Fraud or not fraud, But what about Apple's iPhone battery time claims?

The whole Freeiphoneswap.com process (see part 1)
got me worrying and thinking about fraud. And, with frustrations about
the iPhone's battery common among bloggers and friends alike, you know
there is a lawsuit looming out there as some plaintiff-side law firm
will want to take Apple to task for allegedly misrepresenting the
iPhone's battery life (both the first generation and 3G). Whether these
would-be rentseekers have a claim a jury would buy will be seen.

But thinking about it, Apple says this about the iPhone's battery life:

Talk time: Up to 5 hours on 3G Up to 10 hours on 2G

Standby time: Up to 300 hours

Internet use: Up to 5 hours on 3G; Up to 6 hours on Wi-Fi

Video playback: Up to 7 hours

Audio playback: Up to 24 hours

All of this with a whole bunch of footnoted caveats about testing being
one pre-production models in May 2008 with this feature turned off,
that one turned on, and that fact that no animals were harmed. But did
they take into account all these 2.0 applications? The fact that people
would be using their iPhones to do a lot more than talk, surf the new
slowly, email or text? Probably not. All of these footnotes are
probably enough of a caveat, c-y-a claim for Apple to argue that they
never intended for anyone to rely on these estimates or that they made
a warranty about battery life, i.e., no fraud, false promise or
negligent misrepresentation, essentially, buyer beware. And with that,
it'd be hard to muster a claim of fraud. In any case, legal or
otherwise, Apple's claims about battery life didn't seem amount to very
much. Just in case, these are the elements of fraud in California:

The tort of deceit or fraud requires: (a) misrepresentation (false
representation, concealment, or nondisclosure); (b) knowledge of
falsity (or 'scienter'); (c) intent to defraud, i.e., to induce
reliance; (d) justifiable reliance; and (e) resulting damage. Engalla v. Permanente Medical Group, Inc., 15 Cal.4th 951, 974 (1997).

Apple has, however, put this page
up with tips and suggestions about extending battery time, is this all
they're going to do? Well, the jury's out on that one.