On June 27, 2012 the Federal Trade Commission announced based upon an FTC-commissioned study indicating that when marketers use the phrase “up to” in claims about their products, that many consumers are likely to believe that they will achieve the maximum “up to” results.

In its public announcement the same day, the FTC has taken the position that advertisers using these claims should be able to substantiate that consumers are likely to achieve the maximum results promised under normal circumstances.

Is the FTC overreaching in requiring substantiation that consumers are likely to achieve maximum results where the advertisement does not in fact state or even imply that the maximum results are likely to be achieved?

It is yet to be seen as to whether the FTC will act upon its position regarding “up to” claims, and if it does, how the all-but-inevitable challenges that will ensue will fare.