“Up To” Advertising Claims: The FTC Weighs In

You see them all the time—advertisements claiming that a product or service will achieve a benefit of “up to,” “as much as,” or “as low as” a specified figure. Car dealers and finance companies, for example, may promote prices “as low as $16,995,” or rates “as little as 3% APR.” Sellers of energy-savings devices may promise savings of “up to 50%” off your utility bills.1 It’s not uncommon that there is a disconnect between what messages advertisers intend to convey and the ones consumers perceive. In this case, it seems fair to conclude that what advertisers are trying to say through a phrase such as “up to” is that the results individual consumers will achieve will vary and that the stated figure is a best-case scenario that not everyone, or even most, will obtain. Unfortunately, that may not be the same message that consumers (or the government) understand such language to be conveying, and it is consumer perception—not advertiser intent— that ultimately counts. Recent actions by the Federal Trade Commission involving window replacement advertisements—including five consent orders, warning letters to fifteen additional advertisers, and a report on the results of a copy test involving claimed energy cost savings—suggest that at least one agency of the government believes consumers read “up to” claims very differently from what most advertisers may have assumed. They also may provide considerable insight into what the FTC believes might be a deceptive practice under Section 5 of the Federal Trade Commission Act. The FTC is to be commended for its efforts to provide guidance to advertisers on when “up to” claims are permissible, and especially for its reliance on actual evidence of how consumers interpret such claims. Nonetheless, a number of important questions remain about what exactly the FTC’s guidance means, and additional clarity from the FTC would be useful. In the meantime, businesses should exercise caution about using “up to” claims in their advertising.