Tips on Substantiating “Up To” Claims

“Up to” representations in promotional materials often draw regulatory and private plaintiff scrutiny insofar as whether such claims are truthful and can be properly substantiated.  Which begs the question … how can an advertiser lawfully substantiate “up to” claims?

The answer?

It may depend upon various factors, including, but not limited to, the context in which the “up to” claim is made, whether the claim is unqualified, and whether applicable conditions, limitations, exclusions and restrictions have been appropriately disclosed.  It may also depend upon whether the matter involves the Federal Trade Commission, state attorneys general or a private plaintiff false advertising lawsuit.  And/or, upon the forum in which the legal or regulatory matter has been initiated, such as state court, federal court or the National Advertising Division.  Consumer perception testing prior to disseminating such claims can also be a useful tool when combating false advertising claims.

For example, at least one federal court has appeared to apply a “ceiling” test.  Would reasonable consumers understand such language to be a floor rather than a ceiling that can be achieved under limited circumstances?  Do the claims expressly or implied promise the best, maximum result?    Is it implausible that reasonable consumers would be deceived?  Would reasonable consumers understand such language to be a guarantee?  Would reasonable consumers understand such language to be a promise?

Now, consider the National Advertising Division.

The NAD often considers whether an “appreciable number” of consumers actually achieve the top range of the claimed benefit under circumstances normally and expectably encountered by consumers.  In other words, the NAD looks beyond whether the maximum results are achievable by reasonable consumers.  An appreciable number of consumers must achieve the results represented.

Importantly, the Federal Trade Commission has a very strict standard.

The agency believes that reasonable consumers understand “up to” claims to mean that they will ordinarily, normally and typically achieve the maximum advertised results.  See, FTC Report: Many Consumers Believe “Up To” Claims Promise Maximum Results.  From the FTC’s perspective, marketers that utilize “up to” claims must be able to prove that “consumers are likely to achieve the maximum results promised under normal circumstances.”  According to the FTC, it is insufficient that the maximum results are achievable, or that a reasonable number of consumers can achieve the stated results.

The FTC takes the position that merely advertising the maximum results that are achievable when such results are atypical, is deceptive and misleading.  A significant number of consumers must receive the maximum results.  Thus, under the FTC’s rigorous standard, unqualified “up to” claims may be inherently dangerous.

Consult with qualified legal counsel to carefully review “up to” claims in advertising.

Informational purposes only. Not legal advice. May be considered attorney advertising.

Richard Newman

Richard B. Newman is a nationally recognized FTC advertising compliance, CID investigation and regulatory enforcemetn attorney. He regularly provides advertising counsel and represents clients in high-profile investigations and enforcement proceedings initiated by the Federal Trade Commission, state attorneys general, departments of consumer affairs, and other federal and state agencies with jurisdiction over advertising and marketing practices. Richard is also an ecommerce lawyer and spam defense attorney. His practice additionally focuses upon false advertising defense, data privacy, cybersquatting, intellectual property law and transactional matters relating to the dissemination of national advertising campaigns, including the gamut of affiliate marketing, telemarketing, lead generation, list management and licensing agreements. Richard advises clients on how to minimize the legal risks associated with digital marketing, email marketing, telemarketing, social media influencer campaigns, endorsements and testimonials, negative option marketing models, native advertising, online promotions and comparative advertising,

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About This Blog and Hinch Newman’s Advertising + Marketing Practice

Hinch Newman LLP’s advertising and marketing practice includes successfully resolving some of the highest-profile Federal Trade Commission (FTC) and state attorneys general digital advertising and telemarketing investigations and enforcement actions. The firm possesses superior knowledge and deep legal experience in the areas of advertising, marketing, lead generation, promotions, e-commerce, privacy and intellectual property law. Through these advertising and marketing law updates, Hinch Newman provides commentary, news and analysis on issues and trends concerning developments of interest to digital marketers, including FTC and state attorneys general compliance, civil investigative demands (CIDs), and administrative/judicial process. This blog is sponsored by Hinch Newman LLP.

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