Guide Concerning Fuel Economy Advertising for New Automobiles, 43682-43690 [2017-19869]
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43682
Federal Register / Vol. 82, No. 180 / Tuesday, September 19, 2017 / Rules and Regulations
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applicable checks, tests, and verifications
thereafter at intervals not to exceed 12
months until the terminating action specified
in paragraph (j) of this AD is done. Operators
are not required to get replacement batteries
from Ameri-King Corporation.
(h) Additional Corrective Actions
(1) If, during any action required by
paragraph (g) of this AD, any ELT fails the
functional test specified in step 6., the
verification specified in step 7., or the
activation check specified in step 8., of
section 3.4, ‘‘Periodic Maintenance,’’ of
Ameri-King Corporation Document IM–450,
‘‘INSTALLATION & OPERATION
MANUAL,’’ Revision A, dated October 18,
1995, do the actions specified in paragraph
(h)(1)(i) or (h)(1)(ii) of this AD.
(i) Replace the affected Model AK–450–( )
ELT with a serviceable FAA-approved ELT as
specified in paragraph (i) of this AD
(‘‘Definition of Serviceable FAA-approved
ELT’’), following 14 CFR 91.207(a), 14 CFR
91.207(f), and 14 CFR 135.168, as applicable,
and other applicable operating rules.
(ii) Repair the ELT using approved
maintenance practices and following 14 CFR
91.207(a), 14 CFR 91.207(f), and 14 CFR
135.168, as applicable, and other applicable
operating rules.
(2) If, during any action required by
paragraph (g) of this AD, any ELT fails any
of the actions specified in paragraphs (h)(2)(i)
through (h)(2)(v) of this AD: Replace the
affected Model AK–451–( ) ELT with a
serviceable FAA-approved ELT as specified
in paragraph (i) of this AD (‘‘Definition of
Serviceable FAA-approved ELT’’), following
14 CFR 91.207(a), 14 CFR 91.207(f), and 14
CFR 135.168, as applicable, and other
applicable operating rules; or repair the ELT
using approved maintenance practices and
following 14 CFR 91.207(a), 14 CFR 91.207(f),
and 14 CFR 135.168, as applicable, and other
applicable operating rules.
(i) The operational test specified in step
3.4.6 of section 3.4, ‘‘Periodic Maintenance
(Instructions for Continued Airworthiness),’’
of Ameri-King Corporation Document IM–
451, ‘‘INSTALLATION AND OPERATION
MANUAL,’’ Revision NC–4.1h, dated July 5,
2014.
(ii) Any check specified in step 3.4.7 of
section 3.4, ‘‘Periodic Maintenance
(Instructions for Continued Airworthiness),’’
of Ameri-King Corporation Document IM–
451, ‘‘INSTALLATION AND OPERATION
MANUAL,’’ Revision NC–4.1h, dated July 5,
2014.
(iii) The digital message verification
specified in step 3.4.8 of section 3.4,
‘‘Periodic Maintenance (Instructions for
Continued Airworthiness),’’ of Ameri-King
Corporation Document IM–451,
‘‘INSTALLATION AND OPERATION
MANUAL,’’ Revision NC–4.1h, dated July 5,
2014.
(iv) The registration verification specified
in step 3.4.9 of section 3.4, ‘‘Periodic
Maintenance (Instructions for Continued
Airworthiness),’’ of Ameri-King Corporation
Document IM–451, ‘‘INSTALLATION AND
OPERATION MANUAL,’’ Revision NC–4.1h,
dated July 5, 2014.
(v) The verification of the ELT and global
positioning system (GPS) interface specified
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16:10 Sep 18, 2017
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in step 3.4.10 of section 3.4, ‘‘Periodic
Maintenance (Instructions for Continued
Airworthiness),’’ of Ameri-King Corporation
Document IM–451, ‘‘INSTALLATION AND
OPERATION MANUAL,’’ Revision NC–4.1h,
dated July 5, 2014.
(3) If, during any action required by
paragraph (g) of this AD, any of the
discrepancies specified in paragraphs
(h)(3)(i) through (h)(3)(vi) of this AD are
found, repair all discrepancies using
approved maintenance practices and
following 14 CFR 91.207(a), 14 CFR 91.207(f),
and 14 CFR 135.168, as applicable, and other
applicable operating rules.
(i) Any unsecured fastener or mechanical
assembly.
(ii) Any cuts or abrasions on the coaxial
cable outer jacket.
(iii) Any corrosion on the ‘‘BNC’’
connectors and mating plug on the antenna
and the ELT main unit.
(iv) Any wear or abrasion on the modular
cable outer jacket.
(v) Any corrosion on the jack and plug of
the modular connecting cable.
(vi) Any corrosion on the battery
compartment.
(i) Definition of Serviceable FAA-Approved
ELT
For the purposes of this AD, a serviceable
FAA-approved ELT is any FAA-approved
ELT other than a Model AK–450–( ) and AK–
451–( ) series ELT produced by Ameri-King
Corporation.
(j) Optional Terminating Action
Doing the applicable action specified in
paragraph (j)(1) or (j)(2) of this AD terminates
the actions required by paragraphs (g) and (h)
of this AD.
(1) For aircraft required by operating
regulations to be equipped with an ELT:
Replace the ELT with a serviceable FAAapproved ELT as specified in paragraph (i) of
this AD (‘‘Definition of Serviceable FAAapproved ELT’’).
(2) For aircraft not required by operating
regulations to be equipped with an ELT:
Replace the ELT with a serviceable FAAapproved ELT as specified in paragraph (i) of
this AD (‘‘Definition of Serviceable FAAapproved ELT’’). The ELT may be removed
as an alternative to the ELT replacement; if
an ELT is re-installed, it must be a
serviceable ELT as specified in paragraph (i)
of this AD (‘‘Definition of Serviceable FAAapproved ELT’’).
(k) Alternative Methods of Compliance
(AMOCs)
(1) The Manager, Los Angeles Aircraft
Certification Office, FAA, has the authority to
approve AMOCs for this AD, if requested
using the procedures found in 14 CFR 39.19.
In accordance with 14 CFR 39.19, send your
request to your principal inspector or local
Flight Standards District Office, as
appropriate. If sending information directly
to the manager of the ACO, send it to the
attention of the person identified in
paragraph (l) of this AD.
(2) Before using any approved AMOC,
notify your appropriate principal inspector,
or lacking a principal inspector, the manager
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of the local flight standards district office/
certificate holding district office.
