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Comment RSSFTC Says what “Up To” Means
Written by Richard NewmanJuly 22, 2012 # 7:54 pm # Legal Challenges, Specials # 5 Comments
On June 29, 2012 the Federal Trade Commission released a study regarding use of the phrase “up to” in conjunction with representations made in marketing collateral and whether the average consumer believes that they will achieve the maximum possible result or savings.
Specifically, the study describes what a test group of consumers thought about advertisements that claimed to provide “UP TO 47% savings on heating and cooling bills.” The results indicated that almost half of the respondents expected to save about 47% on their heating and cooling bills.
Why does this matter?
For one, claim substantiation. The FTC is now likely operating under the assumption that fifty-percent or more should obtain that result.
Advertisers tend to think that if one person obtains the maximum result then the claim can be safely made. However, it is crucial to remember that the starting point in a regulatory compliance analysis if to evaluate the “overall net impression from the standpoint of the reasonable consumer. Regulators evaluate the words, content, claims, photographs, placement and use of disclosures together, as a whole.
A press release from the Bureau of Consumer Protection Division following the study stated that the finding reinforces the Commission’s view that advertisers using these claims should be able to substantiate marketing claims that consumers are likely to achieve the maximum results promised under normal circumstances.
Those who desire to use the “up to” phrase going forward are well advised to consult with an Internet marketing attorney in order to assess compliance and best practice considerations regarding the dissemination of advertising creative.
While it appears that the new guidance is part of the Commission’s efforts to ensure that popular environmental marketing claims, or “green guides,” are truthful, non-misleading and based upon scientific evidence, there is a clear regulatory trend developing.
The National Advertising Division has provided more specific guidance on “up to” claims in recent decisions. The guidance offered by the recent report should be considered a warning. It is not a policy shift, but rather a specific clarification of the FTC’s ambiguous “up to” claim definition of an “appreciable number of consumers realizing the maximum advertising benefit a substantial amount of time.”
Further complicating matters is that the new guidance could potentially contradict the advertising industry’s self-regulatory “safe-harbor” that ten-percent of the users of a product must realize the maximum benefit.
Make no mistake about it. The Commission is highly-skeptical of “up to” claims. All those in the advertising stream of commerce must focus upon claim qualification and relevant, conspicuous disclosures.
Information conveyed in this interview/article is provided for information purposes only and does not constitute, nor should it be relied upon as legal advice. This information is not intended to substitute for obtaining legal advice from an attorney. No person should act or rely on any information in this article without seeking the advice of an attorney.
Written by Richard Newman
Richard Newman is an Internet Lawyer at Hinch Newman LLP specializing in advertising, intellectual property and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state attorneys general, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.
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Good post! But I don’t think FTC is now operating under the assumption that 50% or more should obtain the “up to” result advertised. It all depends on what product is being advertised and what claim is being modified by “up to”, and how difficult it is for consumers to evaluate the claim.
This study was done in conjunction with FTC’s cases against window replacement sellers and their energy savings claims – something very dificult for consumers to evaluate on their own. Their consent orders actually require that the substantiation they have for “up to” energy savings claims show that “all or almost all” consumers have achieved those savings. Yikes!
But what if “up to” is modifying a PRICE savings claim for a particular products, where consumers can easily evaluate for themselves what the price savings are? Maybe in that situation, it’s business as usual: just have substantiation showing “an appreciable number” achieved the price savings.
And what if “up to” is modifying performance claims for something totally different from an energy savings product — like a skin cream? Has the substantiation requirement for those claims now gone up, from “appreciable number” of consumers achieving the maximum results advertised, to “all or almost all?”
It all depends on what claim is being modified, and how easily consumers can evaluate the claim themselves. But marketers should certainly exercise more caution now with “up to” performance claims in light of these FTC cases and study, at least until FTC provides more guidance.
Solid points and arguments to be proffered if the issue arose. However, The Associate Director of Advertising Practices for the BCP has gone on record stating that the agency’s study “suggests 50 percent or more of users should get that result.” Wise not to assume that sometimes they FTC will accept only 25 percent. While a literal interpretation may not lend itself to every factual scenario, an overly-liberal one can have some pretty severe consequences. What is unequivocally clear is that claim substantiation must be taken very seriously. Clearly, a minority of consumers that may have achieved the advertised result just will not cut it, regardless of the product or service.
Actually, what Mary Engle said in AdWeek recently was:
“Before advertisers may have thought that if one person got the maximum result, they could make the claim. Our study suggests 50 percent or more of users should get that result”.
And AdWeek reported, “Though Engle said the guidance was NOT a shift in policy or regulation, the new guidance clarifies the FTC’s fuzzy “up to” claim definition of an “appreciable number of consumers realizing the maximum advertising benefit a substantial amount of time.”
So, IF the standard is being changed, this is a new development that all advertisers must take note of. But nothing should be assumed at this point, without further clarification from FTC. Certainly, fewer than 50% of users getting the maximum result claimed is now riskier than before.
But there is no shift in FTC policy – yet! FTC’s prosecutorial discretion is wide, and the type of product and type of claim does matter! All the more reason to seek advertising/marketing counsel before launching a campaign!
Great article very good topic here. Thomas I think the line of thinkin that you follow is exactly the type that lands people in hot water. I most definitely see the issue as a consumer. The use of “up to” is more often than not a ploy to draw in consumers. When an ad says “up to 70% off” what percentage of people receive 70%? Its pretty damn low and we all know it regardless of the product. Otherwise it would be marketed differently. I’m not a legal pro but I’m a marketing pro and I understand how it works.
Whats happened here is the FTC has begun to narrow in on this “misleading” (I wont call it deceptive) marketing tactic.
Mary Engle is another person making comments on what she sees, referencing her as a reason to take liberties is an absolutely insane business move. A good business is able to stay ahead of the curve. When something is being looked into, its smart to heed the warning signs and at the very least, cool off until things become a bit more definitive.
Mr Richard, I see what you are saying and agree that this is somewhat suggestive and the writing is on the wall. Ive always thought that a good lawyer isn’t one that necessarily spends all of his time helping you litigate but rather helps his clients avoid it so kudos here as this is more of a cautionary article as I see it and I appreciate that.
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No quarrels with anything you say, Alex! I counsel marketers on how to stay out of hot water–but still make money!
All I am saying is that FTC’s threat is not a new rule or policy, but simply something that must be entered into a marketer’s risk calculus, along with types of products and claims.
But treating it as you say is certainly the safest way to go, to avoid risk (and revenue).