'Actual Mileage May Vary' Could Travel Far For Troubled Automakers

Aaron Cole
by Aaron Cole

A court ruled Nov. 12 that a lawsuit may continue against Ford for misstating its mileage estimates of its C-MAX and Fusion hyrbid cars.

Ford attempted to dismiss the lawsuit based on its claim that the mileage estimates provided by the Environmental Protection Agency, were in part, an estimate and that “actual results may vary.” Car owners suing the automaker pointed to Ford’s media blitz that included Ryan Seacrest in Times Square with a bunch of billboards and T-shirts with the number 47 on them and “47 Challenges, 47 Days” marketing push and Facebook posts that the cars would achieve a “EPA-certified 47 mpg city and 47 mpg highway ratings for a 47-mpg combined rating” — among many other 47-branded things — when the cars didn’t come anywhere close.*

*Actual mileage did vary.

“Ford implicitly recognized that its advertising campaign was misleading,” U.S. District Judge Kenneth M. Karas wrote in the ruling.

In their claims, car buyers who bought Ford Fusion and C-MAX hybrids wrote that the automaker’s aggressive marketing claim that the cars could achieve 47 mpg combined was intentionally misleading. The fact that they were selling their cars based exclusively on their mileage estimates didn’t help much.

“Ford’s advertisements intentionally used these false and misleading statements to demonstrate that the fuel economy of the Vehicles was superior to other hybrid vehicles in the market, such as the Prius and Camry,” lawyers wrote for the vehicle owners.

In its motion to dismiss, Ford argued that the EPA estimates were presented as estimates (OK, maybe the Facebook post is a little incriminating) and that actual results may vary, so what’s the big deal guys?

“’Your actual mileage will vary’ … is why the fuel economy figures transmitted to consumers are estimates, not guarantees, promises, legally binding offers, or warranties,” lawyers for Ford wrote in their argument.

Judges mostly rejected that claim.

The lawsuit could have reach well beyond the C-MAX and Fusion hybrids that most certainly did not achieve their mileage claims. (In 2014, Ford revised its mileage claims for those cars and mailed checks to owners to account for fuel economy discrepancies. Hyundai did the same thing for their cars.)

Despite the lawsuit, what automakers can and can’t say to sell cars is fairly opaque. According to court documents, automakers aren’t explicitly required to tell car shoppers that their “actual mileage may vary” in certain circumstances.

The EPA requires that automakers present the agency’s fuel economy estimates on window stickers, with a mandated disclosure that actual results could vary depending on how the car is driven.

But the Federal Trade Commission, which has jurisdiction over many advertising practices in the U.S., does not require a disclaimer in advertising (but, of course, outright lying isn’t a good idea), which is what Ford claimed in its motion. By including the disclaimer, the automaker should be absolved of any allegations of lying, lawyers for Ford wrote.

The ruling could reach well into Volkswagen’s pockets in their upcoming barrage of civil lawsuits regarding what constitutes “clean diesel.”

Civil lawsuits against Volkswagen claim, among other things, that Volkswagen’s claim that it was “clean” could massively backfire if courts decide that selling those cars based on their environmental impact could constitute a promise by the automaker.

In Ford’s case — at least initially — despite including a disclaimer in its advertising, the automaker may be liable for a fuel economy promise it never delivered.

Aaron Cole
Aaron Cole

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  • Jimmyy Jimmyy on Nov 24, 2015

    Funny comments. I had two different Camry Hybrids, one a 2012, and the other 2015, and both were very close to the EPA number, which was around 40 combined. Makes me wonder what kind of garbage is Ford trying to pull with their hybrid vehicles.

  • Jthorner Jthorner on Nov 24, 2015

    The source of these errors/cheats by Ford was well documented several years ago. First of all, Ford actually tested a Fusion Hybrid and then claimed (as legally allowed) that a CMAX would perform the same because it had the same power-train and about the same vehicle weight (aerodynamics are apparently ignored ???). The second mistake was that the number they fed into the rolling road computer to account for real world wind resistance, rolling resistance, etc. was simply wrong. All of this was reported on year ago. For example: http://www.autoblog.com/2014/06/17/ford-made-three-big-mistakes-mpg-for-2013-c-max-hybrid/ Now the consumer lawsuits are finally making their way through the courts as attorneys and owners reasonably argue that they were fraudulently sold 47 mpg Prius-V beaters. In the real world, the CMAX never bests the fuel economy of a Prius-V under the same conditions. Ford surely had to know this as I'm sure somebody there did some actual drive around and see how much fuel we used then divide that by the miles checking like normal people do. Today Ford advertises the CMAX as getting 42 mpg city and 37 highway. That is a far cry from the 47/47 numbers they initially advertised. Consumer Reports' independent test yielded 37 mpg overall. Ford initially intentionally misled customers and is trying to hide behind their manner of gaming the EPA test regimen. Very VWesque.

  • Joe This is called a man in the middle attack and has been around for years. You can fall for this in a Starbucks as easily as when you’re charging your car. Nothing new here…
  • AZFelix Hilux technical, preferably with a swivel mount.
  • ToolGuy This is the kind of thing you get when you give people faster internet.
  • ToolGuy North America is already the greatest country on the planet, and I have learned to be careful about what I wish for in terms of making changes. I mean, if Greenland wants to buy JDM vehicles, isn't that for the Danes to decide?
  • ToolGuy Once again my home did not catch on fire and my fire extinguisher(s) stayed in the closet, unused. I guess I threw my money away on fire extinguishers.(And by fire extinguishers I mean nuclear missiles.)
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