(l) Related Information
For more information about this AD,
contact Gilbert Ceballos, Aerospace Engineer,
Systems and Equipment Branch, ANM–130L,
FAA, Los Angeles Aircraft Certification
Office (ACO), 3960 Paramount Boulevard,
Lakewood, CA 90712–4137; phone: 562–627–
5372; fax: 562–627–5210; email:
gilbert.ceballos@faa.gov.
(m) Material Incorporated by Reference
(1) The Director of the Federal Register
approved the incorporation by reference
(IBR) of the service information listed in this
paragraph under 5 U.S.C. 552(a) and 1 CFR
part 51.
(2) You must use this service information
as applicable to do the actions required by
this AD, unless the AD specifies otherwise.
(i) Section 3.4, ‘‘Periodic Maintenance,’’
Ameri-King Corporation Document IM–450,
‘‘INSTALLATION & OPERATION
MANUAL,’’ Revision A, dated October 18,
1995.
(ii) Section 3.4, ‘‘Periodic Maintenance
(Instructions for Continued Airworthiness),’’
Ameri-King Corporation Document IM–451,
‘‘INSTALLATION AND OPERATION
MANUAL,’’ Revision NC–4.1h, dated July 5,
2014.
(3) For service information identified in
this AD, contact Gilbert Ceballos, Aerospace
Engineer, Systems and Equipment Branch,
ANM–130L, FAA, Los Angeles Aircraft
Certification Office (ACO), 3960 Paramount
Boulevard, Lakewood, CA 90712–4137;
phone: 562–627–5372; fax: 562–627–5210;
email: gilbert.ceballos@faa.gov.
(4) You may view this service information
at the FAA, Transport Airplane Directorate,
1601 Lind Avenue SW., Renton, WA. For
information on the availability of this
material at the FAA, call 425–227–1221.
(5) You may view this service information
that is incorporated by reference at the
National Archives and Records
Administration (NARA). For information on
the availability of this material at NARA, call
202–741–6030, or go to: https://
www.archives.gov/federal-register/cfr/ibrlocations.html.
Issued in Renton, Washington, on July 19,
2017.
Michael Kaszycki,
Acting Manager, Transport Airplane
Directorate, Aircraft Certification Service.
[FR Doc. 2017–16048 Filed 9–18–17; 8:45 am]
BILLING CODE 4910–13–P
FEDERAL TRADE COMMISSION
16 CFR Part 259
Guide Concerning Fuel Economy
Advertising for New Automobiles
Federal Trade Commission.
Final rule; adoption of revised
AGENCY:
ACTION:
guides.
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Federal Register / Vol. 82, No. 180 / Tuesday, September 19, 2017 / Rules and Regulations
The Federal Trade
Commission (‘‘FTC’’ or ‘‘Commission’’)
issues final amendments to the Guide
Concerning Fuel Economy Advertising
for New Automobiles (‘‘Fuel Economy
Guide’’ or ‘‘Guide’’) to address
advertising claims prevalent in the
market and harmonize with current
Environmental Protection Agency
(‘‘EPA’’) and National Highway Traffic
Safety Administration (‘‘NHTSA’’) fuel
economy labeling rules.
DATES: Effective October 19, 2017.
FOR FURTHER INFORMATION CONTACT:
Hampton Newsome, (202) 326–2889,
Attorney, Division of Enforcement,
Bureau of Consumer Protection, Federal
Trade Commission, Room C–9528, 600
Pennsylvania Avenue NW., Washington,
DC 20580.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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I. Background
In 1975, the Commission issued the
Fuel Economy Guide (16 CFR part 259)
(40 FR 42003 (Sep. 10, 1975)) to prevent
deceptive fuel economy advertising for
new automobiles and facilitate the use
of fuel efficiency information in
advertising. To accomplish these goals,
the Guide advises advertisers to disclose
established EPA fuel economy estimates
(e.g., miles per gallon or ‘‘MPG’’)
whenever they make any fuel economy
claim based on those estimates. In
addition, if advertisers make claims
based on non-EPA tests, the Guide
advises them to disclose EPA-derived
information and provide details about
the non-EPA tests, such as the test’s
source, driving conditions, and vehicle
configurations.
The Guide helps advertisers avoid
deceptive or unfair fuel economy
claims.1 It does not address the
adequacy of EPA fuel economy test
procedures or the accuracy of EPA label
content. Such issues fall within the
EPA’s purview and are generally outside
the Guide’s scope.
II. Guide Amendments
On June 6, 2016, the Commission
sought comment on proposed
amendments to the Guide (81 FR 36216)
(‘‘2016 Notice’’). Consistent with the
Commission’s other guides, these
proposed changes updated the Guide’s
format with a list of general principles
to help advertisers avoid deceptive
practices and detailed examples to
illustrate those principles. Additionally,
1 The
Guide does not have the force and effect of
law and is not independently enforceable. However,
failure to comply with industry guides may be an
unfair or deceptive practice. The Commission can
take action if a business engages in unfair or
deceptive practices in violation of Section 5 of the
FTC Act (15 U.S.C. 45(a)).
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the proposed amendments provided
guidance on claims involving EPAbased MPG ratings, non-EPA tests,
vehicle configuration, fuel economy
range, and alternative fueled vehicles.
The Commission conducted Internetbased research exploring consumer
perceptions of certain fuel economy
marketing claims.2 The Commission
based the proposed amendments on this
research, as well as the EPA and
NHTSA regulations, which have been
amended since the last Guide review.
The Commission received seven
comments in response.3 Having
reviewed these comments, the
Commission now publishes its final
amendments to the Guide.
III. Issues Discussed in the Comments
As discussed below, the comments
addressed several issues, including the
Guide’s overall benefits, single mileage
claims, alternative fueled vehicle
claims, non-EPA estimates in
advertising, and the Guide’s format and
wording.
A. Guide Benefits
The commenters generally supported
the proposed Guide revisions. For
example, the Alliance noted that the
amendments ‘‘represent a constructive
revision.’’ Commenter Hilandera added
that the changes ‘‘add transparency to
advertising by local dealers and national
media’’ and help consumers ‘‘evaluate
whether or not to purchase a particular
car model.’’ Commenters also
commended the FTC consumer
research. The Global Automakers stated
that the study results ‘‘allow for better,
data-based evaluation of advertising
statements, rather than speculating on
how consumers might interpret those
statements.’’ 4 NADA noted the research
lends ‘‘support to several of the
proposed changes to the Guide.’’
