Dear Ms. Agyeman: 

United States of America 

FEDERAL TRADE COMMISSION 

Washington D.C. 20580 

November 13, 2023 

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 

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

You posted dietary advice on Instagram endorsing the safety of aspartame. In a June 23, 

2023 post available as both an Instagram Video and a Reel, you stated, "The low-cal sweetener 

aspartame has been repeatedly affirmed as safe," and "[A] person weighing about 150 pounds 

will have to consume roughly 75 tabletop packets daily before it can potentially lead to adverse 

health outcomes." The text description of the post said that you had partnered with 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 clear 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. "Clear 

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

understandable by ordina1y consumers. Consumers should be able to notice the disclosure 

easily, and not have to look for it. 
Ms. Valerie Agyeman 

November 6, 2023 

Page2 

We are concerned about the adequacy of your disclosures regarding your apparent 

connection to the ABA. Although the text description of your post stated, "We partnered with 

the American Beverage Association" and "[ad]," the video itself did not include any disclosures. 

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. Because you made endorsements through both 

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

audible portions. 

In addition, the disclosure in the text description ofyour Reel is not visible without 

viewers clicking on the description. We also note that a Reel's text description is in small print, 

at the bottom of the screen, sometimes poorly contrasting, doesn't stand out, and that the 

accompanying video usually has many competing elements. We therefore do not think that text 

description disclosures in Reels are clear and conspicuous. 

I am enclosing the Federal Trade Commission's Notice ofPenalty 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 ofthe 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 ofthe 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 and your 

company 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 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 ofthe 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 ofreceipt of this letter of the specific actions you have taken or will be 

1 See 15 U.S.C. § 45(m)(l)(B). 

2 See 16 C.F.R. § 255 (Jul. 26, 2023), https://www.ecfr.gov/current/title-16/chapter-1/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. 
Ms. Valerie Agyeman 

November 6, 2023 

Page 3 

taking to address FTC staffs 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 ofAdvertising Practices 

Enclosure 
Notice ofPenalty 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. 

• 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 

ofthe 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 ofthe endorsement and ifthe 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 oftestimonials that the experience described by endorsers of a 

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

product or service. 7 

1 Mytinger & Casselberry, Inc., 57 F.T.C. 717 (1960); Ar-Ex Cosms., Inc., 48 F.T.C. 800 (1952); A. P. 

W. Paper Co., Inc., 38 F.T.C. 1 (1944); Wilbert W. Haase Co., Inc., 33 F.T.C. 662 (1941). 

2 R. J. Reynolds Tobacco Co., 46 F.T.C. 706 (1950). 

3 Id.; Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984). 

4 Nat'! Dynamics Corp., 82 F.T.C. 488 (1973). 

5 Cliffdale Assocs., Inc., 103 F.T.C. 110; Macmillan, Inc., 96 F.T.C. 208 (1980); Porter & Dietsch, Inc., 

90 F.T.C. 770 (1977), aff'd, 605 F.2d 294 (7th Cir. 1979). 

6 Cliffdale Assocs., Inc., 103 F.T.C. 110. 

7 Id.; Porter & Dietsch, Inc., 90 F.T.C. 770; Nat'! Dynamics Corp., 82 F.T.C. 488 (1973), modified at 85 

F.T.C. 1052 (1975).