In Tennessee, who can legally perform microneedling and microblading on a client?

Plain-English summary

Microblading (a semi-permanent eyebrow tattooing technique using a pen-like instrument with fine needles to deposit pigment) and microneedling (a skin-rejuvenation procedure that uses a roller with fine needles to puncture the skin and infuse it with collagen or other prep) became popular cosmetic services in the mid-2010s. Tennessee's Board of Cosmetology and Barber Examiners asked the AG who could legally perform them. The AG sorted through three overlapping regulatory regimes: cosmetology, cosmetic-medical-service, and tattoo.

At a cosmetology shop. An aesthetician licensed under Tenn. Code Ann. § 62-4-103(a) and -108 cannot perform either procedure. Both microneedling and microblading penetrate the epidermis and affect the dermis (the living layer of facial skin). Tenn. Comp. R. & Regs. 0440-02-.16(2) prohibits aestheticians from "[s]kin removal techniques and practices which affect the living layers of facial skin, known as the dermis." Subsection (5) prohibits "[i]nvasive procedures . . . [including] [a]brasion of the skin below the non-living, epidermal layers." Both procedures are bleeding-capable and affect the dermis, so they are off-limits to aestheticians.

At a medical spa. Aestheticians still cannot perform them. The cosmetology rules apply to the aesthetician's professional conduct wherever they work; the location does not waive the prohibition. The only path is to fit within an exemption from the cosmetology laws. Tenn. Code Ann. § 62-4-109(a)(3) exempts "[p]hysicians and surgeons or trained nurses, trained nurses assistants, aides or similar personnel, acting solely in their professional capacities." A nurse acting in her professional capacity can perform microneedling at a medical spa.

Cosmetic medical services. Microblading and microneedling are also "cosmetic medical services" under Tenn. Code Ann. § 63-1-153(a)(1) because they use a mechanical device "that alters or damages, or is capable of altering or damaging, living tissues to improve the patient's appearance." That brings them within § 63-1-153, which means they can be performed only at a medical spa (a registered facility under § 63-6-105(a)) or a physician's office or practice owned by a physician.

Microblading is tattooing. Under Tenn. Code Ann. § 62-38-201(13), a "tattoo" is "any method of placing design, letters, figures, symbols, cosmetics or any other marks under the skin of a person with ink or color by the aid of needles or instruments." Microblading deposits pigment under the epidermis into the dermis. It is a tattoo. So to perform microblading legally, the practitioner needs to be either (a) a licensed tattoo artist under § 62-38-204, or (b) within the tattoo-law exemption in § 62-38-210(b) for physicians/surgeons and those they supervise. And whichever route, the practitioner also needs an exemption from the cosmetology laws under § 62-4-109.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Tennessee's cosmetology and medical-spa regulations have been updated since. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Background and statutory framework

The opinion frames the procedures carefully. Microblading uses a pen-like instrument with several fine needles arranged in a line; when pressed against the skin, the needles penetrate and leave pigment. Microneedling uses a roller-style device with multiple needles (between 0.25 and 3.0 mm in diameter) that roll over the skin, puncturing it to create a controlled injury and to deliver preparation materials or collagen. Both devices can cause bleeding and rupture blood vessels. The epidermis has no blood; if there is bleeding, the device has reached the dermis (the living layer beneath the epidermis).

The cosmetology regime. Tenn. Code Ann. § 62-4-103(a) and § 62-4-108 require Board licensure to practice cosmetology or aesthetics. Tenn. Comp. R. & Regs. 0440-02-.16(2) prohibits aestheticians from performing skin-removal techniques affecting the dermis. Subsection (5) prohibits invasive procedures, including "[a]brasion of the skin below the non-living, epidermal layers." Both microneedling and microblading cross into the dermis and are therefore Board-prohibited.

The cosmetology exemptions. Tenn. Code Ann. § 62-4-109 lists exemptions, including § 62-4-109(a)(3) for "[p]hysicians and surgeons or trained nurses, trained nurses assistants, aides or similar personnel, acting solely in their professional capacities." If a person fits within this exemption, the Board's laws and rules do not apply to the procedure. The Board's prohibition on aesthetician-performed dermis-affecting procedures therefore does not extend to physicians or nurses performing those same procedures.

The cosmetic-medical-service regime. Tenn. Code Ann. § 63-1-153(a)(1) defines "cosmetic medical service" to include any service using a "mechanical device of any kind that alters or damages, or is capable of altering or damaging, living tissues to improve the patient's appearance." Microneedling and microblading both qualify because their devices are capable of altering or damaging living tissue (the dermis).