B. Single Mileage Claims
Background: The previous Guide
stated that, if an MPG claim involves
only city or only highway fuel economy,
2 Additional information about the study,
including the questionnaire and results, is available
on the FTC Web site. See https://www.ftc.gov/
policy/public-comments/initiative-663.
3 The comments can be found at https://
www.ftc.gov/policy/public-comments/initiative-663.
They include: Consumer Federation of America
(CFA) and the Center for Auto Safety (CAS) (jointly)
(referred herein as ‘‘CFA’’) (#13); National
Automobile Dealers Association (NADA) (#11);
Association of Global Automakers (Global
Automakers) #9; Auto Alliance (Alliance) (#10);
Growth Energy (#8); Isenberg (#6), and Hilandera
(#7).
4 One commenter (Isenberg) noted that EPA and
FTC should improve fuel economy testing.
However, as explained above, testing accuracy falls
outside of the Guide’s scope.
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43683
the advertisement need only disclose
the corresponding EPA city or highway
estimate (16 CFR 259.2(a)(1)(ii)). In the
2016 Notice, the Commission did not
propose changing this approach. The
Commission explained that single
mileage (i.e., single driving mode)
claims are not likely to deceive
consumers as long as the advertisement
clearly identifies the type of estimate
(e.g., city, highway, or combined), and
the estimate matches the content of the
advertised claims. Moreover, consumers
have seen such estimates in advertising
and on EPA labels for decades. In light
of this consumer experience, the
Commission stated that it seems
unlikely that a single, clearly-identified
mileage estimate would lead to
deception.
The 2016 Notice further explained
that the FTC consumer study supports
the conclusion that consumers would
not be deceived. For example, when
shown a single highway mileage claim
(e.g., ‘‘This car is rated at 25 miles per
gallon on the highway according to the
EPA estimate’’), the vast majority of
study respondents (74.6%) correctly
answered that the car would likely
achieve that MPG in highway driving,
and the responses for alternative
interpretations were low.5 The results
were similar when respondents were
asked about a claim for a combination
of city and highway driving.6
As the Commission explained, this
research suggests that single mileage
claims do not deceive consumers as
long as the claim specifies the mode of
driving involved (e.g., highway,
combined, etc.). Given the absence of
evidence demonstrating that such
claims are deceptive, the Commission
did not propose changes. Thus,
consistent with the previous Guide, the
Commission proposed a provision
(§ 259.4(c)) that continued to advise
marketers that EPA fuel economy
estimates should match the type of
driving claims (e.g., city, highway,
general, etc.) appearing in the
advertisements. For instance, if the
advertiser makes a city fuel economy
claim, it should disclose the city rating.
Likewise, where an advertiser makes a
general fuel economy claim, it should
disclose both the highway and city
rating (or combined) to prevent
deception.
5 See Q5c. The response results for other choices,
with no control, were: city rating (5.8%), combined
rating (10.7%), unsure (5.5%), and none of the
above (3.5%).
6 The results for Q5d were, not accounting for a
control: combined (76.6%), highway (10%), city
(4.2%), not sure (6.2%), and none of the above
(2.5%).
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Federal Register / Vol. 82, No. 180 / Tuesday, September 19, 2017 / Rules and Regulations
Comments: The comments differed
about the proposed guidance for single
mileage claims. Some supported the
Commission’s proposal. For instance,
Global Automakers argued that the
consumer research supports the
Commission’s conclusion and that, after
40 years of federally-mandated fuel
economy information, ‘‘consumers are
very aware of the significance of city vs.
highway fuel economy estimates.’’
However, CFA strongly disagreed,
arguing that a single city or highway
MPG number is deceptive.
According to CFA, advertisers’ failure
to disclose city or combined ratings
along with the highway rating
constitutes a material omission likely to
mislead consumers. In CFA’s view,
because no consistent relationship
exists between city and highway
estimates, consumers cannot infer one
of the ratings based solely on the other
or predict their own experience based
on a single rating. Accordingly, CFA
argued that automobile advertisers
should present both the highway and
city numbers, the combined, or all three
in their fuel economy advertising. As
detailed below, in support of this
position, CFA discussed the FTC’s
research, submitted its own research,
and highlighted additional arguments
supporting its contention that highwayonly MPG claims are misleading.
First, CFA addressed and critiqued
the FTC research and associated
analysis, claiming that the Commission
failed to highlight a key result and that
the study’s question ordering led to
biased responses. Specifically, CFA
argued the results of Question 6c reveal
that a single mileage claim is likely to
deceive a significant minority of
consumers. The question presented
respondents with a claim stating that
‘‘This car is rated at 25 miles per gallon
on the highway according to the EPA
estimate’’ (Q6c) and then asked them
whether they would expect to achieve
that rating if they used the advertised
vehicle for all their driving. According
to the results, 20.7% of the respondents
said they would probably get 25 MPG
overall for all their driving. CFA
contended this result demonstrates that,
even if accompanied by a clear and
prominent disclaimer that applies only
to highway driving, a single mileage
number misleads a significant minority
of consumers into overestimating the
MPG they will achieve.
Additionally, CFA claimed the
questions most relevant to the single
mileage claim appeared after
‘‘respondents had already experienced a
number of questions emphasizing the
distinction between highway and city
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driving and estimates.’’ 7 CFA
contended the appearance of the city
and highway mileage claims earlier in
the questionnaire biased responses to
subsequent questions.
CFA also highlighted its own
research. Its national telephone survey
presented three questions. First, it
showed respondents an advertisement
stating ‘‘31 miles per gallon EPA
highway estimate’’ and then asked
whether they would be more or less
likely to consider buying the vehicle if
that advertisement also stated ‘‘19 miles
per gallon EPA city estimate.’’ Overall,
43% of respondents said the city
number would affect their behavior
(26% said it would make them less
likely to buy the car, while 17% said it
would make them more likely). CFA
asserted that, because over two-fifths of
the respondents said the city rating
disclosure would change their behavior,
advertising should present both
numbers.
