In 1975, the U.S. Federal Trade Commission (“FTC”) adopted the Fuel Economy Guide (the “Guide”) to provide guidance on how to avoid making unfair and deceptive fuel economy claims in automobile advertising. In an effort to keep pace with developments in automotive technology, the FTC recently approved amendments to the Guide following a period of public comment. The amendments address fuel economy claims as applied to alternative fueled vehicles (such as electric and flex-fueled automobiles) and synchronize the Guide to be consistent with current Environmental Protection Agency (EPA) fuel economy labeling rules. In addition, following the format of the FTC’s other guides, the updated Guide now includes a set of general principles and illustrative examples for greater clarity. The updated Guide became effective on October 15, 2017.
Here is a summary of key points from the updated Guide:
- General Principles. As always, it’s deceptive to misrepresent the fuel economy or driving range of an automobile. The Guide also emphasizes that any disclosures must be clear and prominent, placed in close proximity to the qualified claim and stated in plain language of sufficiently large type, without inconsistencies or distracting elements. The FTC also advises that all disclosures should be in the same format as the claim (e.g., if a television ad features a fuel economy claim in the audio format, the disclosure should also be in audio).
- Unqualified Fuel Economy Claims. Because general, unqualified fuel economy claims can be misleading, you should always disclose established EPA fuel economy estimates if you’re making a fuel economy or “efficiency” claim.
- The Estimate and the Claim Should Match. As was true before, if you cite an EPA fuel economy estimate, it should match the type of MPG mentioned in your claim, and the mode of driving appearing in the advertisement. For instance, if an ad makes a city fuel economy claim or shows city driving, it should disclose the city EPA estimated rating. If the ads makes both a city and a highway fuel economy claim or shows both kinds of driving, the ad should disclose both the EPA estimated city and highway ratings. If the ad makes a general fuel economy claim - without specifically referencing or showing city or highway driving - it should disclose the EPA combined fuel economy estimate, or, alternatively, both the EPA city and highway fuel economy estimates.
- Identify Fuel Economy and Driving Range Ratings as Estimates. Ads should make clear that an EPA rating is an “estimate” rather than a guarantee, since actual mileage or range can vary because of driving conditions, driving habits, vehicle maintenance and other factors. The language, “EPA estimate(s),” or equivalent, is sufficient.
- Disclose the EPA as your Source. Advertisers citing EPA fuel economy or driving range figures should identify the EPA as the source of the test, so that consumers understand that the estimate is comparable to EPA estimates for competing models. Stating “EPA estimate(s),” or equivalent language is fine.
- Specify City, Highway or Combined. If an ad cites an EPA fuel economy estimate, it should identify the particular type of driving associated with the estimate (i.e., estimated city, highway or combined MPG). Consumers might otherwise incorrectly assume the disclosure applies to a specific type of driving, such as combined or highway, which may not be the driving type the advertiser intended, and that might mean that consumers think the model’s fuel economy rating is higher than it actually is.
- Comparing Different Model Types. Fuel economy claims cited in an ad should apply to the model type depicted in the ad.
- Within Vehicle Class Comparisons. Any comparative fuel economy claims should specify the class of vehicles against which the advertised vehicle is being compared. Otherwise, consumers are likely to assume the comparison is relative to all new automobiles.
- Up To Claims. Advertisers should qualify an “up to” claim by clearly and prominently disclosing if the stated MPG applies to a particular vehicle model type.
- Range Claims. An ad making any general driving range claims should disclose the EPA driving range estimate for that vehicle.
- Alternative Fueled Vehicles. Ads featuring fuel economy claims for flexible-fueled vehicles (i.e., a motor vehicle (or motor vehicle engine) engineered and designed to be operated on any mixture of two or more different fuels) should clearly and prominently disclose the type of fuel used. For instance, an ad for a flex-fueled vehicle should specify whether the cited estimate refers to gas or alternative fuel operation or else cite ratings for both fuel types. Without that, consumers are likely to think that the estimate applies to both gas and alternative fuel operation. Note however that this rule does not apply to plug-in hybrid electric vehicles.
- Non-EPA Tests. Advertisers should avoid non-EPA claims and disclose the EPA fuel economy or driving range estimates where possible. However, if an ad includes a claim about a vehicle’s fuel economy or driving range based on a non-EPA estimate, advertisers should disclose the EPA estimate and disclose with substantially more prominence than the non-EPA estimate: (i) that the fuel economy or driving range information is based on a non-EPA test; (ii) the source of the non-EPA test; (iii) the EPA fuel economy estimates or EPA driving range estimates for the vehicle; and (iv) all driving conditions or vehicle configurations simulated by the non-EPA test that are different from those used in the EPA test (e.g. road or dynamometer test, average speed, range of speed, hot or cold start, temperature, and design or equipment differences).
- “Substantially more prominent” means:
- For visual disclosures, that the text is twice as large and remains on the screen at least as long as any other estimate, and that each EPA figure is be broadcast against a solid color background that contrasts easily with the color used for the numbers when viewed on both color and black and white television.
- For audio disclosures, it means that the EPA estimated city and/or highway MPG should be stated, either before or after each disclosure of such other estimate, at least as audibly as such other estimate.
- For print and Internet disclosures, it means that disclosures have to be in clearly legible type, at least twice as large as that used for any other estimate, the EPA figures should appear against a solid color and contrasting background, and the disclosures may not appear in a footnote unless all references to fuel economy appear in a footnote.