FTC Letters To Sugar-Promoting Influencers

 FTC sent warning letters to two trade associations and 12 influencers for not disclosing material connection in their posts promoting the safety of aspartame and sugar. This shows that FTC is serious about enforcing its endorsement guidelines.

There were some interesting FDA warning letters to write about this week, but this FDA action was too sweet to pass up.

Many of the actions included posts on TikTok. Amazingly, TikTok posts are rarely cited in agency action compared to other platforms such as Instagram. Why is this? Also, claims on TikTok have never been cited in an FDA warning letter, but I expect this to change in 2024.

Read about the FTC action.

FTC provides guidance on what conspicuous disclosure means. Learn more.

#Ad may not be enough. In the past, adding #Ad may have been sufficient, but now, a disclosure must be made in the format it was delivered. This means that "if the representation is made through audible means, the disclosure should be made in at least the communication's audible portion."

 From FTC warning letter. "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."

Reels must also have disclosures; adding a hashtag in the description is not enough. I understand most influencer rules, but this one is tough to comply with.

From FTC warning letter. "Videos have many competing elements. We therefore do not think that a disclosure in a Reels post's text description is clear and conspicuous."

Paid partnership is not adequate disclosure. Many platforms like Instagram require influencers to use their "Paid Partnership" heading. Unfortunately, this is not sufficient for disclosing the material connection. In the future, I'd like to see these platforms harmonize their requirements with FTC regulations.

This FTC quote sums it up, and I applaud FTC for this action. "It's irresponsible for any trade group to hire influencers to tout its members' products and fail to ensure that the influencers come clean about that relationship," said Samuel Levine, Director of the FTC's Bureau of Consumer Protection. "That's certainly true for health and safety claims about sugar and aspartame, especially when made by registered dieticians and others upon whom people rely for advice about what to eat and drink."

The moral of the story is to disclose material connection in all formats when necessary, audio, video, and clearly in text. Yikes, being an influencer is more difficult than it used to be.

Disclaimer: The educational information provided here is for informational purposes only. Contact an attorney for specific legal advice. Rule #1 in compliance is to ensure marketing is truthful and not misleading.