The Federal Trade Commission’s recent action targeting food and beverage marketing using social media influencers could make the industry more cautious about how they undertake similar campaigns going forward.
Earlier this month, the FTC issued warning letters to two industry trade groups, the American Beverage Association and The Canadian Sugar Institute, along with 12 nutrition and dietitian influencers.
The government agency claimed the influencers paid by the groups did not properly disclose their payments on TikTok and Instagram posts when they were promoting the safety of the sweetener aspartame.
The warnings come after a cancer research arm at the World Health Organization in July classified aspartame as “possibly carcinogenic,” while a different agency within WHO added that it’s safe to consume within a certain limit.
Laura Brett, the vice president of the BBB National Programs’ advertising division, said the agency’s letters were not a legal enforcement, but are being used as a warning to get the companies closer to following the FTC’s recent guidance. She believes the groups will comply with the guidance going forward.
“While these recent letters were just warnings, they also put the associations on notice that future violations could result in civil penalties,” Brett said.
Samuel Levine, director of the FTC’s Bureau of Consumer Protection, said in a press release it is irresponsible for a trade group to hire influencers to tout products without being forthcoming about the partnership.
“That’s certainly true for health and safety claims about sugar and aspartame, especially when made by registered dietitians and others upon whom people rely for advice about what to eat and drink,” Levine said.
Based on the FTC’s guidance, disclosures of a paid partnership should be audible, visual or both, based on how the influencer endorsed the product in question.
Gonzalo E. Mon, an attorney for Kelley Drye & Warren LLP, said in a blog post this would mark a significant departure from how influencers usually endorse products from food companies on social media.
In a statement to Food Dive, William Dermody, a spokesperson with the American Beverage Association said the trade group will continue to disclose the relationship between dietitians and its members, and that it appreciates the FTC’s guidance.
“We took proactive, prudent and meticulous steps to be transparent about our partnership with credible experts who spoke to the science behind the safety of aspartame and the FDA’s determination that it is safe,” Dermody said. “Importantly, no question has been raised about the substance of these posts.”
New rules for influencers
The letters come after the FTC, which operates under the Department of Justice, updated its influencer endorsement guidelines earlier this year to promote transparency in posts from social media accounts where companies paid individuals to endorse their products.
The department’s crackdown began in 2017 when it sent letters to 1,000 influencers warning they were not making proper material disclosures to their followers. But some of those influencers said they were not paid by the company, and simply liked the products. The FTC has been urging influencers to make the distinction clear.
“The video itself has to contain the disclosure that it is a paid partnership and that there’s a material connection between the brand and the endorser,” Brett said in an interview.
The transparency can’t just include a hashtag that indicates the post is an ad or using the “Paid Partnership” disclosure tool on platforms, which FTC members declared were “too easy” for consumers to miss. This may be surprising to food and beverage companies who previously utilized these practices for influencer marketing, she said.
Scrutiny surrounding health
An influencer promoting the health or safety benefit associated with a food or beverage product has the unique ability to land a company in the crosshairs of the FTC, Brett said.
“One of the things that’s interesting about the letters is what they don't say,” Brett said. “They don't look at whether or not what the statements that are being made by the endorser are truthful. There's a lot of guidance out there that if you're working with an influencer, they can't say anything about the product that you can't say.”
The FTC’s specific targeting of industry groups is noteworthy, according to Brett, because most consumers are not aware of the companies that make up these trade associations. The American Beverage Association’s members include soda giants Coca-Cola and PepsiCo.
Marion Nestle, a professor of food studies and public health at New York University, said in an interview the FTC’s action could have an immediate effect on the practice of companies paying nutrition influencers to spread their message.
“People who see the TikTok ads are likely to think the dietitians are giving professionally sanctioned advice, when in fact they are flacking for food companies,” Nestle said. “Once a government agency goes on record with warning letters, continuing to engage in deceptive practices is an open invitation to class action lawsuits.”