• by Wendy Davis , November 15, 2023

Recent ads on Instagram and TikTok touting the artificial sweetener aspartame didn't include sufficient disclosures, the Federal Trade Commission said this week in warnings sent to the American Beverage Association, the Canadian Sugar Institute, and 12 online health or diet influencers.

The ads, which touted aspartame as safe, either completely failed to disclose the relationship between the dieticians and trade groups, or included disclaimers that were too inconspicuous, or didn't convey enough information, according to the FTC.

For instance, some dietician influencers who endorsed the sweetener posted videos that only made disclosures in accompanying text -- not the video itself, the FTC said.

“If the representation is made through both visual and audible means, the disclosure should be made in the communication’s visual and audible portions,” the FTC said in a letter to American Beverage Association CEO and president Kevin Keane. “Consumers should be able to notice the disclosure easily, and not have to look for it.”

In other cases, the ads used hashtags like “#sponsored” or “#ad,” but too far down in their posts, according to the agency.

“When people view TikTok and Instagram posts, longer descriptions are generally truncated, with only the first two or three lines displayed unless viewers click on the text description,” the FTC wrote.

While the FTC has long said paid endorsements require prominent disclaimers, the new warning letters are “much more granular in identifying practices that don't go far enough,” says Mary Engle, senior vice president for policy at BBB National Programs and former director of the FTC's division of advertising practices.

For example, the FTC suggested to Keane that the disclosures should have identified the ads' sponsor by its full name.

“We are concerned that even if viewers read the “Paid partnership,” “#sponsored,” and “#ad” disclosures, they may be inadequate in the context of the posts, because some of the dieticians did not identify the sponsor of the posts,” the agency wrote.

“Viewers might not understand that the sponsor is promoting the sale of aspartame or products containing it,” the agency added. “Some dieticians identified 'ameribev' as the partner -- but many viewers may not understand what 'ameribev' is.”

The agency's letters to influencers included similar statements.

The FTC's letter to dietician Steph Grasso, who has 2.2 million TikTok followers, pointed to videos she posted to Instagram and TikTok that called the World Health Organization's recommendations about aspartame “clickbait based on low quality science.”

The commission wrote that even though Grasso's videos included the word “#ad,” the label wasn't prominent enough because it didn't appear until the sixth or seventh line.

Grasso also used the platforms' “paid partnership” disclosure tool, but the FTC said it was “too easy for viewers to miss seeing” that disclosure, and that it didn't identify the sponsor.

The agency also told Grasso and other influencers that the videos themselves should have included a disclaimer, which could have involved “superimposing much larger text over the videos.”

“In your videos, you made endorsements through both visual and audible means, so the disclosures should have been made in both the visual and audible portions,” the FTC wrote.

In June, the FTC said in updated guidance for influencer marketing that disclosures in any interactive electronic medium should be “unavoidable, adding disclosures that only appear when consumers click on a link labeled “more” are not unavoidable.

The FTC isn't challenging the substance of the ad campaign, which launched soon after the World Health Organization said the artificial sweetener was “possibly carcinogenic to humans,” but that adults weighing around 150 pounds would need to drink more than nine to 14 cans a day to exceed acceptable limits.

An American Beverage spokesperson said Wednesday that the organization "took proactive, prudent and meticulous steps" to be transparent about its partnership with "credible experts."

"We will continue our ongoing commitment to disclose the relationship between dietitians and American Beverage and we appreciate the FTC's guidance on how to best ensure transparency for our customers," the spokesperson added.