United States of America 

FEDERAL TRADE COMMISSION 

Washington, D.C. 20580 

November 13, 2023 

Via Federal Express and E-mail 

Ms. Nichole Andrews 

Nuti·ition with Nichole, LLC 

Dear Ms. Andrews: 

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

is to protect consumers by enforcing laws and mles that promote trnth 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 

and TikTok may be deceptive or unfair in violation ofthe FTC Act. 

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

For exarnple, in one video posted to Instagram and TikTok on June 19, 2023, you stated that, 

"it's okay to still enjoy your non-sugar· sweetened beverages" and that, "In summa1y these 

beverages are absolutely no threat to your health." As another exarnple, in a video posted to 

Instagram and TikTok on June 29, 2023, you disparaged guidelines released by the International 

Agency for Research on Cancer ("IARC"), an arm of the World Health Organization ("WHO") 

by stating that, "the opinion from IARC on aspariame is not the full picture" and that, "aspariame 

continues to be safe." In a video posted to Instagram and TikTok on July 17, 2023, you stated 

that, "aspariarne is still safe." A caption was displayed throughout which stated, "Aspa1iame 

increasing cancer risk?! Nope! Let's talk about it." It appears that you were paid by the 

American Beverage Association ("ABA") to make all ofthose posts. 

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 ah-eady clear· from the context ofthe 

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

 

 

Ms. Nichole Andrews 

November 13, 2023 

Page 2 

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, your posts of July 17 and your TikTok post of June 19 did not include any 

disclosure or other indication of your apparent material connection to the ABA. 

Second, even when your posts had disclosures, they 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 videos, you made endorsements 

through both visual and audible means, and so the disclosures should have been made both in the 

videos’ visual and audible portions. 

Third, you relied upon the “Paid partnership” disclosure tool in making disclosures in 

your Instagram post of June 19 and your Instagram and TikTok posts of June 29. 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). 

Finally, even if viewers read the “Paid partnership” disclosure in your June 19 Instagram 

post and your June 29 TikTok post, 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 the “Paid partnership with ameribev” 

disclosure in your June 29 Instagram post 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 

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. Nichole Andrews 

November 13, 2023 

Page 3 

engaging in conduct described therein could subject you and your company 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.

• 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

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’l 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’l Dynamics Corp., 82 F.T.C. 488 (1973), modified at 85

F.T.C. 1052 (1975).