The Federal Trade Commission (FTC) has released a study finding that many consumers interpret advertising claims containing the phrase “up to” to mean that they will achieve the specified maximum results. The full study can be downloaded to the right of this article. The FTC-commissioned study compared consumers’ perception of advertisements for new windows that all contained savings claims. Each of the three advertisements contained one of the following claims:

• “Proven to Save Up to 47% on Your Heating and Cooling Bills!”
• “Proven to Save 47% on Your Heating and Cooling Bills!”
• “Proven to Save Up to 47%* on Your Heating and Cooling Bills!” The asterisk pointed to a disclosure stating “The average Bristol Windows owner saves about 25% on heating and cooling bills.”

The study asked consumers a number of questions related to their interpretation of the advertisements. The study found that between 36 percent and 45.6 percent of consumers who viewed the advertisement containing the “Proven to Save Up to 47% on Your Heating and Cooling Bills!” claim believed that the advertisement stated or implied savings of 47 percent on heating and cooling bills. These individuals did not mention the “up to” portion of the claim in their responses.

Consumers who viewed the advertisement without the “up to” language had similar interpretations of their advertisements. The researchers concluded that the inclusion of the “up to” language did not counteract consumers’ interpretation of the claims. In other words, a significant number of consumers interpret claims with the “up to” language the same way that they interpret an identical advertisement that lacks the “up to” language. Therefore, these consumers are likely to believe that they can achieve the maximum savings highlighted within the advertisement. The FTC has stated that this study reinforces its view that advertisers making “up to” claims should be able to substantiate that consumers are likely to achieve the maximum results promised under normal circumstances.

Arent Fox is monitoring developments at the FTC and encourages all advertisers making claims involving “up to” qualifiers to seek legal counsel prior to making the claims. Please contact Sarah Bruno or Matthew Mills with questions.