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A consumer spots a social media post from a dietician stating – for example – “Aspartame increasing cancer risk?! Nope! Let’s talk about it” and “It’s okay to still enjoy your non-sugar-sweetened beverages” because “these beverages are absolutely no threat to your health.” Wouldn’t it be material to consumers to know the dietician was being paid by a trade association to convey those messages? FTC staff warning letters sent to two trade associations and a dozen dieticians and other online health influencers don’t sugarcoat the principle that failure to include clear disclosures in social media posts could violate the law.

Fundamental to the is the established principle that the identity of a speaker – and on whose behalf they’re speaking – can be highly material to consumers. The letter to the American Beverage Association (AmeriBev) expresses concern that the group may have violated the FTC Act by failing to adequately disclose that influencers who promoted the safety of aspartame in Instagram and TikTok posts were hired by the Association to convey that message. Here’s what the FTC said to the trade association:

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 already clear from the context of the communication containing the endorsement. Material connections could consist of a business or 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 . . . . We have a number of concerns about the adequacy of disclosures by the dieticians regarding their apparent connections to [the American Beverage Association].

But the FTC didn’t stop there. Staff also sent warning letters to ten dieticians or health influencers who appear to have been paid by the American Beverage Association to tout the safety of aspartame in social media. The letters “strongly urge” the influencers to review their “Instagram, TikTok, and other social media posts as to whether they contain sufficiently clear and conspicuous disclosures of any material connections” and remind them that “Violations of the FTC Act may result in legal action seeking a federal district court injunction or an administrative cease and desist order.”

FTC staff sent a similar warning letter to The Canadian Sugar Institute, raising concerns that two dieticians who posted videos on Instagram endorsing the consumption of products containing sugar were paid by the Institute to convey that message. Like the letter to American Beverage Association, the warning letter to The Canadian Sugar Institute states, “We strongly urge you to review your social media policy. You should also review the Instagram and other social media posts made by endorsers you have paid as to whether they contain sufficiently clear and conspicuous disclosures of any material connections to the Canadian Sugar Institute.” The two dieticians received warning letters, too.

The letters give recipients 15 business days to contact FTC staff with how they intend to address the stated concerns.

If you use influencers in your marketing campaigns or if you’re an influencer yourself, the warning letters offer important reminders about FTC truth-in-advertising principles.  

Both advertisers and influencers have an obligation to disclose material connections. The legal responsibility for disclosing material connections is a two-lane highway. Advertisers should explain the rules of the road to influencers they bring on to promote their products and monitor what influencers are doing on their behalf. At the same time, influencers have an obligation to disclose in their posts who they’re working for. Furthermore, the fact that most of the influencers in question were registered dieticians wasn’t lost on FTC staff. Consumers are likely to give greater weight to the opinions of health professionals, which compounds the potential for injury when material connections aren’t properly disclosed.

How and where you disclose a material connection matters. It’s not enough to disclose a material connection any old place in social media. As the warning letters state, “Consumers should be able to notice the disclosure easily, and not have to look for it.” What’s more, “Any required disclosure should be presented without having to click.” In some instances, influencers “disclosed” their connection with obscure hashtags, at the end of longer descriptions that Instagram truncates, or in poorly contrasting type – methods the FTC staff says are insufficiently conspicuous.

Disclosures in videos may need to be audible, visual, or both. When endorsements are made audibly in a video, the video should include a prominent audible disclosure. When endorsements are made visually, there should be a prominent visual disclosure in the video as well. Videos that have both audible and visual endorsements should have prominent audible and visual disclosures.

It’s unwise to rely solely on platforms’ disclosure tools. Some influencers used Instagram’s “Paid partnership” tool to disclose they were being compensated. Here’s what FTC staff said in some of the warning letters: “The Commission has previously expressed concerns about the conspicuousness of such built-in disclosure tools alone.” That doesn’t mean influencers shouldn’t use those tools, but they’re likely to be more effective when used in conjunction with other, clearer forms of disclosure.

Influencers should clearly identify the sponsor of their posts. Standing alone, the “Paid partnership” disclosure conceals a highly material fact: Who’s the partner doing the paying? As some of the letters to influencers warn, “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.” Furthermore, in referring to some influencers’ social media posts, the letters note, “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.”

Future violations could prove costly. Included with the warning letters is the FTC’s Notice of Penalty Offenses Concerning Deceptive or Unfair Conduct Around Endorsements and Testimonials. As staff explained, “[R]eceipt of the enclosed notice puts you on notice that engaging in conduct described therein could subject you to civil penalties of up to $50,120 per violation.”

Looking for resources to keep your social media campaigns compliant? The recently revised FTC’s Endorsement Guides: What People Are Asking is a good place to start. You’ll find more information on the Endorsements, Influencers, and Reviews page.