§ 63-1-153(a)(4) defines "medical spa" as "any entity, however named or organized, which offers or performs cosmetic medical services." Medical spas must register with the Department of Health under § 63-6-105(a). Procedures involving cosmetic medical devices can be performed only in medical spas or in a physician's office or practice owned by a physician.

The tattoo regime. Tenn. Code Ann. § 62-38-201(13) defines tattoo as "any method of placing design, letters, figures, symbols, cosmetics or any other marks under the skin of a person with ink or color by the aid of needles or instruments." Microblading deposits pigment under the epidermis with needles. The AG concluded it meets the statutory definition of tattoo. Tattooing generally must be performed only at a licensed tattoo studio by a registered artist or apprentice under § 62-38-204.

Tenn. Code Ann. § 62-38-210(b) exempts from the tattoo-regulation scheme "any physician, surgeon or any person under the supervision of a physician or surgeon who is licensed to practice medicine in this state." So a physician or someone they supervise can perform microblading without being a tattoo artist, but the person still needs an exemption from the cosmetology rules under § 62-4-109(a)(3) (or equivalent).

The composite picture.

To perform microneedling on a client:

• The practitioner needs an exemption from the cosmetology rules under § 62-4-109 (most commonly the physician/nurse exemption in (a)(3)).
• The procedure must be performed at a medical spa or a physician's office under § 63-1-153.

To perform microblading on a client:

• The practitioner needs an exemption from the cosmetology rules under § 62-4-109 (most commonly the physician/nurse exemption in (a)(3)).
• The practitioner must be either a licensed tattoo artist (and operate at a licensed tattoo studio under § 62-38-204) or be within the tattoo-law exemption for physicians and those they supervise under § 62-38-210(b).
• If performed under the cosmetic medical service framework, the procedure must occur at a medical spa or a physician's office.

A typical real-world arrangement: a nurse practitioner working at a registered medical spa under physician supervision performs microblading. She is exempt from cosmetology law via § 62-4-109(a)(3); the procedure occurs at a medical spa per § 63-1-153; she falls within the tattoo-law exemption via § 62-38-210(b) because she is under physician supervision; her work is therefore lawful.

Common questions

Q: Can a licensed aesthetician do microneedling at a cosmetology shop?
A: According to this opinion, no. Microneedling affects the dermis, which is prohibited under Tenn. Comp. R. & Regs. 0440-02-.16(2) and (5).

Q: Can a licensed aesthetician do microneedling at a medical spa?
A: According to this opinion, no. The aesthetician's regulatory rules follow the practitioner, not the location. The aesthetician would have to fit within an exemption from the cosmetology laws, which they don't by virtue of being an aesthetician.

Q: Who can perform microneedling at a medical spa?
A: A physician, nurse, or similar personnel acting in their professional capacities, under the exemption in § 62-4-109(a)(3). The procedure must occur at a medical spa or a physician's office.

Q: Is microblading a tattoo?
A: According to this opinion, yes. It places pigment under the skin with the aid of needles, which fits the statutory tattoo definition in § 62-38-201(13).

Q: Can a licensed tattoo artist perform microblading?
A: A licensed tattoo artist at a licensed tattoo studio could perform microblading under the tattoo-licensing framework, but would still need an exemption from the cosmetology rules under § 62-4-109. Tattoo artists are not categorically within § 62-4-109's exemptions, so this can be a tricky path in practice.

Q: Who can perform microblading at a medical spa?
A: A physician/nurse acting professionally (the cosmetology exemption) who also falls within the tattoo-law exemption in § 62-38-210(b) (a physician or a person they supervise). A nurse working under physician supervision at a medical spa fits.

Q: Does the answer change if the procedure only affects the epidermis (non-living skin)?
A: For microneedling at a cosmetology shop, the AG noted that the answer doesn't depend on whether the procedure only affects the epidermis, because microneedling devices typically do affect the dermis. In theory, a device that strictly never crossed the epidermis would not be a "cosmetic medical service" under § 63-1-153(a)(1) (the definition is tied to capability of altering living tissues), but the AG noted that as a practical matter both procedures affect the living layers.

