Yet Another Take On Interpreting "Up To" Claims

We've written quite a bit on this blog about the difficulty of substantiating "up to" claims, in light of the fact that courts, regulators, and our advertising self-regulatory system seem to have pretty different views about what "up to" claims actually communicate to consumers. A recent decision from a federal court in New York, while interesting, doesn't help to clear up any of the confusion. If anything, the court may have actually come up with an entirely new way to think about "up to" claims.

Retail chain Big Lots sells large canisters of Fresh Finds coffee that it promotes as being able to make "up to 210" servings of coffee. A consumer sued, asserting false advertising and other claims under New York law. She alleged that when she followed the instructions on the package, she was unable to brew "anywhere close" to that amount of coffee. She claimed that, instead of 210 cups of coffee, she was only able to make 152 cups. She alleged that not only did she not