The Federal Trade Commission (“FTC”) recently released the results of a mall-intercept study that sought to investigate how consumers interpret certain “up to” claims. A little context is necessary to understand what this study means. The FTC commissioned the mall-intercept study as a part of an “industry sweep” that targeted advertising for replacement windows.
Many of the ads challenged in the course of the sweep included “guarantees” or “pledges” that consumers would realize certain amounts – or “up to” certain amounts – of savings in their energy bills by replacing old windows. Against this background, the FTC’s study tested only “up to” claims for replacement windows and only “up to” claims that appeared alongside a “proven” claim. Interviewers stopped several hundred individuals in five shopping malls across the country. Those individuals who agreed to participate were shown one of three versions of a replacement windows ad. Each version contained one of the following claims:
- “Proven to Save 47% on Your Heating and Cooling Bills”;
- “Proven to Save Up to 47% on Your Heating and Cooling Bills”; or
- “Proven to Save Up To 47%* on Your Heating and Cooling Bills” with the disclosure, “*The average Bristol Windows owner saves about 25% on heating and cooling bills.”
The study found that, regardless of the claim viewed, about a third to half of the respondents in each group believed that the ad stated or implied typical savings of about 47 percent. This finding appears to have served as at least part of the basis for new language that the FTC has included recently in several orders against replacement window advertisers. As discussed in an earlier post, several settlement orders have diverged from past FTC orders on “up to” claims and required the named parties to possess evidence that “all or almost all consumers” are likely to receive the maximum “up to” benefits claimed. Most past orders required evidence only that “an appreciable number of consumers” could realize the maximum benefits. We noted in our prior post that the “all or almost all” standard could, in effect, become the law for everyone, but that for now, the standard applies only to the parties named in the orders.
Like the FTC’s new order language, the FTC’s new study sends a cautionary message. The new study does not mean that every – or even most – iterations of “up to” claims will convey that all or almost all consumers will achieve the maximum results claimed. The study did not test, for instance,
- “up to” claims presented without “proven” or similar language;
- “up to” claims presented with disclosures regarding the number or percentage of consumers who can expect to achieve the maximum results; or
- “up to” claims for products other than replacement windows.
Nevertheless, knowing that the FTC is scrutinizing what type of typicality “up to” claims might convey, advertisers should proceed with caution. Claims and disclosures will need to be crafted carefully to avoid conveying that all users will reach the maximum “up to” results.