On June 14, 2024, the Ninth Circuit dismissed a class action lawsuit against Energizer Brands LLC over their claim that its AA Max batteries last "up to 50% longer" than basic alkaline batteries in demanding devices. Plaintiffs argued that Energizer's packaging, which prominently displayed "up to 50% longer lasting" in large bold font, was deceptive, and claimed that the accompanying disclaimer—"than basic alkaline in demanding devices"—was presented in much smaller print, likely to be overlooked by consumers in violation of California’s consumer protection laws.

Key to the court's decision was the interpretation of the phrase "up to." Plaintiffs argued that the phrase could mislead consumers into believing that Energizer’s batteries would consistently last 50% longer than competing products in all applications. The court disagreed, finding that "up to" is a phrase commonly understood to denote a maximum limit rather than a guaranteed outcome, and one that indicates the highest possible performance under certain conditions, not an average or standard performance. The dictionary definitions of "up to," "basic," and "demanding" were cited to illustrate that these terms are not technical or difficult for an average consumer to understand. The court underscored the importance of the overall context in which the claim was presented. The qualifiers—though smaller in font—were immediately adjacent to the "50% longer lasting" claim and sufficiently clear to inform consumers that the performance was compared to basic alkaline batteries in demanding devices.

As we've posted about previously, “up to” claims have a storied history. The FTC and the NAD have different standards when it comes to “up to” claims (with the FTC having taken the position that consumers should be "likely to achieve the maximum results promised under normal circumstances” and the NAD considering "whether an appreciable number of consumers actually achieve the top range of the claimed benefit under circumstances normally and expectably encountered by consumers"). 

The Energizer decision underscores that, while “up to” claims can highlight potential maximum performance, clearly contextualizing the claim is helpful to avoid misleading consumers. 

The case is DARREN MILLAM; DONALD SPRINKEL, individually & on behalf of all others situated, Plaintiffs-Appellants, v. ENERGIZER BRANDS, LLC; ENERGIZER HOLDINGS, INC., Defendants-Appellees., No. 23-55192, 2024 WL 2988210 (9th Cir. June 14, 2024).