Advertising Law Blog

Without the benefit of public comment, The FTC has announced that it is rescinding the agency's enforcement policy regarding the advertising of books and publications, known as the Mirror Image Doctrine. Previously, advertisers could be assured that if the advertising only reflected the opinion of the author of the book as to the contents of the publication, (i.e. was the mirror image of the publication), they could be safe that the FTC would not ordinarily bring an enforcement action because there was not adequate substantiate for the truth of the claims set forth in the book. This important area is now up in the air.

The FTC's Mirror Image Doctrine was first enacted in 1971 when the Commission published its "Advertising in Books" enforcement policy. It provides:

The Commission, as a matter of policy, ordinarily will not proceed against advertising claims which promote the sale of books and other publications: Provided,

The advertising only purports to express the opinion of the author or to quote the contents of the publication; the advertising discloses the source of statements quoted or derived from the contents of the publication; and the advertising discloses the author to be the source of opinions expressed about the publication. Whether the advice being offered by the publication will achieve, in fact, the results claimed for it in the advertising will not be controlling if appropriate disclosures have been made. This policy does not apply, however, if the publication or its advertising is used to promote the sale of some other product as part of a commercial scheme.

In deciding to abandon this long established policy, the FTC stated that the US Supreme Court had adequately delineated the areas of protected first amendment speech and that some minimal protection is given to commercial speech but that the government can still prohibit untruthful or misleading advertising and that commercial advertising does not enjoy full first amendment protections Of course there is a big difference between the limits of constitutional protection afforded to commercial speech and the kind of substantiation that an advertiser will now need before he can feel secure in marketing a book or publication which presents the authors beliefs regarding controversial topics such as "new cures for illness" or "how to win the lottery" etc. Advertisers will have to now examine what type2 of scientific research they must have in order to promote the publications, as well as what types of disclaimers they must make in the ads.

The FTC has now rescinded a long standing policy that guided marketers in their advertising, and has left a void without any guidelines. Marketers must now carefully review all promotional materials for books and publications to minimize the risk that the FTC will deem their advertising unlawful, and hold them accountable for the draconian penalties that the Act provides.

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