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

Aaron Cole
by Aaron Cole
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actual mileage may vary could travel far for troubled automakers

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
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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.

  • 28-Cars-Later "But Assemblyman Phil Ting, the San Franciscan Democrat who wrote the electric school bus legislation, says this is all about the health and wellbeing of Golden State residents. In addition to the normal air pollution stemming from exhaust gasses, he believes children are being exposed to additional carcinogens by just being on a diesel bus."Phil is into real estate, he doesn't know jack sh!t about science or medicine and if media were real it would politely remind him his opinions are not qualified... if it were real. Another question if media were real is why is a very experienced real estate advisor and former tax assessor writing legislation on school busses? If you read the rest of his bio after 2014, his expertise seems to be applied but he gets into more and more things he's not qualified to speak to or legislate on - this isn't to say he isn't capable of doing more but just two years ago Communism™ kept reminding me Dr. Fauxi knew more about medicine than I did and I should die or something. So Uncle Phil just gets a pass with his unqualified opinions?Ting began his career as a real estate  financial adviser at  Arthur Andersen and  CBRE. He also previously served as the executive director of the  Asian Law Caucus, as the president of the Bay Area Assessors Association, and on the board of  Equality California. [url=https://en.wikipedia.org/wiki/Phil_Ting#cite_note-auto-1][1][/url][h3][/h3]In 2005, Ting was appointed San Francisco Assessor-Recorder in 2005 by Mayor  Gavin Newsom, becoming San Francisco’s highest-ranking  Chinese-American official at the time. He was then elected to the post in November 2005, garnering 58 percent of the vote.Ting was re-elected Assessor-Recorder in 2006 and 2010During his first term in the Assembly, Ting authored a law that helped set into motion the transformation of Piers 30-32 into what would become  Chase Center the home of the  Golden State Warriorshttps://en.wikipedia.org/wiki/Phil_Ting
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