Citations and references

Statutes and regulations:

• Tenn. Code Ann. § 62-4-103(a), -108, -109(a)(3)
• Tenn. Code Ann. § 63-1-153(a)(1), (a)(4)
• Tenn. Code Ann. § 63-6-105(a)
• Tenn. Code Ann. § 62-38-201(13), -204, -210(b)
• Tenn. Comp. R. & Regs. 0440-02-.16(2), (5)

Related AG opinion:

• Tenn. Op. Att'y Gen. No. 12-91 (Sept. 25, 2012)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-031.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 20, 2017
Opinion No. 17-31
Licensing of "Microneedling" and "Microblading" Skin Procedures

Question 1
May an aesthetician licensed by the Board of Cosmetology and Barber Examiners perform microblading and/or microneedling in a cosmetology shop?

Opinion 1
No.

Question 1a
Does the answer to Question 1 depend on whether or not the microblading and/or microneedling affect only the non-living layer of the skin?

Opinion 1a
No.

Question 2
May an aesthetician licensed by the Board of Cosmetology and Barber Examiners perform microblading and/or microneedling at a medical spa, as defined by Tenn. Code Ann. § 63-1-153?

Opinion 2
No.

Question 2a
If the answer to Question 2 is yes, must such an aesthetician also hold any other license to perform such services?

Opinion 2a
The answer to question 2 is no.

Question 2b
Does the answer to Question 2 depend on whether or not the microblading and/or microneedling affect only the non-living layer of the skin?

Opinion 2b
Yes, but practically speaking, microneedling and microblading typically affect the living layers of the skin.

Question 3
May a person not licensed as an aesthetician by the Board of Cosmetology and Barber Examiners perform microblading or microneedling at a medical spa, as defined by Tenn. Code Ann. § 63-1-153?

Opinion 3
A person not licensed by the Board of Cosmetology and Barber Examiners may perform microneedling only if that person satisfies an exemption found in Tenn. Code Ann. § 62-4-109. A person not licensed by the Board of Cosmetology and Barber Examiners may perform microblading only if that person satisfies an exemption found in Tenn. Code Ann. § 62-4-109 and either is a licensed tattoo artist under Tenn. Code Ann. § 62-38-204 or is exempt from tattooing laws and regulations under Tenn. Code Ann. § 62-38-210(b).

Question 3a
If the answer to Question 3 is yes, must such a person hold any other license to perform such services?

Opinion 3a
See the answer to Question 3.

Question 3b
Does the answer to Question 3 depend on whether or not the microblading and/or microneedling affect only the non-living layer of the skin?

Opinion 3b
No.

Question 4
Do the marks created by microblading constitute a tattoo as such term is defined by Tenn. Code Ann. § 62-38-201(13)?

Opinion 4
Yes.

Question 4a
If the answer to Question 4 is yes, what license or licenses are required to perform such services?

Opinion 4a
An individual may perform microblading only if that person satisfies an exemption found in Tenn. Code Ann. § 62-4-109 and is a licensed tattoo artist under Tenn. Code Ann. § 62-38-204 or is exempt from tattooing laws and regulations under Tenn. Code Ann. § 62-38-210(b).

ANALYSIS

This Opinion assumes and is limited to the following definitions of the procedures of "microblading" and "microneedling." "Microblading" is a semi-permanent makeup procedure that enables a person to recreate lost eyebrows. Microblading is performed by manually depositing pigment into the skin by use of a pen-like instrument, which contains several fine needles organized in a line. When the instrument is pressed against the skin, the needles penetrate the skin and leave behind pigment. "Microneedling" is a skin-rejuvenation procedure that involves the use of a device that contains fine needles, which may be between .25 and 3.0 mm in diameter. The needles are organized on a cylinder, which is rolled over a person's skin to puncture it and create a controlled skin injury to infuse the skin with preparation materials or collagen. The devices used in both procedures are capable of causing bleeding or rupturing blood vessels. The uppermost layer of skin — or epidermis — does not contain blood or blood vessels. Any device capable of causing bleeding or rupturing blood vessels is therefore capable of affecting the living layers of skin, the dermis, which lies below the epidermis.

I. Microblading and Microneedling are Prohibited by the Board of Cosmetology and Barber Examiners.

The Tennessee Board of Cosmetology and Barber Examiners (the "Board") governs the practices of cosmetology and aesthetics, among other things. Tenn. Code Ann. §§ 62-4-103(a), -108 (requiring a license from the Board to "practice, teach or attempt to practice or teach, cosmetology [or] aesthetics."). The Board has promulgated rules specifying that "[s]kin removal techniques and practices which affect the living layers of facial skin, known as the dermis, are prohibited." Tenn. Comp. R. & Regs. 0440-02-.16(2) (emphasis added). And "[i]nvasive procedures that shall not be used include, but are not limited to" "[a]brasion of the skin below the non-living, epidermal layers." Tenn. Comp. R. & Regs. 0440-02-.16(5). Because both microblading and microneedling procedures generally cause bleeding or rupturing of blood vessels, or otherwise affect the dermis, they are generally "practices which affect the living layers of facial skin, known as the dermis" and are prohibited by the Board. Aestheticians, one of the categories of professionals governed by the Board, therefore may not perform microblading or microneedling, as those procedures affect the living layers of the facial skin, or dermis.