Second, the CFA survey asked
respondents whether ‘‘it is misleading
to allow advertisers to present only a
vehicle’s miles per gallon estimate for
highway driving.’’ Before presenting
this question, the survey informed
participants that ‘‘[v]ehicles nearly
always get more miles per gallon, or
higher mileage per gallon, on highway
driving than on city driving.’’ Sixty four
percent of respondents indicated that
presenting only the highway number in
advertising is misleading. Third, the
CFA survey asked respondents which
type of claim (i.e., highway and city
MPG, combined MPG, city MPG only, or
highway MPG only) automobile
advertisers should be required to make
in ‘‘a fuel economy claim.’’ In response,
65% identified both highway and city,
23% pointed to a combined estimate,
6% to the city rating, and only 3% to
the highway number.
Finally, CFA made several additional
points. First, it explained that
consumers are less likely to drive on the
highway than in the city. It noted that,
in approximating typical consumer
driving patterns, the EPA combined
number assumes 45% highway driving
and 55% city driving. Second, it
presented data demonstrating that little
correlation exists for the majority of
vehicles between a vehicle’s highway
MPG and its corresponding city or
combined MPG. Given this variability,
CFA concluded that consumers cannot
accurately infer a model’s city or
combined MPG from a single highway
rating, and those who attempt to make
such an inference would be misled by
7 These prior questions included Q3b, Q3c–e, and
Q5a.
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a single mileage number.8 CFA further
argued that, despite this variability, FTC
has concluded consumers have a
particular understanding of the
relationship between city and highway
ratings that leads them to ‘‘impute their
own expected mileage, or compare
mileages, based on just the highway
number.’’ CFA concluded that the city
and highway MPG figures together
allow consumers better to assess, based
on their own personal experience, MPG
differences among vehicles.
Discussion: Consistent with the
Commission’s previous guidance, the
final Guide does not advise against
advertisers making single mileage
claims.9 Neither the FTC study nor the
comments provide clear evidence that
such claims are deceptive. As detailed
in the 2016 Notice, the FTC research
suggests single mileage claims do not
lead consumers to believe they will
achieve that rating in other modes of
driving. In addition, as discussed below,
such claims do not appear to constitute
a deceptive omission. While including
MPG ratings for multiple modes of
driving in advertising (e.g., disclosure of
both city and highway MPG, or
combined MPG) provides consumers
with more information about vehicle
fuel economy, the FTC Act requires
advertisers to disclose only information
that is necessary to prevent consumers
from being misled—not all information
that consumers may deem useful. As
discussed below, the Commission
disagrees with CFA’s interpretation of
the FTC study results. In addition,
CFA’s own research does not provide
convincing evidence of deception.
First, the Commission disagrees with
CFA’s assertion that the question Q6
responses demonstrate a single mileage
claim deceives a significant minority of
consumers. Question Q6c specifically
asked respondents to read the statement
‘‘This car is rated at 25 miles per gallon
on the highway according to the EPA
estimate,’’ and to choose a closed-ended
answer that ‘‘best describes what you
would expect to get if you used this car
for all your driving.’’ Respondents chose
from several close-ended answers
indicating whether their results, based
on their own driving, would be higher
than, lower than, or similar to the
advertised rating. As CFA noted, 20.7%
8 Likewise, CFA asserted that the appearance of
the city rating only in an advertisement is equally
misleading. However, CFA stated that ‘‘[i]f the FTC
were to allow only one number, which we don’t
recommend, in order to avoid deception, they
should only allow just the city as that is the
condition under which most people drive,
according to the EPA.’’
9 The final Guide continues to advise against
unqualified mileage claims that fail to specify
driving mode (e.g., 46 MPG) (§ 259.4(c)).
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of participants responded, ‘‘I would
probably get 25 miles per gallon.’’ In
CFA’s view, this figure demonstrates
that the claim deceived a significant
minority because these participants
believed the highway rating would be
achieved in all of their driving.
However, the responses to Q6 do not
provide a reliable measure of whether a
highway-driving claim leads
respondents to take away a false or
misleading claim about ratings for other
driving modes. First, because the survey
asked respondents to consider their own
driving habits, some portion of this 20%
may be consumers who drive a lot on
the highway. Those consumers’ answers
do not demonstrate that the disclosure
was deceptive. Second, because there is
no control for these particular results,
some portion of the answers likely
represents random guessing, confusion
about the question, or other factors
absent in a real-world advertising
context.10 Thus, although comparing
responses across questions Q6a–c helps
to gauge how respondents’ expectations
for their own mileage may generally
differ depending on the claim, the
responses to these individual questions,
considered in isolation, do not provide
meaningful, specific measures of
whether any of these claims are false or
misleading.
Second, contrary to the commenters’
suggestions, the question sequence in
the FTC study is unlikely to have
significantly impacted the research
results. According to CFA, questions
involving different driving modes
appeared early in the survey. In its
view, these questions ‘‘sensitized’’ (or
‘‘educated’’) participants and caused
them to answer later questions about
driving modes differently than they
would have if they had not been
exposed to these prior questions. CFA
pointed to three examples of questions
appearing early in the study (Q3b, Q3c–
e, and Q5a) that, in its view, tainted
later results. However, the questions
themselves did not mention different
driving modes. Additionally, two of
these three examples (Q3b and Q5a)
were open-ended questions, where
participants typed their answers into a
blank text box.11 Though some
10 See, e.g., Diamond, Shari S. ‘‘Reference Guide
on Survey Research.’’ Reference Manual on
Scientific Evidence, Third Edition, Federal Judicial
Center, 359–424, https://www.fjc.gov/sites/default/
files/2015/SciMan3D01.pdf.
11 Terms listed in the questionnaire codebook
(e.g., ‘‘highway’’ in Question 18) may have
suggested that these questions presented
respondents with specific answer choices (i.e., were
close-ended). In fact, the terms listed in the
codebook are the code categories used to sort
respondents’ individual answers to these openended questions.
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respondents mentioned highway and
city driving in their typed responses, no
respondent could see any answer other
than their own. Therefore, the questions
could not have sensitized study
participants.
Additionally, the other example
offered by the commenters, Q3c–3e
(each respondent answered only one of
these), is unlikely to have biased
respondents. These questions displayed
several closed-ended answers, one of
which read, ‘‘This model gets up to 30
miles per gallon depending on whether
it’s highway or city driving.’’ The
questions did not specify whether one
mode of driving yields different mileage
than the other.12 Despite the mention of
highway and city driving, it is unlikely
the mention of these modes of driving
biased respondents in answering
subsequent questions. For decades,
miles per gallon ratings for highway and
city driving have been familiar concepts
in advertising. These ratings routinely
appear in television advertising, on Web
sites, and on vehicle labels in
showrooms. Thus, the reference to
modes of driving is not likely to be
novel to typical consumers, particularly
the recent or prospective car purchasers
who participated in the study.
