Substantiation For “Up To” FTC Earnings Claims?

In a 2024 FTC Earnings Claims Enforcement Action, FTC Chair, Lina Khan, Stated the Requirement for Substantiation of “Up To” FTC Earnings Claims

FTC v. Arise Virtual Solutions

Arise recruited participants to provide customer support services to Arise’s corporate customers.

Participants would work remotely to provide customer support via Arise’s online platform.

Arise’s earnings claims were “up to” claims: “Register today – Arise Work From Home – Up To $18/Hour.” ?

Applying the New FTC Earnings Claims Framework

? ??*??$18/hour is a typicality claim;

? ??*? Meaning that Arise should substantiate that $18/hour is the typical result for participants, or demonstrate/disclose what is typical via a “generally expected results” disclosure.

Arise Failed to Satisfy Both Requirements

? ??*? Arise’s records showed that the average earnings were only $12/hour.

??? *? Arise failed to provide a “generally expected results” disclosure.

Statement by Lina Khan, FTC Chairperson

Lina Kahn’s statement was directed to the net impression of an “up-to” earnings claim based on prior FTC cases.

“Claims that individuals could earn ‘up to’ a certain amount might lead them to ‘reasonable believe’ that the statements of earnings potential represent typical? or average earnings’ …” (emphasis added).

Conclusion

Contrary to Khan’s statement, prior cases (overall) indicate that there have been different tests for the net impression of “up-to” claims from time to time.

Two examples of net impression from prior cases are:

? ??*? “Appreciable number” (noticeable and non-negligible), and

??? *? “All or almost all.”

Nevertheless, the current FTC position on the net impression of “up to” FTC earnings claims (according to FTC Chair, Lina Khan) is that “typical results” means “average results.”

For Informational purposes only; not legal advice

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