United States of America 

FEDERAL TRADE COMMISSION 

Washington D.C. 20580 

November 13, 2023 

Via Federal Express and E-mail 

Ms. Andrea Miller 

Dear Ms. Miller: 

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

is to protect consumers by enforcing laws and rules that promote h"uth in advertising and fair 

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

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

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

You posted dietary advice on Instagram and TikTok endorsing the safety of aspaiiame. 

In one video posted to Instagram and TikTok on June 19, 2023, you stated "Sweeteners ai·e still 

safe, and a great way to reduce your sugai· intake, and if you want more reseai·ch visit 

safetyofaspaiiame.com." In a second video posted to lnstagram on June 29, 2023, you 

disparaged guidelines released by the International Agency for Reseai·ch on Cancer ("IARC") 

and stated that IARC's cancer classifications do not "have any quantifiable significance" and that 

"reseai·ch shows that consumption [ of aspaiiame] does not increase risk of cancer moliality." In 

a third video posted to Instagram and TikTok on July 13, 2023, you dispai·aged the IARC 

guidelines and also stated that "the WHO and the FDA both reaffinned aspaiiame safety. If this 

isn't your thing, these safe products should be available to those who wai1t to reduce their sugai· 

intake." Also on July 13, 2023 you posted a video to Instagram and TikTok in which you stated 

that "you could consume twelve or more diet drinks a day without any se1ious 1isks to your 

health" and "unless you 're a rodent given a mega dose, aspaiiame is likely not a lai·ge health 

risk." Each Instagram post is available as both an lnstagram Video and as a Reel. It appeai·s that 

you were paid by the American Beverage Association ("ABA") to make those posts. 

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

endorser and the mai·keter of a product - in other words, a connection that might affect the 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ms. Andrea Miller

November 6, 2023

Page 2

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. 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 posts were not included 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 videos, you made endorsements through both visual

and audible means, 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 for making disclosures in

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

addition to other disclosures)

Third, the words “#ad” or “#AD” appear on or below the 20th line of the text description

of each of your posts, making them insufficiently conspicuous. When people view Instagram or

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

displayed unless viewers click to see the rest of the description. Any required disclosure should

be presented without having to click. We note that a TikTok or Instagram Reel post’s text

description is in small print, at the bottom of the screen, sometimes poorly contrasting, and

doesn’t stand out. The accompanying video usually has many competing elements. Therefore,

we do not think that a disclosure in the text description of Reels or TikToks is clear and

conspicuous.

Finally, even if viewers of your posts read the “Paid partnership” or “#AD” disclosures,

they may be inadequate in the context of your posts because you may not have adequately

identified the sponsor of the posts. 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. Even the language of your “Paid partnership with ameribev” disclosures may be

inadequate, as many viewers may not understand what “ameribev” is.

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
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ms. Andrea Miller

November 6, 2023

Page 3

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

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, TikTok, 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