Accordingly, the limited mention of
driving modes in this prior question is
unlikely to have affected significantly
respondents’ subsequent answers.
Third, several aspects of the CFA
study reduce its utility in addressing the
question at hand. For instance, CFA’s
first study question, QE1, asked whether
adding a city rating to a highway rating
claim would change the likelihood
participants would purchase a
particular car. As constructed, the
question merely provides evidence that
the city mileage rating may be useful to
the consumer’s decision. It does not
demonstrate that the highway rating,
standing alone, is deceptive. In
addition, the two other principal
questions in the study (questions QE2
and QE3) sought the respondents’
personal opinions about whether certain
claims would be misleading or
desirable. Such opinion questions do
not furnish reliable evidence about
deception because they rely on
respondents’ opinions about the claim’s
effects, as well as their own
understanding of what deception
means. QE3 is additionally problematic
because it asks respondents only to
identify disclosures that ‘‘auto
advertisers should be required to
12 Although consumers may have their own
preconceived notions about the significance of
different fuel economy ratings, the question itself
did not provide such information.
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include if making a fuel economy
claim,’’ even though consumers could
have various reasons other than the
prevention of deception for wanting
advertisers to disclose this information.
Finally, the study’s lack of control
questions reduces its usefulness,
particularly given that CFA’s questions
seek respondents’ personal opinions, as
discussed above.
Fourth, CFA argued that a highway
mileage-only claim constitutes a
misleading omission because consumers
are not aware that city ratings can be
substantially lower than highway
numbers and, instead, believe a city
rating can be derived from the vehicle’s
highway number. As CFA explained, no
consistent relationship exists between
city and highway ratings among models
on the market.13 Compared to the
highway ratings, city ratings can be
much lower, slightly lower, and even
greater in some cases. These facts do not
demonstrate that single mileage claims
are deceptive. In its Policy Statement on
Deception, the Commission explained
that a ‘‘misleading omission occurs
when qualifying information necessary
to prevent a practice, claim,
representation, or reasonable
expectation or belief from being
misleading is not disclosed.’’ 14 In this
case, the FTC research suggests that
consumers are not misled by standalone highway mode claims. As
discussed above, the CFA research does
not clearly indicate otherwise.
Additionally, there is no clear
indication consumers misperceive the
relationship between city and highway
ratings in a particular way that renders
otherwise truthful highway mileage
claims misleading. In fact, given the
13 CFA asserted that the FTC has concluded
consumers have a particular understanding of the
relationship between city and highway ratings that
leads them to ‘‘impute their own expected mileage,
or compare mileages, based on just the highway
number.’’ Although the Commission observed that
many respondents expect the combined MPG to be
lower than highway (81 FR at 36220, n. 31), the
Commission did not intend to imply that
consumers can impute the combined or city MPG
based on the highway number.
14 See FTC Policy Statement on Deception,
appended to Cliffdale Associates, Inc., 103 F.T.C.
110, 174 (1984) (https://www.ftc.gov/publicstatements/1983/10/ftc-policy-statement-deception)
(‘‘Deception Policy Statement’’). ‘‘In determining
whether an omission is deceptive, the Commission
will examine the overall impression created by a
practice, claim, or representation. For example, the
practice of offering a product for sale creates an
implied representation that it is fit for the purposes
for which it is sold. Failure to disclose that the
product is not fit constitutes a deceptive
omission. . . . Omissions may also be deceptive
where the representations made are not literally
misleading, if those representations create a
reasonable expectation or belief among consumers
which is misleading, absent the omitted
disclosure.’’ Id. at n. 4.
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wide, longstanding availability of
highway and city mileage ratings in the
market, such misperception seems
unlikely.
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C. Alternative Fuels
Background: The proposed Guide
amendments advise marketers that, if a
flexible fueled vehicle (FFV)
advertisement mentions the vehicle’s
flexible fuel capability and makes a fuel
economy claim, it should include the
EPA fuel economy estimates for both
gasoline and alternative fuel operation.
The proposed Guide further explains
that, without such disclosures,
consumers may assume the advertised
MPG rating applies both to gasoline and
alternative fuel operation.
Comments: The comments raised two
concerns about this guidance. First, the
Alliance asked the Commission to
clarify that advertisers may provide only
one fuel economy rating for FFVs if the
advertisement clearly states the rating
applies to gasoline operation. In the
Alliance’s view, the manufacturer
should be able to highlight the vehicle’s
rating under a single fuel without
adding unnecessary wording to disclose
both fuel ratings. According to the
Alliance, such claims are not deceptive
as long as ‘‘the advertised rating cannot
reasonably be understood by the
consumer to apply to both fuels.’’
Second, the Global Automakers and
the Alliance asked for clarification that
the proposed flex-fuel guidance does
not apply to plug-in hybrids (PHEVs),
which are rated for both chargedepleting (expressed in MPGe) and
charge-sustaining operation. These
commenters noted that the Commission
did not propose advising advertisers to
disclose MPGe in advertising for electric
vehicles because it is unclear whether
such disclosures are essential to
preventing deception and whether
consumers understand and use such
disclosures.15
Discussion: The Commission has
modified the FFV guidance to address
the Alliance’s suggestion regarding
qualifications for FFV gasoline mileage
claims. We agree that a clear and
prominent disclosure limited to gasoline
operation may obviate the need to
15 Growth Energy also asked for clarification that
the proposed Guide amendments do not create any
changes to the EPA-required labels. They do not. In
addition, Growth Energy asked whether the Guide
‘‘in any way limit truthful and substantiated
statements an advertiser may make regarding the
benefits of FFVs,’’ such as environmental benefits.
The Guide does not specifically address claims
outside of the fuel economy context. However,
marketers may wish to consult additional
Commission guidance, such as the Guides for the
Use of Environmental Marketing Claims (Green
Guides) (16 CFR part 260).
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disclose the vehicle’s alternative fuel
mileage. The final amendments contain
language acknowledging this
possibility.16 In addition, in response to
comments about PHEVs, the
Commission has modified the final
Guide to clarify the example does not
apply to such vehicles.
