United States of America 

FEDERAL TRADE COMMISSION 

Washington D.C. 20580 

November 13, 2023 

Via Federal Express and E-mail 

Ms. Cara Harbstreet 

Dear Ms. Harbstreet: 

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

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

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

In one video posted on Instagram and on TikTok on July 6, 2023, you stated, while drinking a 

diet soda, that ''unless you are consuming the equivalent of seventy-five packets a day [ of 

aspaitame], you don't have to worry at all." In another video posted on Instagram and on 

TikTok on July 14, 2023 you asked rhetorically, "So you're saying that having a diet soda with 

aspaitame isn't a big deal?" to which you replied, "I'm just saying, whether or not you drink 

beverages with low and no calorie sweeteners is up to you, but you should feel safe making that 

choice." On Instagram, the posts ai·e available as both Instagram Videos and as Reels. 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 

weight or credibility that consumers give the endorsement - that connection should be clearly 

and conspicuously disclosed, unless the connection is already cleai· 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 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ms. Cara Harbstreet

November 6, 2023

Page 2

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 videos did not include 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 your videos, you made endorsements audibly, so the disclosures

should be audible. (If the endorsements had been made through both visual and audible means,

the disclosure should have been made both in the video’s visual and audible portions). Although

your Instagram video of July 14 displayed the words “Read the caption for more info!,” we

believe that to be inadequate.

Second, although you disclose “#sponsored” in the text description on TikTok and

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 disclosure in a TikTok or Reels post’s text description is clear and conspicuous.

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

The Commission has previously expressed concerns about the adequacy 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

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

not identify 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.

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 and your
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ms. Cara Harbstreet

November 6, 2023

Page 3

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, 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