Ford Sued in PA 4/23/2013 - hybrid models don’t deliver on fuel-efficiency claims

[StoBro2]

The EPA has strict rules about advertising fuel economy numbers. Technically, advertising non-EPA fuel economy figures is permitted, with many restrictions. A manufacturer would have to be crazy to supplement the EPA figures with their own if their own are worse than the EPAs. A few years ago, Volkswagen considered publishing extra fuel economy figures for their TDI diesels because they thought the EPA figures were unrealistically low. I don't think they ever followed through with it.

 

 

§ 259.2 Advertising disclosures.

(a) No manufacturer or dealer shall make any express or implied representation in advertising concerning the fuel economy of any new automobile1 unless such representation is accompanied by the following clear and conspicuous disclosures: (1) If the advertisement makes:

1 The Commission will regard as an express or implied fuel economy representation one which a reasonable consumer, upon considering the representation in the context of the entire advertisement, would understand as referring to the fuel economy of the vehicle or vehicles advertised.

21(i) Representations about city, highway, and combined fuel economy, or any combination of the three, the advertisement must disclose the applicable estimated fuel economy information for each type of fuel economy represented in the advertisement;2 (ii) A representation regarding only city, only highway, or only combined fuel economy, the corresponding EPA fuel economy estimate must be disclosed;3

(iii) A general fuel economy claim without reference to any estimated fuel economy determined pursuant to EPA requirements, the estimated city fuel economy must be disclosed.4 (2) That the U.S. Environmental Protection Agency is the source of the estimated “city fuel economy,” “highway fuel economy,” and “combined fuel economy,” and that the numbers are estimates.5

(b) If an advertisement for a new automobile cites:

2 For purposes of §259.2(a), the “city fuel economy,” the “highway fuel economy,” and the “combined fuel economy” must be those applicable to the specific model type being advertised. Fuel economy estimates assigned to model types (see 40 CFR 600.208-08(a)(2)), should not be used for other vehicles in a car line that have different fuel economy ratings. For example, if a manufacturer has a model named the “XZA” that has fuel economy estimates assigned to it and a derivative model named the “Econo-XZA” that has separate, higher fuel economy estimates assigned to it, these higher numbers assigned to the “Econo-XZA” cannot be used in advertisements for the “XZA.”

3 For example, if the representation clearly refers only to highway fuel economy, only the “estimated highway fuel economy” need be disclosed.

4 Nothing in this section should be construed as prohibiting disclosure of both the city and highway estimates.

5 The Commission will regard the following as the minimum disclosure necessary to comply with §259.2(a)(2), regardless of the media in which the advertisement appears:

“EPA estimate(s).” For video, if the estimated mpg appears in the visual, the disclosure must appear visually; if the estimated mpg is audio, the disclosure must be audio.

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(1) The “expected range of fuel economy” or similar language, the advertisement must state with equal prominence both the upper and lower number of the range, an explanation of the meaning of the numbers (i.e., city fuel economy range or highway fuel economy range or combined fuel economy range or any combination of the three), and that the U.S. Environmental Protection Agency is the source of the figures.

(2) The “range of estimated fuel economy values for the class of new automobiles” or similar language as a basis for comparing the fuel economy of two or more automobiles, such comparison must be made to the same type of range (i.e., city, highway, or combined).6 © Fuel economy estimates derived from a non-EPA test may be disclosed provided that:

(1) The advertisement also discloses the “estimated city fuel economy,” the “estimated highway fuel economy,” and/or the “estimated combined fuel economy” as required by §259.2(a), and the disclosure required by §259.2(a), and gives the “estimated city fuel economy,” the “estimated highway fuel economy,” and/or the “estimated combined fuel economy” figure(s) substantially more prominence than any other estimate;7 provided, however, for any advertising medium in

6 For example, an advertisement could not promote a vehicle’s fuel economy by comparing the vehicle’s estimated highway fuel economy to the city estimates of other vehicles in its class.

7 For example, the Commission regards the following as constituting “substantially more prominence:”

For video: If the estimate derived from the non-EPA test appears in the visual portion, the estimated city, highway, and/or combined mpg should appear in numbers twice as large as those used for any other estimate, and remain on the screen at least as long as any other estimate. Alternatively, if the estimate derived from the non-EPA test appears in the visual portion, the estimated city, highway, and/or combined mpg should (1) appear simultaneously and with at least equal prominence as the other mileage estimate(s) in the visual portion, and (2) be stated in the audio portion. Each visual estimated city, highway, and/or combined mpg should be broadcast against a solid color background that contrasts easily with the color used for the numbers.

