[Federal Register Volume 74, Number 36 (Wednesday, February 25, 2009)]
[Notices]
[Pages 8542-8543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3940]


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FEDERAL TRADE COMMISSION


Advertising of Books: Enforcement Policy

AGENCY: Federal Trade Commission (FTC).

ACTION: Statement of policy.

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SUMMARY: The Federal Trade Commission rescinds its stated policy that 
it will not ordinarily challenge claims in advertising that promote the 
sale of books and other publications when the advertising purports only 
to express the opinion of the author or to quote--i.e., mirror--the 
contents of the book or publication.

FOR FURTHER INFORMATION CONTACT: Keith R. Fentonmiller, (202) 326-2775, 
[email protected], or Edward Glennon, (202) 326-3126, 
[email protected], Attorneys, Division of Advertising Practices, Bureau 
of Consumer Protection, Federal Trade Commission, 600 Pennsylvania 
Ave., N.W., Washington, DC 20580.

SUPPLEMENTARY INFORMATION: On July 21, 1971, the Commission published 
its ``Advertising in Books'' enforcement policy, also known as the 
Mirror Image Doctrine (hereafter ``MID''). The MID enforcement policy 
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.

    Advertising in Books: Enforcement Policy, 36 FR 13,414 (July 21, 
1971). By its terms, the MID does not circumscribe the Commission's 
inherent authority to proceed against deceptive advertising for books 
and other publications. Rather, it is a guide for how Commission staff 
``ordinarily'' should approach such advertising.
    Five years after the FTC promulgated the MID, the Supreme Court 
decided that the First Amendment to the U.S. Constitution protects 
commercial advertising from undue government regulation, albeit not to 
the same degree as non-commercial speech. In Virginia State Bd. of 
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 
(1976), the Court held that ``speech which does `no more than propose a 
commercial transaction''' is commercial speech entitled to some form of 
First Amendment protection,\1\

[[Page 8543]]

although it recognized that the government still may prohibit 
untruthful or misleading advertising or impose other measures to ensure 
that ads are not deceptive.\2\ In subsequent cases, courts, including 
the Supreme Court, have held that a commercial advertisement does not 
necessarily enjoy full First Amendment protection just because it 
promotes a fully protected product or activity or incorporates 
statements that, outside the advertising context, are fully protected. 
See, e.g., Zauderer v. Office of Disciplinary Counsel of the Supreme 
Court of Ohio, 471 U.S. 626, 637 & n.7 (1985) (holding that statements 
contained in an advertisement for legal services regarding the legal 
rights of persons injured by the Dalkon shield normally would be fully 
protected speech, but not when presented in the context of an 
advertisement that proposed a commercial transaction--the offer of 
legal representation).\3\
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    \1\ 425 U.S. at 762 (quoting Pittsburgh Press Co. v. Human 
Relations Comm'n, 413 U.S. 376, 385 (1973), which held that sex-
designated help wanted ads were ``classic examples of commercial 
speech'' and could be outlawed without running afoul of the First 
Amendment). See also Bd. of Trustees of State Univ. of N.Y. v. Fox, 
492 U.S. 469, 473-74 (1989) (holding that speech that proposes a 
commercial transaction is ``the test for identifying commercial 
speech,'' citing Posadas de Puerto Rico Assocs. v. Tourism Co. of 
Puerto Rico, 478 U.S. 328, 340 (1986)); accord City of Cincinnati v. 
Discovery Network, Inc., 507 U.S. 410, 423 (1993). Compare Cent. 
Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 
563 n.5 (1980) (``This Court's decisions on commercial expression 
have rested on the premise that such speech, although meriting some 
protection, is of less constitutional moment than other forms of 
speech.'').
    \2\ \\425 U.S. at 771-72 & n.24. Accord Bates v. State Bar of 
Arizona, 433 U.S. 350, 382 (1977) (holding that advertising for 
legal services is commercial speech and noting that false, 
deceptive, or misleading advertising of legal services can be 
prohibited).
    \3\ Cf. Rushman v. City of Milwaukee, 959 F. Supp. 1040, 1043-44 
(E.D. Wis. 1997) (holding that the city could not regulate speech of 
an astrologer, because the targeted speech did not involve the 
proposal of a commercial transaction: ``[A]n astrologer's advice 
neither proposes nor encourages an additional transaction. In 
contrast, if [the astrologer] told her clients that they had curses 
and she could remove them, that would be commercial speech because 
she would be using astrology to sell her curse-lifting services.'').
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    The Commission has determined that the MID is unnecessary in light 
of the Supreme Court's commercial speech jurisprudence developed since 
the MID's adoption. The Court's commercial speech cases, not the MID, 
delimit the constitutional constraints on challenges to deceptive 
advertising claims for books and other publications that are 
commercially marketed. For the reasons described, the Commission hereby 
rescinds its ``Advertising in Books'' enforcement policy.

List of Subjects:

    Advertising, Consumer protection, Trade practices.

    Authority: 15 U.S.C. 41-58
    By direction of the Commission.

Donald S. Clark,
Secretary.
[FR Doc. E9-3940 Filed 2-24-09: 8:45 am]
BILLING CODE 6750-01-S