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Avoid False Advertising Like Ford (alleged)

Have you ever actually calculated the MPG of your car? Is it just me or does it never seem to match that sticker on the window when you purchased it? Earlier this month, Richard Pitkin of Roseville, California felt the same way and actually took the next step of filing a lawsuit against Ford, accusing it of false advertising for possibly “inflating” the advertised MPG. Ford went as far as to call its C-Max Hybrid, “America’s most fuel efficient and affordable hybrid utility vehicle.”

Consumer Reports found the new C-Max and Fusion hybrids were around 20 percent short of MPG figures promised in marketing campaigns. Consumer Reports said the Fusion hybrid ended up producing a 39 MPG versus the 47 MPG advertised by Ford and the C-Max scored a 37 MPG versus the 47 MPG advertised. Just to bust the contention that MPG varies quite a bit depending on driving styles and conditions, Consumer Reports is usually within 2 miles of reported MPG  for other vehicles it tests.

From the complaint, “in advertisements and press releases, FORD stated that the C-MAX Hybrid ‘delivers EPA-certified 47 mpg city, highway and combined, up to 7 mpg better than the Prius v.’ and claimed that customers would pay less at the dealership and less at the pump for a C-MAX versus a Prius v.” Ford, trying to leverage its MPG is EPA-certified is in itself misleading to the uninformed consumer. According to FuelEconomy.org, the EPA reports MPG by having the manufacturers test their own vehicles—usually pre-production prototypes—and report the results to EPA. EPA reviews the results and confirms about 10-15 percent of them through their own tests at the National Vehicles and Fuel Emissions Laboratory. The EPA is reviewing Consumer Reports’ findings, but the complaint further complains that the EPA doesn’t even test the cars on the road but indoors in laboratory conditions, uses more efficient fuel, and does not properly replicate actual driving conditions.

Fine Print Matters

However, there is a relevant case here where an Internet service provider (ISP) was found to have not engaged in fraudulent or unfair business act or practice under California’s Unfair Competition Law, even though it stated that consumers would receive maximum internet speed of “up to” three megabits per second (Mbps) under its service, and customer’s actual internet speed was only 1.792 Mbps. It was the ISP’s qualifier of “up to” three megabits per that provided an explanation that each consumer’s maximum speed would vary.

EPA StickerIn the auto industry, the EPA requires disclosure stickers of the MPG for the vehicle that is usually displayed as a sticker on the window of the car. In the fine print of those stickers, you will find a disclaimer that states that “your mileage will vary.” This fine print is huge and may make the difference of liability for Ford.

Unfair Competition Law

California’s unfair competition law is pretty powerful and it’s one statute that covers false advertising. The law provides for injunctive relief, restitution, and disgorgement of profits for violations. California’s Unfair Competition Law , False Advertising Law, and Consumer Legal Remedies Act prohibit not only advertising which is false, but also advertising which, although true, is either misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.

 

Nasir Pasha, Esq.

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Managing attorney and co-host of podcast Legally Sound | Smart Business

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