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(continued...)

which any other estimate is used in the audio, equal prominence must be given the “city fuel economy,” the “highway fuel economy,” and/or the “combined fuel economy” figure(s);8 (2) The source of the non-EPA test is clearly and conspicuously identified; (3) The driving conditions and variables simulated by the test which differ from those used to measure the “estimated city fuel economy,” the “estimated highway fuel economy,” and/or the “estimated combined fuel economy” and which result in a change in fuel economy, are clearly and conspicuously disclosed;9 and

(4) The advertisement clearly and conspicuously discloses any distinctions in “vehicle configuration” and other equipment affecting mileage performance (e.g., design or equipment differences which distinguish subconfigurations as defined by EPA) between the automobiles tested in the non-EPA test and the EPA tests.

7(...continued) For print: The estimated city, highway, and/or combined mpg should appear in clearly legible

type at least twice as large as that used for any other estimate or in type of the same size as such other estimate, if it is clearly legible and conspicuously circled. The estimated city, highway, and/or combined mpg should appear against a solid color, contrasting background. They should not appear in a footnote unless all references to fuel economy appear in a footnote.

8 For example, the Commission regards the following as constituting equal prominence: The estimated city, highway, and/or combined mpg should be stated, either before or after each disclosure of such other estimate at least as audibly as such other estimate.

9 For dynamometer tests any difference between the EPA and non-EPA tests must be disclosed. For in-use tests, the Commission realizes that it is impossible to duplicate the EPA test conditions, and that in-use tests may be designed to simulate a particular driving situation. It must be clear from the context of the advertisement what driving situation is being simulated (e.g., cold weather driving, highway driving, and heavy load conditions). Furthermore, any driving or vehicle condition must be disclosed if it is significantly different from that which an appreciable number of consumers (whose driving condition is being simulated) would expect to encounter.

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(d) If an advertisement contains an estimated cruising range for an alternative fueled vehicle that is not determined in accordance with FTC’s Labeling Requirements for Alternative Fuels and Alternative Fueled Vehicles (16 CFR Part 309), the advertisement must disclose clearly and conspicuously:

(1) The estimated cruising range required on the FTC label (16 CFR Part 309) with substantially more prominence than any other estimate; provided, however, for any advertising medium in which any other estimate is used only in the audio, equal prominence must be given the estimated cruising range that is required on the FTC label;10

(2) The source of the cruising range estimate; and (3) Any material differences between the method used and the method required by the FTC’s labeling requirements at 16 CFR § 309.22.

By direction of the Commission.

Donald S. Clark Secretary.

[shaners]

I am at 33.8 Lifetime MPG.  Pennsyvania driving.  Owned the car since November and with the warm weather the MPG's are climbing but will never get close to 47 MPG's.  There is a little over 4K miles on the car now...

[plus 3 golfer]

Correct about the EPA. Nowhere did I say Ford should not supply the EPA numbers although they can supply other numbers (see below).

 

The issue is disclosure in the commercials. If Ford knew the EPA numbers would be difficult to achieve, all Ford needed to do at the end of the clever commercials would be to put disclaimers that cold weather, increased speed and so forth can significantly reduce your fuel economy like their issued statement in late fall 2012 and as the EPA allows (see below), instead of the small, few second text at the bottom saying that your mileage may vary. Why did they do issue the statement? Likely because Ford was getting bad publicity from the numerous reviews of the C-Max that the EPA numbers would be difficult to achieve. There's no question in my mind that Ford used the EPA numbers to their advantage. The question is did such violate any laws.

For in-use tests, the Commission realizes that it is impossible to duplicate the EPA test conditions, and that in-use tests may be designed to simulate a particular driving situation. It must be clear from the context of the advertisement what driving situation is being simulated (e.g., cold weather driving, highway driving, and heavy load conditions). Furthermore, any driving or vehicle condition must be disclosed if it is significantly different from that which an appreciable number of consumers (whose driving condition is being simulated) would expect to encounter.

Edited April 29, 2013 by Plus 3 Golfer

[StoBro2]

Maybe the end result of all of this is that the EPA devises a new, more detailed disclaimer listing several reasons WHY "your mileage will vary" and require it to be used for all hybrids, plug-ins and other electrified vehicles.

[salsaguy]

Perhaps they need to recommend owners to reset lifetime data after the break in period. also wonder how many not in the know didnt reset their lifetime data after picking up their car from the dealer, as im sure many owners had miles on their new car due to inefficient test drivers using their car and early drives at factory and moving it around dealers lot.

 

also low sample size of data on fuelly.com and fueleconomy.gov for cmax owners vs prius owners is not a representable comparison

 

hope ford can figure out how not to lose momentum on this great car due to the sue happy freaks out there and work with epa and improve testing methods for hybrids like this new car, as it does seem much different and better than the prius in many ways.

Edited May 11, 2013 by salsaguy