There was a lot of upheaval in the advertising community when the FTC announced its window settlements and published its consumer survey regarding takeaways of "up to" claims (see here, here, and here for our prior blogs on the topic). The FTC warned advertisers that it should test consumer understanding before using "up to" performance claims because, in its view, consumers believed such a claim promised the maximum stated performance was the result all or almost all consumers would experience. In speeches, NAD staff said without survey evidence in a specific context NAD did not intend to change the standard it had used for many years. This being the standard that the FTC had previously articulated that an "up to" claim should not be an outlier and a benefit that an appreciable number of consumers would enjoy.
And the NAD made good on this in a recent case brought by the Gillette Company challenging Energizer Personal Care Schick Hydro Silk Razors. We will not delve into the detailed discussion of substantiation for moisturization provided by shaving (but needless to say NAD has developed quite a body of precedent on the topic for those who are interested). The issue in this case was whether Energizer was able to substantiate its promise that its razor "moisturizes for up to two hours after shaving". In examining the evidence, the NAD said they would expect "that advertisers making "up to" claims should be able to demonstrate that a substantial percentage of consumers are likely to acheive maximim results promised under normal circumstances". The NAD found this claim supported by lab testing. Unfortunately NAD also found that the television ads depicting women engaged in activities like jump roping and playing volleyball where the rope or ball transforms into water splashing on their legs conveys a reasonable message that the moisturizing benefit lasts longer than two hours, a claim for which there was not support.
But this is good news for advertisers who have been concerned about a sea change in how "up to" claims are reviewed. The FTC has not brought additional cases and NAD is holding to prior precedent, at least when it needs to interpret claims without the benefit of sound surveys.