D. Non-EPA Estimates
Background: Since its initial
publication, the Guide has addressed
fuel economy claims based on non-EPA
tests. In issuing the Guide in 1975, the
Commission explained that ‘‘the use in
advertising of fuel economy results
obtained from disparate test procedures
may unfairly and deceptively deny to
consumers information which will
enable them to compare advertised
automobiles on the basis of fuel
economy.’’ 17 The current Guide advises
advertisers to provide several
disclosures whenever they make a fuel
economy claim based on non-EPA
information. Specifically, § 259.2(c)
states that fuel economy claims based
on such information should: (1) Disclose
the corresponding EPA estimates with
more prominence than other estimates;
(2) identify the source of the non-EPA
information; and (3) disclose how the
non-EPA test differs from the EPA test
in terms of driving conditions and other
relevant variables.
In its 2016 Notice, the Commission
did not propose changing this approach.
The Commission identified no evidence
that fuel economy claims are deceptive
if accompanied by the clear and
prominent disclosures described above.
Therefore, consistent with the previous
Guide, the proposed Guide
recommended specific disclosures
related to non-EPA claims to reduce the
possibility of deception.18 Finally, the
previous Guide addressed the relative
size and prominence of fuel economy
claims based on non-EPA and EPA
estimates in television, radio, and print
advertisements. The Commission
proposed retaining this guidance but
also clarifying that it applies to any
advertising medium (not solely
television, radio, and print).
Comments: Though the comments
generally supported the guidance on
non-EPA estimates, they raised two
issues. First, the Alliance explained
that, although such claims are not
common, advertisers believe actual
driving results achieved under
controlled conditions other than the
16 See
§ 259.4(j).
FR 42003 (Sept. 10, 1975).
18 The guidance assumes that the advertised nonEPA estimates are not identical to the EPA
estimates.
17 40
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EPA testing methodology may be
valuable to consumers in some
circumstances. Both the Alliance and
the Global Automakers noted that,
under limited conditions, manufacturers
may want to use non-EPA claims prior
to a new vehicle launch when the
formal EPA estimates are not yet
available. In this case, a manufacturer
may give its projection of the
anticipated EPA estimates based on its
testing using the EPA methodology. If
such estimates are clearly identified as
projections, the commenters asserted
they are not deceptive.
Second, Global Automakers noted
that, in some cases, a manufacturer may
wish to include actual on-road test
results from reputable organizations to
provide additional information
regarding the vehicle’s fuel economy. In
explaining the road test procedures and
conditions, according to Global
Automakers, it should be sufficient to
simply state that the data is generated
through on-road tests and specify the
organization that conducted the tests,
without providing extensive details
regarding the test procedures and
conditions.
Discussion: In the final Guide, the
Commission has not changed the nonEPA claims section. Specifically, the
final Guide does not address the use of
‘‘preliminary’’ test results in advertising.
It is not clear how consumers interpret
such claims. In addition, the
Commission disagrees with Global
Automakers regarding disclosures for
advertisements containing ‘‘on-road’’
test results. Without the full set of
disclosures recommended by the Guide,
it is not clear whether consumers will
understand that such ‘‘road test’’ results
are inconsistent with the EPA-approved
ratings. Given this uncertainty as to
what consumers would take away from
preliminary test results in advertising,
the Commission has decided not to alter
the non-EPA claims section.
E. Guide Format and Language
Background: The Commission
proposed improving the Guide’s format
by making it consistent with recently
amended FTC guides, such as the
Guides for the Use of Environmental
Marketing Claims.19 Under this
approach, the Guide includes a list of
general principles to help advertisers
avoid deceptive practices with detailed
examples to illustrate those principles.
Comments: The commenters generally
agreed with, or did not comment on, the
revised format. CFA, however, raised
concerns about the language used to
19 See Guides for the Use of Environmental
Marketing Claims (Green Guides) (16 CFR part 260).
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identify deceptive claims in the
proposed Guide examples.20 It noted
that, the conclusions in several
examples state that the claim in
question is ‘‘likely’’ to be deceptive.
CFA noted this approach conflicts with
the Green Guides, which generally
states the example claims ‘‘are’’
deceptive. In the commenters’ view, the
weaker language in the reformatted
Guide serves neither businesses, which
seek clear, firm guidance, nor
consumers who may fall victim to
unscrupulous businesses that make
claims inconsistent with the Guides and
then point to the Guides’ vagueness as
a defense. CFA further stated that the
lack of clarity hampers the enforcement
efforts of state and local consumer
protection agencies and private
attorneys.21
Discussion: The Commission agrees
that the guidance should be consistent
with similar documents such as the
Green Guides (16 CFR part 260) and
Endorsement Guides (16 CFR part 255).
Because these guides reflect the
Commission’s understanding of how
consumers are likely to interpret the
applicable claims, it is reasonable to
follow a consistent format for the
examples in each. The guides set forth
general principles, together with
instructive examples, designed to help
marketers avoid deceptive claims.
However, as noted in the guides
themselves, determinations regarding
particular claims will depend on the
specific advertisement at issue.22
Nevertheless, to ensure consistency
with other guidance and avoid
confusion, the Commission has
modified the examples in the final
Guide consistent with the commenters’
suggestion.
20 The Alliance agreed with the Commission’s
decision not to provide specific guidance related to
fuel economy claims in limited-format advertising.
Interested parties may contact the FTC to discuss
specific limited-format situations as they arise.
Further developments in this area may suggest the
need for the development of additional guidelines
in the future.
21 CFA also recommended that the Commission
replace the phrase ‘‘estimated MPG’’ with ‘‘fuel
economy claim’’ in proposed § 259.3. The
Commission has made this change to clarify the
guidance’s breadth. In addition, CFA recommended
the section clarify that if a MPG number appears in
an advertisement, the qualifying information
recommended by the Guides (e.g., EPA estimate)
should be clearly, conspicuously, and prominently
displayed adjacent to the MPG number. The final
Guide does not include such a change because the
guidance already states such disclosures should
appear in ‘‘close proximity’’ to the claim.
22 In determining whether an advertisement,
including its format, misleads consumers, the
Commission considers the overall ‘‘net impression’’
it conveys. See Deception Policy Statement, 103
F.T.C. at 175.
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List of Subjects in 16 CFR Part 259
Advertising, Fuel economy, Trade
practices.
Final Amendments
For the reasons set forth in the
preamble, the Commission revises 16
CFR part 259 to read as follows:
■
PART 259—GUIDE CONCERNING
FUEL ECONOMY ADVERTISING FOR
NEW AUTOMOBILES
Sec.