Because microblading and microneedling are prohibited under the Board's rules, to perform microblading or microneedling, an individual must come within one of the exemptions from the cosmetology laws recognized by Tenn. Code Ann. § 62-4-109. As applicable here, section 109 exempts from Tenn. Code Ann. §§ 62-4-101 through -138 certain individuals, specifically "[p]hysicians and surgeons or trained nurses, trained nurses assistants, aides or similar personnel, acting solely in their professional capacities." Tenn. Code Ann. § 62-4-109(a)(3). See also Tenn. Op. Att'y Gen. No. 12-91 (Sept. 25, 2012) (discussing Tenn. Code Ann. § 62-4-109(a)(3)). If the subsection 109(a)(3) exemption applies to a particular individual, the Board's laws and rules do not apply to procedures conducted by that individual.

II. Microneedling and Microblading May Be Performed at Medical Spas and Physicians' Offices or Practices.

The business location at which microblading or microneedling may be performed depends on whether microblading and microneedling are considered "cosmetic medical service[s]." Tennessee Code Ann. § 63-1-153(a)(1) defines "cosmetic medical service" as "any service that uses a . . . mechanical device of any kind that alters or damages, or is capable of altering or damaging, living tissues to improve the patient's appearance or achieve an enhanced aesthetic result." As described above, the microblading and microneedling devices can and often do pierce through the epidermal skin layer to cause bleeding or blood-vessel ruptures in the dermal skin layer. They are therefore "capable of altering or damaging . . . living tissue" (emphasis added) and are properly considered "cosmetic medical device[s]" under Tenn. Code Ann. § 63-1-153(a)(1).

Procedures involving "cosmetic medical devices" may be performed only in medical spas or "an individual physician's office or practice owned by a physician." See Tenn. Code Ann. § 63-1-153(a)(4) (defining "medical spa" as "any entity, however named or organized, which offers or performs cosmetic medical services"). Medical spas are required to register with the Department of Health. Tenn. Code Ann. § 63-6-105(a) (clarifying that "the registry shall include any physician-owned practice that advertises or holds itself out as a medical spa or a physician-owned practice that primarily engages in the performance of elective cosmetic medical services").

III. Microblading is Tattooing.

Marks left by microblading procedures are tattoos. Tennessee Code Ann. § 62-38-201 defines a "tattoo" as "any method of placing design, letters, figures, symbols, cosmetics or any other marks under the skin of a person with ink or color by the aid of needles or instruments." Generally, a tattoo involves the introduction of permanent pigmentation under the dead epidermal layer of skin and into the living dermal layer of skin. See 67 A.L.R. 6th 395 (2011); Stedman's Medical Dictionary (West 2014). To the extent microblading deposits ink or color under the epidermis and into the dermis, microblading meets the ordinary and statutory definition of "tattoo" and is subject to the laws and regulation applicable to tattooing. Normally, tattooing may be done only at a licensed tattoo studio by a registered tattoo artist, apprentice artist, or temporary artist. Tenn. Code Ann. § 62-38-204.

Tennessee Code Ann. § 62-38-210(b) specifies that the tattoo-regulation scheme in Tenn. Code Ann. §§ 62-38-201 through -212 "does not apply to any physician, surgeon or any person under the supervision of a physician or surgeon who is licensed to practice medicine in this state." Therefore, "any physician, surgeon or any person under the supervision of a physician or a surgeon who is licensed to practice medicine in this state" may, without registering as a tattoo artist or operating at a licensed tattoo studio, perform microblading that deposits coloration in the dermis (including at, for example, a medical spa or physician's office). Thus, to perform microblading without being a tattoo artist, apprentice artist, or temporary artist, an individual must satisfy an exemption from the Board's statutes and rules under Tenn. Code Ann. § 62-4-109(a)(3) and satisfy the exemption from the tattooing statutes and rules under Tenn. Code Ann. § 62-38-210(b).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JAMES P. URBAN
Assistant Attorney General

Requested by:
Mr. Ron Gillihan
Chairman, Board of Cosmetology and Barber Examiners
500 James Robertson Parkway
Davy Crockett Tower
Nashville, Tennessee 37243