'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.