259.1
259.2
259.3
259.4
Purpose.
Definitions.
Qualifications and disclosures.
Advertising guidance.
Authority: 15 U.S.C. 41–58.
§ 259.1
Purpose.
The Guide in this part contains
administrative interpretations of laws
enforced by the Federal Trade
Commission. Specifically, the Guide
addresses the application of Section 5 of
the FTC Act (15 U.S.C. 45) to the use of
fuel economy information in advertising
for new automobiles. This guidance
provides the basis for voluntary
compliance with the law by advertisers
and endorsers. Practices inconsistent
with this Guide may result in corrective
action by the Commission under Section
5 if, after investigation, the Commission
has reason to believe that the practices
fall within the scope of conduct
declared unlawful by the statute. The
Guide sets forth the general principles
that the Commission will use in such an
investigation together with examples
illustrating the application of those
principles. The Guide does not purport
to cover every possible use of fuel
economy in advertising. Whether a
particular advertisement is deceptive
will depend on the specific
advertisement at issue.
§ 259.2
Definitions.
For the purposes of this part, the
following definitions shall apply:
Alternative fueled vehicle. Any
vehicle that qualifies as a covered
vehicle under part 309 of this chapter.
Automobile. Any new passenger
automobile, medium duty passenger
vehicle, or light truck for which a fuel
economy label is required under the
Energy Policy and Conservation Act (42
U.S.C. 32901 et seq.) or rules
promulgated thereunder, the equitable
or legal title to which has never been
transferred by a manufacturer,
distributor, or dealer to an ultimate
purchaser or lessee. For the purposes of
this part, the terms ‘‘vehicle’’ and ‘‘car’’
have the same meaning as
‘‘automobile.’’
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Dealer. Any person located in the
United States or any territory thereof
engaged in the sale or distribution of
new automobiles to the ultimate
purchaser.
EPA. The U.S. Environmental
Protection Agency.
EPA city fuel economy estimate. The
city fuel economy determined in
accordance with the city test procedure
as defined and determined pursuant to
40 CFR part 600, subpart D.
EPA combined fuel economy estimate.
The fuel economy value determined for
a vehicle (or vehicles) by harmonically
averaging the city and highway fuel
economy values, weighted 0.55 and 0.45
respectively, determined pursuant to 40
CFR part 600, subpart D.
EPA driving range estimate. An
estimate of the number of miles a
vehicle will travel between refueling as
defined and determined pursuant to 40
CFR part 600, subpart D.
EPA fuel economy estimate. The
average number of miles traveled by an
automobile per volume of fuel
consumed (i.e., Miles-Per-Gallon
(‘‘MPG’’) rating) as calculated under 40
CFR part 600, subpart D.
EPA highway fuel economy estimate.
The highway fuel economy determined
in accordance with the highway test
procedure as defined and determined
pursuant to 40 CFR part 600, subpart D.
Flexible fueled vehicle. Any motor
vehicle (or motor vehicle engine)
engineered and designed to be operated
on any mixture of two or more different
fuels.
Fuel. (1) Gasoline and diesel fuel for
gasoline- or diesel-powered
automobiles;
(2) Electricity for electrically-powered
automobiles;
(3) Alcohol for alcohol-powered
automobiles;
(4) Natural gas for natural gaspowered automobiles; or
(5) Any other fuel type used in a
vehicle for which EPA requires a fuel
economy label under 40 CFR part 600,
subpart D.
Manufacturer. Any person engaged in
the manufacturing or assembling of new
automobiles, including any person
importing new automobiles for resale
and any person who acts for, and is
under the control, of such manufacturer,
assembler, or importer in connection
with the distribution of new
automobiles.
Model type. A unique combination of
car line, basic engine, and transmission
class as defined by 40 CFR part 600,
subpart D.
Ultimate purchaser or lessee. The first
person, other than a dealer purchasing
in his or her capacity as a dealer, who
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in good faith purchases a new
automobile for purposes other than
resale or leases such vehicle for his or
her personal use.
Vehicle configuration. The unique
combination of automobile features, as
defined in 40 CFR part 600.
§ 259.3
Qualifications and disclosures.
To prevent deceptive claims,
qualifications and disclosures should be
clear, prominent, and understandable.
To make disclosures clear and
prominent, marketers should use plain
language and sufficiently large type for
a person to see and understand them,
should place disclosures in close
proximity to the qualified claim, and
should avoid making inconsistent
statements or using distracting elements
that could undercut or contradict the
disclosure. The disclosures should also
appear in the same format as the claim.
For example, for television
advertisements, if the fuel economy
claim appears in the video, the
disclosure recommended by this Guide
should appear in the visual format; if
the fuel economy claim is audio, the
disclosure should be in audio.
§ 259.4
Advertising guidance.
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(a) Misrepresentations. It is deceptive
to misrepresent, directly or by
implication, the fuel economy or driving
range of an automobile.
(b) General fuel economy claims.
General unqualified fuel economy
claims, which do not reference a
specific fuel economy estimate, likely
convey a wide range of meanings about
a vehicle’s fuel economy relative to
other vehicles. Such claims, which
inherently involve comparisons to other
vehicles, can mislead consumers about
the vehicle class included in the
comparison, as well as the extent to
which the advertised vehicle’s fuel
economy differs from other models.
Because it is highly unlikely that
advertisers can substantiate all
reasonable interpretations of these
claims, advertisers making general fuel
economy claims should disclose the
advertised vehicle’s EPA fuel economy
estimate in the form of the EPA MPG
rating.
Example 1: A new car advertisement states:
‘‘This vehicle gets great mileage.’’ The claim
is likely to convey a variety of meanings,
including that the vehicle has a better MPG
rating than all or almost all other cars on the
market. However, the advertised vehicle’s
EPA fuel economy estimates are only slightly
better than the average vehicle on the market.
Because the advertiser cannot substantiate
that the vehicle’s rating is better than all or
almost all other cars on the market, the
advertisement is deceptive. In addition, the
advertiser may not be able to substantiate
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other reasonable interpretations of the claim.
To avoid deception, the advertisement
should disclose the vehicle’s EPA fuel
economy estimate (e.g., ‘‘EPA-estimated 27
combined MPG’’).
