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Japan: High Court Rules Tattooing Is Not a Medical Act

(Nov. 23, 2018) On November 14, 2018, the Osaka High Court acquitted a tattoo artist who had been convicted of violating the Medical Practitioners Act. (Osaka High Ct., Case No. 2017 (u) No. 1117 (Nov. 14, 2018) (in Japanese), posted by defense lawyers, Good Morning website.) Previously, the Osaka District Court had imposed a fine of 150,000 yen (about US$1,320) on the tattoo artist in September 2017, stating that tattooing is a medical act. (Osaka Dist. Ct., (Sept. 27, 2017) (in Japanese), posted by defense lawyers (case number not posted), Good Morning website.) Medical acts can be performed only by medical doctors. (Medical Practitioners Act, Act No. 201 of 1948, art. 17, Japanese Law Translation website.) The High Court stated that tattooing is not an act of providing medical treatment, maintaining that

  • in addition to health and hygiene knowledge, tattooing requires techniques and artistic sense that are not included in medical school curricula;
  • tattooing requires health and hygiene knowledge, but the level of that knowledge does not require a medical degree; and
  • foreign countries do not require medical licenses for tattooing, but provide other easier qualification systems.

Social Background

In Japan,  tattoos are not common because people generally associate them with gang members. Many hotels and inns do not allow tattooed guests to use communal bathing facilities. (Yoshimi Yamamoto, Is “Tattoo Taboo” in Japan Out of the Norm?YOMIURI SHIMBUN (July 21, 2018) (in Japanese).) Foreign tourists with tattoos may be barred from using public bath facilities and swimming pools. Recently, the international governing body for the sport of rugby, World Rugby, “has advised both players and supporters to cover up tattoos during the Japan 2019 World Cup to avoid causing offence to their hosts.” (Jack Tarrant & Nick Mulvenney, World Rugby Advise Teams to Cover Up Tattoos at Japan World Cup, REUTERS (Sept. 20, 2018).)

However, as the government tries to attract more tourists from foreign countries, attitudes toward tattoos have gradually begun to change. Japan’s Tourism Agency, for example, has asked tourism establishments with bathing facilities to accept foreign visitors with tattoos. (Regarding Responses to Tattooed Foreign Visitors’ Bathing, TOURISM AGENCY (Mar. 16, 2016) (in Japanese).) In addition, as more Japanese celebrities get tattoos, probably influenced by celebrities abroad, more Japanese people have started accepting tattoos and recognizing them as an art form. (Will Prejudice Be Reversed? The History of Tattoos in Japan, ORICON NEWS (Sept. 9, 2018) (in Japanese).)

Legal Background

In 2000, in response to an inquiry by the National Police Agency, the Ministry of Health, Labour and Welfare (MHLW) notified the Agency that “coloring skin by injecting colors into it with a needle” is regarded as a medical act. Therefore, the act of tattooing eyebrows and eye lines of customers at spa salons by employees without medical licenses violates the Medical Practitioners Act. (Questions Regarding the Medical Doctors Act, MHLW Iji No. 59 (June 9, 2000) (in Japanese), MHLW website.)  Many complaints of skin or health troubles allegedly resulting from such tattooing have been reported. There have also been many criminal cases against those providing tattooing services for beauty purposes.

General tattooing, not particularly for beauty purposes but for self-expression, is also “coloring skin by injecting colors into it with a needle.” That is the reason that the prosecutors indicted the defendant. However, the Osaka High Court distinguished general tattooing from tattooing for beauty purposes because tattooing for beauty purposes is included in the category of cosmetic procedures that have been established as medical acts. (Osaka High Ct., Case No. 2017 (u) No. 1117.)

Call for New Suitable Regulations

Currently there is no licensing system for tattoo providers in Japan. In response to the Osaka District Court’s judgment, tattoo artists have called for the establishment of a licensing system for tattoo service providers that would mandate hygiene and other classes. (Kumiko Yamane, Tattooing Getting More Common, Can Only Medical Doctors Perform It? How About Legal Regulations?, ASAHI SHIMBUN (July 22, 2017) (in Japanese).)