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Legal Review: The FTC 'Disappears' Its Mirror Image Doctrine

1 May, 2009 By: Jeffrey D. Knowles, Venable LLP’s Advertising, Response Contributor Response

The Federal Trade Commission's (FTC) Mirror Image Doctrine has gone the way of the Baltimore Colts. One morning in 1984, Colts fans learned to their shock that their beloved NFL team's equipment — lock, stock and horseshoe-insignia'd helmets — had been packed into a dozen Mayflower moving vans and driven to Indianapolis in the middle of the night.

Gary D. Hailey
Gary D. Hailey

Not quite 25 years later, those of us who follow the FTC woke up to find a notice on the agency's Web site announcing that its enforcement policy regarding the advertising of books — the Mirror Image Doctrine — had been rescinded. The FTC's decision to jettison this doctrine came out of the blue. The Commission didn't give the public a chance to comment — its decision was a fait accompli. Unless you subscribe to the West Virginia Law Review, you didn't see this one coming.

Jeffrey D. Knowles
Jeffrey D. Knowles

The Opinion Behind The Repeal

Readers of that legal journal — which is published by students at the West Virginia University College of Law — might have noticed an article in its March 2008 issue titled "Reflections on the Mirror Image Doctrine: Should the Federal Trade Commission Regulate False Advertising for Books Promising Wealth, Weight Loss, and Miraculous Cures?" The author, an FTC staff attorney, argued that the Mirror Image Doctrine was a "significant loophole" that hampered the agency's efforts to clean up deceptive advertising. It was obviously the inspiration for the FTC's recent action.

Why did the FTC feel the need to wipe the Mirror Image Doctrine off the books? The notice announcing the decision simply said that the doctrine was "unnecessary" given Supreme Court decisions applying the First Amendment to truthful and non-deceptive advertising.

But surely there's more going on here than mere bureaucratic housekeeping? The staff attorney who wrote the law review article believed that the Mirror Image Doctrine was hindering the FTC's efforts to stop deceptive advertising, and it seems likely that his bosses agree with him.

That belief seems questionable given recent developments in the FTC's long-running legal battle with infomercial pitchman Kevin Trudeau. Earlier this year, a federal judge ruled that the Mirror Image Doctrine did not protect Trudeau's advertising for his book, "Weight-Loss Cures They Don't Want You to Know About."

The First Amendment doesn't protect advertising that is deceptive. The court found that the Mirror Image Doctrine did not protect Trudeau's advertising either. But the FTC — or at least the staff attorney who wrote the law review article — must think that some advertising that is deceptive and not protected by the First Amendment is protected by the Mirror Image Doctrine.

The Future of Book Advertising

It's not clear where the FTC draws the line when it comes to determining whether advertising for a book is deceptive. For example, can advertising for a book that accurately quotes or describes the book's contents, and does not falsely claim or imply that there is substantiation for the book's recommendations when there isn't, still be attacked as deceptive merely because the government doesn't agree with what the book says? Even if you think the answer is "No," the FTC may disagree.

The Commission's past applications of the Mirror Image Doctrine have not always made sense. Once, FTC staff told us that it wanted one of our clients to refund money it had taken in from live seminars, but said they wouldn't go after the proceeds from the sales of videotapes of those very same seminars because the tapes were publications protected by the Mirror Image Doctrine.

Repealing the Mirror Image Doctrine may prevent legalistic and artificial distinctions between advertising books and promoting live seminars in the future. But it doesn't clarify just what an author or speaker needs to say (or not) in advertising for a book or seminar to avoid an allegation that the advertising is deceptive.

The FTC initially issued this doctrine because it recognized that government action restricting an author's ability to use advertising to tell the public about his book could limit his ability to communicate his ideas to the public. Until the FTC explains why it decided to rescind this policy now, marketers of publications should be very concerned about the its intentions.

Gary D. Hailey and Jeffrey D. Knowles are partners at Washington, D.C.-based Venable. They specialize in advertising and marketing law and can be reached at (202) 344-4000.

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