It is very common for retailers and creditors to advertise that consumers will achieve savings of “up to” a certain amount if they purchase goods or obtain financing. It is also very common for creditors to advertise that consumers may obtain credit “up to” certain dollar amounts.
In late June, the Federal Trade Commission released a report titled "Effects of a Bristol Windows Advertisement with an 'Up To' Savings Claim on Consumer Take-Away and Beliefs," which should be carefully reviewed by retailers and sellers who are using “up to” in their advertising. The report concluded that when an advertisement promises savings "up to" a certain amount, many consumers are likely to believe that they will achieve the maximum "up to" results. According to the FTC, under Section 5 of the Federal Trade Commission Act (which proscribes unfair or deceptive acts or practices), "advertisers using [up to] claims should be able to substantiate that consumers are likely to achieve the maximum results promised under normal circumstances." The FTC did not explain what an advertiser must show in order to demonstrate that a consumer is "likely" to achieve the maximum result under normal circumstances.
The FTC's study was based on a limited number of consumer interviews. Only 360 consumers considering the purchase of replacement windows were interviewed in five different cities. All were paid for their interviews.
The FTC fails to take into account that the words "up to" are not long, technical, or difficult to understand. They mean what they say. Indeed, a number of court decisions have recognized that the use of the words "up to" is not misleading or deceptive. See, e.g., First Deposit Nat'l Bank v. Edwards, 1997 WL 360609 (Minn. App. 1997).
The decisions that have found advertisements using the phrase "up to" deceptive and/or misleading have tended to do so only after finding that the product could never meet the claim or that no consumer could qualify for the advertised savings. See, e.g., FTC v. Febre, 1996 U.S. Dist. LEXIS 9487 (N.D. Ill. July 3, 1996). Of course, the real issue in those cases is not the use of the phrase "up to" but the fact that the stated claims were simply untrue.
Nevertheless, creditors and companies using the phrase "up to" in their advertisements should be cautioned that unless they can demonstrate that a significant proportion of consumers receive the maximum benefit, they risk FTC enforcement action. It is also likely that the Consumer Financial Protection Bureau would take a similar position under Section 1031 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which proscribes unfair, deceptive, or abusive acts or practices.
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