Ms. Mary Ellen Phipps 

November 13, 2023 

Page 2 

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. 

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

apparent connection to the ABA. 

First, 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. In your video, you made endorsements through both visual and audible means, so the 

disclosures should have been made in both the visual and audible portions. 

Second, although you disclose “#ad” in the text description, on Instagram Reels, the 

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 a Reels post’s text description is clear and conspicuous. 

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

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, we are concerned that even if viewers read the “Paid partnership” and “#ad” 

disclosures, 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 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. 

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 

engaging in conduct described therein could subject you and your company to civil 

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

1 See 15 U.S.C. § 45(m)(1)(B). 
Ms. Mary Ellen Phipps 

November 13, 2023 

Page 3 

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 Practice 

Enclosure 

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).