---
title: NAD Considers “Up To” Qualifiers in Superiority Claims
date: 2025-06-29T10:00:00-04:00
author: Gonzalo Mon
canonical_url: "https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/nad-considers-up-to-qualifiers-in-superiority-claims"
section: Blog Posts
---
# NAD Considers ​“Up To” Qualifiers in Superiority Claims

  June 29, 2025

 

 

 

 

 

 

Coterie Baby advertises that its diapers provide ​“up to 4x more absorbency” and ​“up to 3x drier skin” compared to ​“leading brands.” P&G, the maker of Pampers – one of the two leading brands of diapers – challenged this claim (among others) before NAD. One of the key questions in the case is what evidence is necessary to support an ​“up to” superiority claim involving multiple competitors.

Coterie submitted tests to demonstrate that its diapers were four times faster at absorbing and three times drier when compared to Huggies – the second of the two leading brands – and certain others. Coterie’s tests generally did not, however, demonstrate those levels of superiority when compared to Pampers. Coterie argued that its claims were nevertheless supported because the ​“up to” qualifier communicates that its diapers won’t always meet those metrics.

NAD disagreed. It determined that consumers would likely understand the ​“up to” qualifier to mean that there will be some variability based on the usage conditions, including size, age, and activity level of the babies. However, NAD opined that ​“consumers would not expect an ​‘up to’ superiority claim over the leading diaper brands to mean that the claim was true for only one of the two leading diaper brands.”

NAD determined that ​“when a superiority claim over ​‘leading brands’ is supported for only half of the claimed brands, the addition of the phrase ​‘up to ​‘is not sufficient to prevent consumers from being misled.” A contrary decision ​“would open the door to advertisers being able to expand their superiority claims to any and all competing products even if they only have substantiation for a single competing product.”

There’s more to this case that may be of interest if you market diapers, but the guidance on ​“up to” claims involving multiple competitors is relevant across industries. As we’ve noted before, though, the standards for ​“up to” claims aren’t always clear. For example, last year, FTC Chairman Andrew Ferguson [commented](https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/ftc-settlement-illustrates-challenges-with-up-to-claims?utm_source=blog-update-email&utm_medium=email&utm_campaign=ad-law-access&utm_content=2024-07-30)that the Commission ​“appears to have articulated at least three inconsistent standards” for these claims. And [some courts](https://www.kelleydrye.com/viewpoints/blogs/ad-law-access/ninth-circuit-considers-the-meaning-of-an-up-to-claim) have differing views, so it pays to be cautious when making these types of claims.

 

 

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