinion on the contemplated use of any machine/device a licensee is considering purchasing,” they wrote via email.)
The procedure is not without side effects. One is a lump of hardened fat that can emerge in the weeks following a treatment called paradoxical adipose hyperplasia, which looks like a thick pad of frozen pie dough protruding from the treated area. This condition is generally referred to as “rare,” which can mean that it results from anywhere between one in 138 and one in 20,000 procedures, according to various studies, but CoolSculpting patients have reported bulges, irregular enlargements, thickness, fat growths, lumps, hardened texture, permanent inflammation, possible lipoma, and a “portion of the abdomen sticking out” to the FDA many times over. The recommended treatment for these conditions is liposuction.
On the other end of the medspa spectrum from SKINNEY is the “laser and light clinic” Skin Laundry. One of Skin Laundry’s 21 worldwide locations is located behind a tinted side door in the bowels of the Parker Hotel in Midtown New York City. The door leads to an elevator with only one button — down — and opens up into a corridor of various spiffing-up stations: a blow-out bar, a nail salon, a vintage boutique, a makeup kiosk. If you recall the assembly line from the Wizard of Oz, where Dorothy could get her eyes dyed blue, where a tin man could get a shine, where a lion could get a perm, that’s the basic concept of Skin Laundry.
Women in baseball tees ushered customers around the space signature $75 “laser and light facials,” a vaguely medical treatment two-step treatment. This facial goes like this: a registered nurse fires an infrared wavelength that heats and vaporizes pigmented cells, like brown spots and broken capillaries, and, according to Skin Laundry, also zaps the dirt in your pores. This is followed by intense pulsed light, or IPL, a non-laser light wavelength that penetrates the second layer of skin without wounding the surface.
The medspa business hinges on the concept that a potential customer needs more than a home skincare routine to stop the march of time on their body; they need an all-out war.
Unlike the ablative fractional laser treatment I got at SKINNEY, the lasers and flash lamps are both non-ablative, meaning that the suspiciously painless facial mainly targets your face’s superficial blotches and doesn’t cause shedding or pain. In the case of my pale companion on this trip, it didn’t produce any noticeable difference. He emerged from his laser-light experience with his faint upper lip hairs intact, his face neither redder nor whiter. The receptionist assured us that typically a transformation takes several trips before the customer can see a discernible change. The website describes the result of a laser light facial as “brighter.”
Skin Laundry’s use of IPL disturbs some doctors because the chain reportedly uses the same setting for every skin tone, even though the lasers can wound darker ones. (Skin Laundry did not return a request for comment.) A Skin Laundry representative told Allure in 2015 that they use a “very gentle” setting — so gentle that “it's not like the IPL used to treat sun damage or vascular lesions in a doctor's office.” In other words, many treatments are necessary to get results that you may or may not notice, and the accessible price of one laser-light facial quickly quintuples before results are seen.
The medspa business hinges on the concept that a potential customer needs more than a home skincare routine to stop the march of time on their body; they need an all-out war, consistently attacking their skin with lasers and needles in order to look their best. The trade group American Academy of Facial Plastic and Reconstructive Surgery reported that in 2017, 57 percent of participating surgeons had seen patients who wanted to “stay relevant and competitive at work,” a depressing assumption that aging makes you irrelevant in the eyes of your colleagues. Cosmetic surgery is no longer a mark of misspent wealth, but of necessity. Whether medspas attract a broader socioeconomic demographic is hard to say, since the industry does very little self-reporting with the exception of AmSpa, but anecdotally, a round of comparative phone calls to doctors’ offices indicated that the menu pricing is generally the same.
AmSpa’s Thiersch told me that on average, Americans are now getting their first Botox treatments in their 20s. That sounds bananas, but AAFPRS supports that perception, reporting that, in 2018, 72 percent of facial plastic surgeons surveyed relayed a rise in “prejuvenation” — cosmetic surgery or injectables for patients under age 30 — and declared the trend a “Millennial mainstay.”
Having freshly prejuvenated myself by way of lasers, I asked Deirdre Hooper, a New Orleans-based dermatologist, how often patients come to her with burns and scars and discoloration from medical lasers administered by untrained hands. “Every single day,” she said.
Oh.
“I would compare [laser resurfacing] to using an oven,” Hooper wrote me in an email. “An expert can know the correct temperature and time, and notice if something unexpected is happening, and use the oven to create something perfect. But a novice can really burn something as simple as slice-and-bake cookies.”
In 2017, a Virginia woman (who wishes to remain anonymous) emailed state delegates photos of her son’s back and torso covered with scars, claiming that a laser-hair removal procedure had been horribly botched by a spa employee, whom they later discovered was a janitor. Her story in part led the state to pass laser safety legislation outlawing the practice of laser hair removal unless performed under the supervision of a doctor, physician’s assistant, or nurse practitioner.
“Every single day.”
“The woman who ran the machine was kind of an all-around help person –– had no skills, no training,” the bill’s author, Virginia Delegate Mark Keam, told me over the phone. “She just happened to be in charge that day because she was the person in charge of cleaning up.”
“There are no regulations preventing you from using the word ‘med,’ ‘medical,’ or ‘clinic’ in your business title,” Keam said. “Doctors are required by law to show that they are licensed professionals, but once you go outside that, you can say you’re a ‘medical’ business if you sell herbal medicine or give massages.”
New York remains something of a Wild West for medspas. “Hypothetically speaking, in New York, a high-school dropout can legally operate a high-powered tattoo-removing laser without any medical supervision,” Dr. Anne Chapas, a dermatologist at Union Square Laser Dermatology told me. (There is currently a bill in the state senate which would require a consulting physician to conduct annual audits at “non-medical” practices offering laser hair removal. In New Jersey, on the other hand, only a physician can operate a laser.) When I searched for further information on medical and cosmetic laser regulation in New York, the Department of Health referred me to the Department of State, which referred me to the Department of Education, which advised me to contact the Department of Health.
Perhaps the scariest thing about medspas is the general lack of care they provide to customers that is a cornerstone of the medical profession.
“If, God forbid, there’s a complication, who are you going to call on Saturday at two o’clock?” ASPS President Matarasso said. He relayed the story of a patient who got anti-aging fillers in her hand and experienced such severe complications that she thought she might have to get her arm amputated. “That didn’t happen because I was able to connect her with a doctor,” Matarasso said. “But who is she going to call, a technician? The place where you got the injections may only be open from nine to five. Doctors are open 24/7.”
The grand irony is that you can get any medspa treatment for roughly the same price at a doctor’s office. And it is true that you can freeze your wrinkles, smooth your pockmarks, and zap your hair off on a lunch break, and it is also true that doctors will urge you to do so. But what doctors aren’t supposed to sell is the fantasy that you can painlessly meld your butt and skin down to a Kardashian-Jenner-Hadid-Baldwin composite without many thousands of dollars and trips to a medical office. Because, of course, you can’t.
