The Mirror Image Doctrine in the Post-Trudeau Era

By Linda A. Goldstein

Kevin Trudeau’s long battle with the Federal Trade Commission has ended with a recent decision by the Federal District Court to impose a three-year ban on Trudeau, prohibiting him from engaging in any infomercial activity for any product or service during this time period. This decision, in which it also ordered Trudeau to pay $5.1 million in disgorgement, follows a recent decision by the same Court in which Trudeau was found to be in contempt of his earlier FTC Consent Order because he misrepresented the contents of his book, “The Weight Loss Cure They Don’t Want to You to Know About.” While there are many lessons to be learned from this latest round of battles, one of the more significant lessons for the direct response industry concerns the Court’s interpretation of the Mirror Image Doctrine.

THE DEFINITION
The Mirror Image Doctrine represents a policy statement by the Federal Trade Commission regarding its enforcement of advertising claims made to promote the sale of books and other publications, which are protected by the First Amendment. It is perhaps one of the most misunderstood and often causes people to misquote the FTC. As the sale of books and other publications continues to remain a popular category for direct response marketers, it is important that the parameters of this doctrine be properly understood.

The Mirror Image Doctrine generally provides that the FTC will not proceed against advertising claims that promote the sale of books and other publications if the advertising claims merely reflect the opinion of the author or quote the contents of the publication. The full text of the Mirror Image Doctrine reads as follows:

“The Commission, as a matter of policy, ordinarily will not proceed against advertising claims which promote: 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 the 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 same or some other product as part of a commercial scheme.”

Thus stripped to its basics, the Mirror Image Doctrine will protect advertising claims made for a book or other publication, if, (i) the claims being made are direct quotes from the book or are clearly expressed as the opinion of the author; (ii) the advertising makes clear that the claims are based on statements in the book or represent the author’s opinion; and (iii) the claims are not also being used to promote some other product or service.

The Court’s initial finding that Trudeau had violated the terms of his earlier FTC Consent Order was based principally on claims made in the infomercial for the book to the effect that the diet protocol contained in the book was “easy” and “simple” to follow. The Court determined that these claims misrepresented the contents of the book because, in the Court’s view, the diet protocol was not, in fact, simple or easy. For example, the Court noted, the diet protocol required “colonics,” which can only be done in a doctor’s office, as well as injections of the human growth hormone (HCG). The Court pointed to several claims in the infomercial, which it believed also misrepresented the contents of the book, such as the claim that the diet protocol requires, “no exercise” and the claim that after finishing the protocol, consumers can eat “anything they want.” The Court characterized these claims as “blatant misrepresentations,” noting that the book makes clear that dieters must remain on the fourth phase of the protocol for the rest of their life, and that the fourth phase of the protocol also includes a recommended exercise component.

Trudeau attempted to defend the claims in the infomercial on the basis of the Mirror Image Doctrine, noting that all of the statements challenged in the infomercial could be traced back to the book. Thus, Trudeau maintained that all of these claims were protected from enforcement under the Mirror Image Doctrine.

THE COURT’S GUIDELINES
In rejecting Trudeau’s defense, the Court made a number of observations that serve as important guidance to marketers seeking to rely on the Mirror Image Doctrine in the future.

First, the Court noted, that according to Trudeau’s own testimony, Trudeau did not read the manuscripts of the books after dictating the text, and did not script his infomercials. Thus, the Court concluded that Trudeau could not possibly have relied on the Mirror Image Doctrine when appearing in the infomercials.

Secondly, although the Court acknowledged that there were specific statements in the book to the effect that the diet protocol was easy or simple, the Court clearly looked beyond the literal statements in the book and evaluated the diet protocol as a whole. The Court concluded that the diet protocol, when viewed as a whole, was neither “easy” nor “simple” and accordingly, in the Court’s view, the infomercial had misrepresented “the contents of the book.”

Third, the Court noted that the Mirror Image Doctrine is merely a statement of FTC policy and does not enjoy the force of law. The Court noted, in fact, that there have been no court decisions interpreting this doctrine.

Lastly, the Court noted that while the Mirror Image Doctrine might provide some defense to an initial enforcement action, the Mirror Image Doctrine had not been expressly incorporated into Trudeau’s prior Consent Order and accordingly, could not be relied on as a defense by Trudeau in an action by the FTC for contempt of that Order. Specifically, the Court opined that if the parties intended the Mirror Image Doctrine to govern Trudeau’s conduct under the Consent Order, it should have been expressly incorporated into the Consent Order.

So, what lessons can direct response marketers take from this decision? While the facts of this case, and Trudeau’s prior history were certainly key factors in the Court’s decision, marketers of books and publications should be wary of relying on the Mirror Image Doctrine as a complete defense to any claims made in their direct response advertisements. As the Court noted, the Mirror Image Doctrine is a statement of enforcement policy, and does not carry the force of law. Therefore, its provisions are not necessarily binding in the Court. Additionally, the Mirror Image Doctrine will not provide an absolute shield for all claims made in the advertising. Even if the statements made in the advertising can be traced back directly to literal statements in the book or publication, courts will likely look at the net impression of both the advertising and the contents of the book to determine if the advertising accurately reflects the book’s contents. Thus, as with all advertising claims, it will be the net impression that counts.

Finally, the Court’s refusal to incorporate the terms of the Mirror Image Doctrine into the Consent Order is an instructive lesson to anyone who may find himself or herself in the position of negotiating a Consent Order with the FTC.

Linda A. Goldstein is a partner and chair of the advertising, marketing and media division at Manatt Phelps & Phillips LLP in New York. She can be reached at (212) 790-4544.