A couple of years ago it felt like we were blogging about developments in cases involving “up to” claims up to 3x more often than just about any other topic. To summarize the upheaval, for many years there were cases allowing an up to claim if an “appreciable number” of consumers could enjoy the claimed maximum benefits. There are also state and local pricing laws requiring for sales claims that 10-15% of the sale goods be available at the highest advertised discount. Then the FTC brought cases involving savings claims for installing new windows, which included some rather sobering consumer research in which consumers appeared not to understand even relatively clear disclosures regarding “up to” claims. The cases settled with orders requiring that all or almost all of consumers be likely to achieve the maximum claimed savings. As a result the advertising legal community was thrown into a frenzy not knowing if the upper limit in an up to claim had to be something everyone could attain or 10% could attain or something in between. NAD largely stuck to its old standard, but in cases where the purchase required a significant investment seemed more aligned with the FTC’s view in the windows cases. But things seemed to settle down somewhat back to normal when the FTC did not follow with a flurry of new cases. 

A recent case from the NAD provides an interesting new twist. AT&T challenged advertising by T-Mobile inviting customers to “ditch and switch” their existing wireless carrier and T-Mobile will “pay off your phone when you trade it in,” and would “cover every penny of your old device payment plans.” There are lots of interesting issues in the case related to how clear you need to be with a customer when offering trade in allowances about what you will pay, how you will pay and when you will pay. But it was the “up to” portion we found really interesting. T-Mobile promised it would “pay off your phones and buy out your contracts, up to $650 per phone.” AT&T said the cap was inconsistent with the promise that T-Mobile would cover “every penny” as there could be situations when a customer seeking to switch owed more than $650. T-Mobile explained that there was not a $650 cap and that in all cases they would reimburse the customer who switched the full amount. They said they used the “up to” figure simply as an example to showcase how generous the offer was. It is difficult to see how it might be a consumer protection problem if an advertiser underpromises and overperforms. In this case overall NAD had concerns with how T-Mobile presented the offer overall and executed it. Specifically, the NAD was concerned some consumers might reasonably believe T-Mobile would pay off the debt to the prior carrier right away but instead T-Mobile reimbursed their new customer with a combination of a statement credit on the first T-Mobile bill and sending a prepaid debit card 8-10 weeks later. Perhaps there was some concern that consumers would not seek even the delayed reimbursement for an amount over $650. Before advertisers engage in Up To Panic II, if an enforcer were looking at this issue, they would certainly need to show consumer harm as part of their case.

In analyzing the claim, NAD noted that “up to” can have different meanings depending “on the context in which the claim appears and the product category to which it is being applied.” But NAD distinguished this case from where “up to” claims are “used to tout a product’s absolute best possible results or the savings a consumer might experience.” In this case NAD said consumers would likely understand “up to $650” as communicating a cap on a reimbursement amount and recommended T-Mobile discontinue this claim because there is no cap. T-Mobile is appealing this decision so we will have at least up to more opportunity to blog on this saga. But until then, counselors need to be aware that low balling the up to maximum value may not always be the obviously safe way to go. One should review the claim and consider if it could be misunderstood as providing a nonexistent or misleading cap where there could be potential consumer harm caused by such a misunderstanding.