The owner of a new 2013 Ford C-Max Hybrid has filed a consumer fraud class-action lawsuit against the Ford Motor Company, alleging Ford has engaged in a “false and misleading marketing campaign” for its 2013 C-Max Hybrid and Fusion Hybrid vehicles. The complaint alleges the cars “consistently achieve[] gas mileage far below the advertised mileage under normal real-world use.” The suit, filed in U.S. District Court in the Eastern District of California seeks a variety of damages, including reimbursement for the purchase price of Ford’s new hybrid vehicles, disgorgement of profits and punitive damages. See Pitkin Complaint. Richard Pitkin, the lead plaintiff in the lawsuit, asserts that Ford’s advertising claim that the C-Max achieves 47 miles per gallon (“mpg”) of gasoline was the primary reason he purchased his C-Max and that he reasonably believed the C-Max would actually achieve 47 mpg in real-world driving. However, according to the complaint, since purchasing the vehicle, Mr. Pitkin has averaged only 37 mpg. In seeking damages on behalf of himself and the putative class, he alleges that his experience was “not the exception, but rather the rule.”

C-Max Hybrid Fuel Efficiency Discrepancy

This lawsuit was filed one day after Consumer Reports reported that its tests show the fuel efficiency of Ford’s C-Max and Fusion Hybrids was significantly below the EPA fuel economy estimates reported on the autos’ window stickers. According to Consumer Reports, the C-Max Hybrid’s fuel economy was found to be 37 mpg overall, with 35 mpg for city driving and 38 mpg on highways. The report posted similar numbers for the Fusion Hybrid: 39 mpg in testing overall, with 35 mpg during city driving and 41 mpg on the highway. See “Tests show Ford Fusion, C-Max hybrids don’t live up to 47-mpg claims.” Since releasing its test results, Consumer Reports has posted a follow-up on its blog concerning the differences between its test procedures and test procedures the EPA employs. See “Why do Ford’s new hybrids ace the EPA fuel economy tests?” Consumer Reports suggests the discrepancy between the EPA estimates Ford reported and the results Consumer Reports found are linked to the way the Ford hybrids work. As hybrid vehicles, both the C-Max and the Fusion can travel in electric-only mode, without any consumption of gasoline. However, unlike other hybrids (e.g., the Toyota Prius) which operate in electric-only mode at relatively slow speeds (e.g., under 25 mph), both Fords are capable of traveling at a top speed of 62 mph in electric-only mode. Only at higher speeds do the cars’ gasoline engines start and help to recharge the cars’ batteries.

EPA Fuel Economy Requirements

The U.S. Environmental Protection Agency (EPA) requires that vehicle manufacturers must provide consumers with city and highway mpg estimates to help consumers compare the fuel economy of different vehicles when shopping for new cars. The EPA has enacted regulations that prescribe how manufactures must test their vehicles, and measure, calculate and report fuel economy information in regulations at 40 CFR Part 600 — Fuel Economy of Motor Vehicles. Under these regulations, EPA fuel economy estimates must be derived from laboratory testing of a representative vehicle (typically a pre-production prototype) under controlled conditions, using a standardized test procedure specified by federal law. Each new car and truck is tested on an indoor dynamometer, i.e., a set of rollers that turns the vehicle’s wheels while the car or truck sits in place. A test driver runs the vehicle through two standardized driving schedules, one each to simulate city and highway driving conditions.

  • The “city” cycle is designed to replicate an urban rush-hour driving experience in which the vehicle is started with the engine cold and is driven in stop-and-go traffic with frequent idling. The vehicle is driven for 11 miles and makes 23 stops over the course of 31 minutes, with an average speed of 20 mph and a top speed of 56 mph.
  • The “highway” cycle is designed to emulate rural and interstate freeway driving with a warm engine, making no stops. The vehicle is driven for 10 miles over a period of 12.5 minutes with an average speed of 48 mph and a top speed of 60 mph.

Both fuel economy tests are performed with the vehicle’s air conditioning and other accessories turned off. Notably, under both sets of conditions, Ford’s hybrids can operate in full-electric mode, without any gasoline consumption. In contrast, Consumer Reports investigators measured average fuel usage during actual highway driving at 65 mph. i.e., at a speed when the Ford’s hybrid gasoline engine is in operation. The EPA has stated that while its fuel efficiency ratings are intended to help consumers compare the fuel efficiency of vehicles in the same class, consumers should not rely on these estimates to provide an accurate projection of the actual gas mileage they will get for a particular vehicle. Nonetheless, a comparison of EPA estimates with other on-road fuel economy estimates often shows the measurements are closely correlated. Consequently, and as Consumer Reports has pointed out , the EPA may need to examine and make changes in its protocols “to address new challenges in predicting fuel-economy for emerging technologies.” The discrepancy between EPA and “real-life” fuel efficiency estimates poses a quandary for car manufacturers seeking to highlight fuel efficiency-improving technologies in their marketing campaigns, at time when fuel efficiency is a critical consideration among many new-car buyers. Notably, the lawsuit against Ford does not allege the company incorrectly performed the EPA tests or otherwise misrepresented the data, to derive the 47 mpg EPA fuel economy estimate. Instead, the complaint alleges Ford’s advertising scheme “misleadingly and unfairly uses the existing EPA mileage numbers to represent and imply that the miles-per-gallon EPA estimate reflects actual, expected mileage under normal real-world driving conditions.”

Preemption Argument

Because Ford has yet to file an answer to the lawsuit, it is not clear how the company will respond. The fact that federal law required Ford to post the EPA estimates might seem to provide a sympathetic preemption defense. However, other manufacturers who have asserted this defense have not succeeded. For example, in, True v. Am. Honda Motor Co., Inc., 520 F. Supp. 2d 1175 (C.D. Cal. 2007), the court refused to dismiss the plaintiff’s California state law claims based on allegations that Honda had made false and deceptive advertisements regarding the fuel efficiency and cost savings of its Honda Civic Hybrid automobile. Honda argued that the plaintiff’s state law claims were preempted by federal law, and specifically the EPA’s requirements that car manufacturers post the EPA-derived fuel economy estimates on the window stickers of its new cars. The court rejected this argument, finding, “[i]t would be an unreasonable assumption, however, that Congress intended to preempt states from regulating false or misleading advertising of a vehicle’s fuel efficiency and cost savings.” See 2007 Order Denying Defendant’s Motion to Dismiss. Sources: Richard Pitkin vs. Ford Motor Co., Case No. 2:12-cv-02973-KJM-DAD (E.D. Cal.); U.S. Environmental Protection Agency website; John True vs. American Honda Motor Co., Inc., Case No. EDCV 07-287-VAP (OPx) (C.D. Cal.); Code of Federal Regulations, Title 40: Protection of Environment, Part 600 – Fuel Economy and Greenhouse Gas Exhaust Emissions of Motor Vehicles (Jan. 4, 2013); Consumer Reports on-line.

This article was prepared by Kathy Grant (kgrant@fulbright.com / 210 270 7182) and Saul Perloff (sperloff@fulbright.com / 210 270 7166) of Fulbright’s False Advertising Practice.