United States of America

FEDERAL TRADE COMMISSION

Washington, D.C. 20580

November 13, 2023

Via Federal Express and E-mail

Ms. Sandra Marsden

President

The Canadian Sugar Institute

277 Wellington St. W

Suite 801

Toronto, Ontario M5V 3E4

Dear Ms. Marsden:

The Federal Trade Commission (“FTC”) is an independent agency of the United States

government 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.

We have reviewed posts by two registered dieticians, Jenn Messina and Lindsay Pleskot

(“the dieticians”), who posted dietary advice on Instagram endorsing the consumption of sugarcontaining products. Their posts are available as both Instagram Videos and as Reels. It appears

that the Canadian Sugar Institute paid them to do so.

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 clear from the context of the

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

family relationship, monetary payment, or the provision of free products to the endorser. “Clear

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

understandable by ordinary consumers. If the representation is made through both visual and

audible means, the disclosure should be made in the communication's visual and audible

portions. Consumers should be able to notice the disclosure easily, and not have to look for it.
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ms. Sandra Marsden

November 6, 2023

Page 2

We have a number of concerns about the adequacy of disclosures by the dieticians

regarding their apparent connections to the Canadian Sugar Institute.

First, none of the videos that we reviewed included any disclosures 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 videos in which endorsements

are only made visually, the disclosures should be made visually. Likewise, if the endorsements

are made through both visual and audible means, the disclosure should be made both in the

respective video’s visual and audible portions.

Second, the dieticians relied upon the “Paid partnership” disclosure tool to make

disclosures in most of their posts. 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 these posts. (That does not mean that you

should not use such tools in addition to other disclosures).

Third, although the text descriptions in posts by Ms. Messina included “#sponsored,” and

those in posts by Ms. Pleskot included “AD,” those disclosures appeared in or below the sixth

line in each post that we reviewed, making them insufficiently conspicuous. When people view

Instagram posts, longer descriptions are generally truncated, with only the first two or three lines

displayed unless viewers click on the text description. Any required disclosure should be

presented without having to click. In addition, an Instagram Reel’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. We therefore do not think that a disclosure in the text

description of a Reel is clear and conspicuous.

Finally, even if viewers read the “Paid partnership with @cndnsugarnutr” and “AD” or

“#sponsored” disclosures, they may be inadequate in the context of the posts, because the

dieticians may not have adequately identified the sponsor of the posts. Consumers are unlikely

to know that “cndnsugarnutr” means the Canadian Sugar Institute. Without knowing who the

sponsor of the post is, viewers might not be able to adequately evaluate the weight and

credibility to give the endorsement.

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 produce 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 your company on
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ms. Sandra Marsden

November 6, 2023

Page 3

notice that engaging in conduct described therein could subject the company to civil

penalties of up to $50,120 per violation.1

We strongly urge you to review your social media policy. You should also review the

Instagram and other social media posts made by endorsers you have paid as to whether they

contain sufficiently clear and conspicuous disclosures of any material connections to the

Canadian Sugar Institute. 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.
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