United States of America 

FEDERAL TRADE COMMISSION 

Washington D.C. 20580 

November 13, 2023 

Via Federal Express and E-mail 

Ms. Keri Gans 

Dear Ms. Gans: 

The Federal Trade Commission ("FTC") is an independent federal agency whose mission 

is to protect consumers by enforcing laws and rules that promote truth in advertising and fair 

business practices, and by educating consumers and businesses about their rights and 

responsibilities. We are writing to express concerns that your marketing practices on Instagram 

may be deceptive or unfair in violation of the FTC Act. 

You posted dietary advice on Instagram endorsing the safety of aspaiiame. In a July 13, 

2023 post available as both an Instagram Video and a Reel, you stated "As you know, I've 

always been a fan of no and low calories sweeteners as part of an overall healthy diet, so I 

thought I'd shai·e with you that there's new info up on the FDA's website reaffuming the safety 

of aspaitame and other no and low calories sweeteners." You stated in the text description of the 

post that, "According to the FDA 'aspartame is one of the most studied food additives in the 

human food supply ' with more than 100 studies supp01ting its safety." You also stated in the 

text description of the post: "Check out the FDA's website for new info," and linked to an 

FDA.gov site regai·ding aspaitame. It appeai-s that you were paid by the American Beverage 

Association ("ABA") to make the post. 

The FTC's Endorsement Guides state that if there is a "material connection" between an 

endorser and the marketer of a product - in other words, a connection that might affect the 

weight or credibility that consumers give the endorsement - that connection should be clearly 

and conspicuously disclosed, unless the connection is already cleai· from the context of the 

communication containing the endorsement. Material connections could consist of a business or 

family relationship monetaiy payment, or the provision of free products to the endorser. "Cleai· 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ms. Keri Gans

November 6, 2023

Page 2

and conspicuous” means that a disclosure is difficult to miss (i.e., easily noticeable) and easily

understandable by ordinary consumers. Consumers should be able to notice the disclosure

easily, and not have to look for it.

We have a number of concerns about the adequacy of your disclosures regarding your

apparent connection to the ABA.

First, the disclosures for your post were not in the videos themselves. Viewers can easily

watch a video without reading disclosures in a post’s text description. There should be clear and

conspicuous disclosures in the videos themselves, for example, by superimposing much larger

text over the videos. In your video, you made endorsements through both visual and audible

means, and so the disclosure should have been made both in the video’s visual and audible

portions.

Second, you relied upon the “Paid partnership” disclosure tool in making your

disclosures. The Commission has previously expressed concerns about the conspicuousness of

such built-in disclosure tools alone. We think it is too easy for viewers to miss seeing the “Paid

partnership” disclosure in your posts. (That does not mean that you should not use such tools in

addition to other disclosures).

Third, while you used the word “#ad” at the beginning of the text description of your

Reel, we note that an Instagram Reel post’s text description is in small print, at the bottom of the

screen, sometimes poorly contrasting, and doesn’t stand out. Videos have many competing

elements. Therefore, we do not think that a disclosure in the text description of Reels is clear

and conspicuous.

Finally, even if viewers read the words “Paid partnership” and “#ad” disclosure, they

may be inadequate in the context of your post, because you did not identify the sponsor of the

post. Viewers might not understand that the sponsor is promoting the sale of aspartame or

products containing it. Without knowing who the sponsor of the post is, viewers might not be

able to adequately evaluate the weight and credibility to give your endorsement. Viewers may

be particularly confused because, in your video, you discussed FDA.gov and directed viewers to

“check out the site.”

I am enclosing the Federal Trade Commission’s Notice of Penalty Offenses Concerning

Deceptive or Unfair Conduct around Endorsements and Testimonials. The notice of penalty

offenses consists of Commission determinations in prior litigated cases that certain practices are

deceptive or unfair and are unlawful under Section 5 of the Federal Trade Commission Act. As

set forth in more detail in the notice, these acts and practices include failing to disclose a

connection between an endorser and the seller of an advertised product or service, if such a

connection might materially affect the weight or credibility of the endorsement and if the

connection would not be reasonably expected by consumers. Copies of the case decisions

discussed in the notice are available on the Commission’s website at www.ftc.gov/endorsementnotice-penalty-offenses. In addition, receipt of the enclosed notice puts you on notice that
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ms. Keri Gans

November 6, 2023

Page 3

engaging in conduct described therein could subject you to civil penalties of up to $50,120

per violation.1

We strongly urge you to review your Instagram and other social media posts as to

whether they contain sufficiently clear and conspicuous disclosures of any material

connections. To help guide your review, please see the Endorsement Guides2 and the staff

publication FTC’s Endorsement Guides: What People Are Asking.3 Violations of the FTC Act

may result in legal action seeking a federal district court injunction or an administrative cease

and desist order.

