A recent change in Federal Trade Commission ("FTC") enforcement policy may signal a shift in the FTC's approach to advertising for books and other publications.
The FTC announced in February that it is rescinding the so-called "Mirror Image Doctrine" — an enforcement policy first announced in 1971. According to the Doctrine, the FTC would not ordinarily challenge claims in advertising for books and other publications when the "advertising only purports to express the opinion of the author or to quote the contents of the publication." The Mirror Image Doctrine would not apply, however, if the publication or its advertising were being used "to promote the sale of some other product as part of a commercial scheme."
In the Federal Register Notice announcing its decision, the FTC stated its position that the Doctrine is no longer necessary in light of developments in the Supreme Court's commercial speech jurisprudence since 1971. Click here to read the full FTC Federal Register Notice.
This change in enforcement policy follows a challenge brought by the FTC in which the Mirror Image Doctrine was unsuccessfully invoked by the defendant. In 2007, Kevin Trudeau, the author and marketer of a weight-loss program, was found to be in contempt of his prior consent order for misrepresenting the contents of his book, The Weight Loss Cure "They" Don't Want You to Know About, in advertising. Last year, in FTC v. Trudeau, Trudeau moved for reconsideration, arguing that under the Mirror Image Doctrine all of his claims in the challenged infomercial were protected from enforcement. The Federal District Court in Illinois rejected Trudeau's argument and noted that the Doctrine merely expressed the FTC's general policy and did not bar the FTC from making exceptions. The court banned Trudeau from participating in any infomercials for any product for a period of three years and ordered him to pay more than $5 million dollars in disgorgement. See FTC v. Trudeau, 572 F. Supp.2d 919 (N.D. Ill. 2008).
This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.
