Abstract:

 

In a Federal Trade Commission (FTC) decision concerning an energy-related claim for storm windows, the FTC ordered a manufacturer to cease and desist “Making any energy-related claim which uses the phrase "up to” or words of similar import, unless, (a) the maximum level of performance claimed can be achieved by an appreciable number of consumers under circumstances normally and expectably encountered by consumers and (b) the class of persons who can achieve the maximum level of performance claimed is disclosed.” In a 2012 settlement with windows marketers, the FTC stated that “up to” and similar claims must be supported by “competent and reliable scientific evidence . . . that all or almost all consumers are likely to achieve the maximum savings claimed.” Inherent in the idea behind an “up to” claim is that the product will perform differently under different conditions or that the consumer will experience different variants of the product.

 

For example, a cleaning device may be more or less effective depending on the surface on which it is used or a drain product may depend on water hardness that may vary from one area to another. The latter example exemplifies why “up to” claims can be problematic. If a consumer happens to live in a region where there is high calcium in the water supply, that consumer may never experience the maximum benefit claimed in an “up to” statement as the claim may have been substantiated only in areas where soft water is prevalent. The FTC would require that all or almost all consumers “can” experience or “are likely” to experience the maximum benefit. In this technical report we will explore the complexity of “up to” statements when used in the context of consumer product advertising claims.

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