Businesses could do this with whole stores, and have. You may have seen ads say things like "Everything on Sale! Up to 50% off!" A trip to the store is a sobering reality when you find only a few unpopular trinkets on sale for 50% off and everything else at nearly full price. The store owner may think he's terribly clever for discovering this linguistic loophole. However he's in for sobering reality when he finds out that even though everything in the advertisement is technically true, it's still deceptive and can he can be indicted for false advertising.
The Federal Trade Commission states that "up to" claims should not rely on "outliers" and the Missouri Advertising Rules state that advertisers must clearly indicate which products are on sale. Both agencies agree that even if a statement is literally true, it may nonetheless be deceptive its overall effect is misleading.
The BBB has kept tabs on "Up To" claims since the early 1920s. In our Nov 5, 1923 newsletter, the Kansas City Better Business Bureau released a statement in accordance with the Associated Retail Advertisers policy on "up to" claims, introducing a policy which we still hold today.
The Bureau recommends that this phrase not be used unless the minimum former price or value included in the lot on sale be given as well as the highest price. Where articles of several different former prices are included in a sale, at least 10% of the total quantity on sale should be off the highest former price mentioned in the advertisement.If you are a business advertising an upcoming sale, keep these guidelines in mind. If you are a consumer who sees the phrase "up to" claims and no other details, be wary about soliciting that company's business.