FTC Study: Consumers Disregard “Up To” Language in Advertising Claims

The FTC  has released a study finding that many consumers interpret advertising claims containing the phrase “up to” (as in “save up to 50%” to mean that they almost certainly will achieve the specified maximum results. The study compared consumers’ perception of advertisements for new windows that all contained savings claims. Each of the three ads 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 referenced a disclosure stating “The average Bristol Windows owner saves about 25% on heating and cooling bills.”

When asked how they interpreted the claims made in the advertisements, 36% to 45% of consumers who viewed the ad containing the “Proven to Save Up to 47% on Your Heating and Cooling Bills!” claim believed that it stated or implied savings of 47%.  

The researchers concluded that the consumers in the study did not distinguish between ads that included the “up to” language with ads that did not.  Therefore, average consumers are likely to believe that they can achieve the maximum savings referenced any “up to” claim. 

Properly conducted research produces a fairly wide range of potential results.  Researchers typically apply formulae to determine average results under a range of circumstances  Advertisers that conduct their own studies naturally reference  the maximum result achieved, regardless of whether it was statistically significant.

The FTC has long held the 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, and the results of this study reinforces that view.  Thus, if an advertiser surveys 1,000 consumers, and determine that one very lucky person saved 50%, while the rest save an average of 20%, the 50% savings is clearly a fluke or an error, and an advertiser should not even bother referencing it at all.  

 




Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.

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