• On November 13, 2023, the Federal Trade Commission (FTC) sent warning letters to the American Beverage Association (AmeriBev), the Canadian Sugar Institute, and a dozen dietitians and influencers promoting the safety of the artificial sweetener aspartame or the consumption of sugar-containing products on TikTok and Instagram. The letters allege that the dieticians and influencers did not adequately disclose that the associations paid for the endorsements. The warning letters put the trade groups and influencers on notice that further violations of the Endorsement Guides could result in fines of up to $50,120 per violation.
  • The FTC warning letters indicate that required material connection disclosures were either missing or not sufficiently prominent. In the FTC’s view, even express disclosures in social media posts, such as “Paid partnership,” “#sponsored,” and “#ad” were not compliant because they required a user to expand a truncated description or scroll down a longer post to see them, and were therefore not sufficiently conspicuous. Further, the disclosures were allegedly inadequate because some did not identify the sponsor at all, while others identified the sponsor as “ameribev,” which the FTC claimed many viewers may not understand. The warning letters also remind the trade associations and influencers that disclosures must be made in all of the same means in which the representation is made (e.g., if a video makes both a visual and an audible representation, it must also include both a visual and an audible disclosure). 
  • FTC’s recent update to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (the Endorsement Guides) makes clear that disclosures about the relationship between an advertiser and an endorser must be “clear and conspicuous” (i.e., “unavoidable” and “easily understandable”), and that even tags in social media posts and certain other types of communications can be endorsements.
  • Businesses should be aware that the FTC is also proposing a new trade regulation rule to crack down on deceptive online reviews, including endorsements that lack proper disclosures of a material connection between endorser and business.