September 1, 1999 | Response Magazine

The Monster in the Mirror: Reflections on the FTC's use of the 'mirror image doctrine'

4 min

Previously published in Response magazine

The Federal Trade Commission Act gives the FTC the power to prosecute false or unsubstantiated advertising. If you advertise copper bracelets as a cure for arthritis, or shark cartilage as a cure for cancer, you might expect to get a letter from an FTC attorney demanding substantiation for your claim.

But the First Amendment to the Constitution permits authors to say just about anything they want in their books. So if you want to publish a book claiming that wearing copper bracelets cures arthritis, or that taking shark cartilage capsules will cure cancer, you're free to do so.

Of course, if you can't advertise your book, you're going to have a hard time selling any copies. And if you can't sell a book, you're going to have a hard time getting it published. The First Amendment wouldn't mean much if it only allowed you to write a book but didn't allow you to sell it.

All this is by way of introducing you to a little-known but very important legal principle known as the "mirror image doctrine." The mirror image doctrine is how the FTC reconciles its jurisdiction over advertising with the First Amendment. The FTC ordinarily will not challenge advertising claims that promote the sale of books or "other publications" -- which presumably includes audiotapes and videotapes as well as printed materials that don't resemble a conventional book -- as long as that advertising meets certain conditions. If it does, whether the advice being offered by the publication will achieve the results claimed for it does not matter.

For example, the advertising must only purport to express the opinion of the author or to quote the contents of the publication. In other words, the advertising can't claim that copper bracelets are "scientifically proven" to relieve the pain of arthritis. If you do make such a claim, you must substantiate that claim in the usual way -- by producing well-controlled clinical studies or other scientific evidence to support it.

Second, the publication (or the advertising for the publication) can't be used to promote the sale of some other product. So the author of a book about copper bracelets can't sell copper bracelets. (To play it safe, the author should think very carefully before selling a customer list to a third party who is planning to call those customers and sell them copper bracelets, or otherwise assisting anyone who markets copper bracelets.)

Few FTC decisions or orders discuss the mirror image doctrine, so its exact limits are far from clear. But we suspect that a lot of well-known book-and-tape products have escaped challenge not because the FTC believes that their contents are substantiated, but because it doesn't want to lose a case on First Amendment grounds. The FTC staff generally plays it safe when it identifies new cases to prosecute -- they tend to bring cases only when the facts and law are clearly in their favor -- so it would not be surprising if the staff gave a wide berth to any advertiser who had a plausible mirror image doctrine argument.

For example, the FTC has targeted numerous sellers of dietary supplements and exercise products that claim to help consumers lose weight, but it has not challenged many other marketers who make equally aggressive claims for their weight-loss regimens, but only sell books and tapes. We may never know for sure -- the FTC doesn't have to explain itself when it chooses not to take legal action -- but that seeming anomaly is probably due to the FTC's fear that it might lose such challenges on First Amendment grounds.

Selling a controversial weight-loss or health-care product might result in a demand for substantiation that supports your claims. But selling a book or tapes about the product should keep you out of harm's way -- if you comply with the requirements of the mirror image doctrine.