Please notify Cassandra Rasmussen via electronic mail at crasmussen@ftc.gov within

fifteen working days of receipt of this letter of the specific actions you have taken or will be

taking to address FTC staff’s concerns. If you have any questions regarding compliance with the

FTC Act, please contact Ms. Rasmussen by email or at 202-684-0175.

Very truly yours,

Serena Viswanathan

Associate Director

Division of Advertising Practices

Enclosure

1 See 15 U.S.C. § 45(m)(1)(B).

2 See 16 C.F.R. § 255 (Jul. 26, 2023), https://www.ecfr.gov/current/title-16/chapter-I/subchapterB/part-255. 3 FTC’s Endorsement Guides: What People Are Asking, https://www.ftc.gov/businessguidance/resources/ftcs-endorsement-guides-what-people-are-asking.
Notice of Penalty Offenses Concerning Deceptive or Unfair Conduct around 

Endorsements and Testimonials 

The Federal Trade Commission has determined that the following acts or practices in the 

use of endorsements and testimonials are deceptive or unfair and are unlawful under Section 5 of 

the Federal Trade Commission Act. 

2 

3 

4 

5 

• It is an unfair or deceptive trade practice to make claims which represent, expressly or 

by implication, that a third party has endorsed a product or its performance when such 

third party has not in fact endorsed such product or its performance. 1 

• It is an unfair or deceptive trade practice for an advertiser to misrepresent that an 

endorsement represents the experience, views, or opinions of users or purported users 

of the product. 2 

• It is an unfair or deceptive trade practice to misrepresent an endorser as an actual 

user, a current user, or a recent user of a product or service. 3 

• It is an unfair or deceptive trade practice for an advertiser to continue to advertise an 

endorsement unless the advertiser has good reason to believe that the endorser 

continues to subscribe to the views presented in the endorsement. 4 

• It is an unfair or deceptive trade practice for an advertiser to use testimonials to make 

unsubstantiated or otherwise deceptive performance claims even if such testimonials 

are genuine. 5 

• It is an unfair or deceptive trade practice to fail to disclose a connection between an 

endorser and the seller of an advertised product or service, if such a connection might 

materially affect the weight or credibility of the endorsement and if the connection 

would not be reasonably expected by consumers. 6 

• It is an unfair or deceptive trade practice to misrepresent explicitly or implicitly 

through the use of testimonials that the experience described by endorsers of a 

product or service represents the typical or ordinary experience of users of the 

product or service. 7 

, 57 F.T.C. 717 (1960); 

, 38 F.T.C. 1 (1944); 

, 46 F.T.C. 706 (1950). 

, 103 F.T.C. 110 (1984). 

, 82 F.T.C. 488 (1973). 

, 48 F.T.C. 800 (1952); 

, 33 F.T.C. 662 (1941). 

, 103 F.T.C. 110; , 96 F.T.C. 208 (1980); 

90 F.T.C. 770 (1977), , 605 F.2d 294 (7th Cir. 1979). 

6 , 103 F.T.C. 110. 

1 , 90 F.T.C. 770; , 82 F.T.C. 488 (1973), 85 

F.T.C. 1052 (1975). 

Mytinger & Casselberry, Inc. Ar-Ex Cosms., Inc. A. P. 

W. Paper Co., Inc. Wilbert W. Haase Co., Inc.

R. J. Reynolds Tobacco Co.

Id. Cliffdale Assocs., Inc.

Nat’l Dynamics Corp.

Cliffdale Assocs., Inc. Macmillan, Inc. Porter & Dietsch, Inc.

aff’d

Cliffdale Assocs., Inc.

Id.; Porter & Dietsch, Inc. Nat’l Dynamics Corp. modified at