Example 2: An advertisement states: ‘‘This
car gets great gas mileage compared to other
compact cars.’’ The claim is likely to convey
a variety of meanings, including that the
vehicle gets better gas mileage than all or
almost all other compact cars. However, the
vehicle’s EPA fuel economy estimates are
only slightly better than average compared to
other models in its class. Because the
advertiser cannot substantiate that the
vehicle’s rating is better than all or almost all
other compact cars, the advertisement is
deceptive. In addition, the advertiser may not
be able to substantiate other reasonable
interpretations of the claim. To address this
problem, the advertisement should disclose
the vehicle’s EPA fuel economy estimate.
(c) Matching the EPA estimate to the
claim. EPA fuel economy estimates
should match the mode of driving claim
appearing in the advertisement. If they
do not, consumers are likely to associate
the stated fuel economy estimate with a
different type of driving. Specifically, if
an advertiser makes a city or a highway
fuel economy claim, it should disclose
the corresponding EPA-estimated city or
highway fuel economy estimate. If the
advertiser makes both a city and a
highway fuel economy claim, it should
disclose both the EPA estimated city
and highway fuel economy rating. If the
advertiser makes a general fuel economy
claim without specifically referencing
city or highway driving, it should
disclose the EPA combined fuel
economy estimate, or, alternatively,
both the EPA city and highway fuel
economy estimates.
Example 1: An automobile advertisement
states that model ‘‘XYZ gets great gas mileage
in town.’’ However, the advertisement does
not disclose the EPA city fuel economy
estimate. Instead, it only discloses the EPA
highway fuel economy estimate, which is
higher than the model’s city estimate. This
claim likely conveys to a significant
proportion of reasonable consumers that the
highway estimate disclosed in the
advertisement applies to city driving. Thus,
the advertisement is deceptive to consumers.
To remedy this problem, the advertisement
should disclose the EPA city fuel economy
estimate (e.g., ‘‘32 MPG in the city according
to the EPA estimate’’).
Example 2: A new car advertisement states
that model ‘‘XZA gives you great gas
mileage’’ but only provides the EPA highway
fuel economy estimate. Given the likely
inconsistency between the general fuel
economy claim, which does not reference a
specific type of driving, and the disclosed
EPA highway estimate, the advertisement is
deceptive to consumers. To address this
problem, the advertisement should disclose
the EPA combined estimate (e.g., ‘‘37 MPG
for combined driving according to the EPA
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estimate’’), or both the EPA city and highway
fuel economy estimates.
Example 3: An advertisement states:
‘‘according to EPA estimates, new cars in this
class are rated at between 20 and 32 MPG,
while the EPA estimate for this car is an
impressive 35 MPG highway.’’ The
advertisement is likely to imply that the 20
to 32 MPG range and 35 MPG estimate are
comparable. In fact, the ‘‘20 and 32 MPG’’
range reflects EPA city estimates. Therefore,
the advertisement is deceptive. To address
this problem, the advertisement should only
provide an apples-to-apples comparison—
either using the highway range for the class
or using the city estimate for the advertised
vehicle.
(d) Identifying fuel economy and
driving range ratings as estimates.
Advertisers citing EPA fuel economy or
driving range figures should disclose
that these numbers are estimates.
Without such disclosures, consumers
may incorrectly assume that they will
achieve the mileage or range stated in
the advertisement. In fact, their actual
mileage or range will likely vary for
many reasons, including driving
conditions, driving habits, and vehicle
maintenance. To address potential
deception, advertisers may state that the
values are ‘‘EPA estimate(s),’’ or use
equivalent language that informs
consumers that they will not necessarily
achieve the stated MPG rating or driving
range.
Example 1: An automobile manufacture’s
Web site states, without qualification, ‘‘This
car gets 40 MPG on the highway.’’ The claim
likely conveys to a significant proportion of
reasonable consumers that they will achieve
40 MPG driving this vehicle on the highway.
The advertiser based its claim on an EPA
highway estimate. However, EPA provides
that estimate primarily for comparison
purposes—it does not necessarily reflect real
world driving results. Therefore, the claim is
deceptive. In addition, the use of the term
‘‘gets,’’ without qualification, may lead some
consumers to believe not only that they can,
but will consistently, achieve the stated
mileage. To address these problems, the
advertisement should clarify that the MPG
value is an estimate by stating ‘‘EPA
estimate’’ or equivalent language.
(e) Disclosing EPA test as source of
fuel economy and driving range
estimates. Advertisers citing any EPA
fuel economy or driving range figures
should identify EPA as the source of the
test so consumers understand that the
estimate is comparable to EPA estimates
for competing models. Doing so
prevents deception by ensuring that
consumers do not associate the claimed
ratings with a test other than the EPArequired procedures. Advertisers may
avoid deception by stating that the
values are ‘‘EPA estimate(s),’’ or
equivalent language that identifies the
EPA test as the source.
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Example 1: A radio commercial for the
‘‘XTQ’’ car states that the vehicle ‘‘is rated at
an estimated 28 MPG in the city’’ but does
not disclose that an EPA test is the source of
this MPG estimate. This advertisement may
convey that the source of this test is an entity
other than EPA. To avoid deception, the
advertisement should state that the MPG
figures are EPA estimates.
(f) Specifying driving modes for fuel
economy estimates. If an advertiser 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). Advertisements failing to do so
can deceive consumers who 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. Thus, such consumers may
believe the model’s fuel economy rating
is higher than it actually is.
Example 1: A television commercial for the
car model ‘‘ZTA’’ informs consumers that the
ZTA is rated at ‘‘25 miles per gallon
according to the EPA estimate’’ but does not
disclose whether this number is a highway,
city, or combined estimate. The
advertisement likely conveys to a significant
proportion of reasonable consumers that the
25 MPG figure reflects normal driving (i.e., a
combination of city and highway driving),
not the highway rating as intended by the
advertiser. In fact, the 25 MPG rating is the
vehicle’s EPA highway estimate. Therefore,
the advertisement is deceptive.
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(g) Within vehicle class comparisons.
If an advertisement contains an express
comparative fuel economy claim where
the relevant comparison is to any group
or class, other than all available
automobiles, the advertisement should
identify the group or class of vehicles
used in the comparison. Without such
qualifying information, many
consumers are likely to assume that the
advertisement compares the vehicle to
all new automobiles.
Example 1: An advertisement claims that
sports car X ‘‘outpaces other cars’ gas
mileage.’’ The claim likely conveys a variety
of meanings to a significant proportion of
reasonable consumers, including that this
vehicle has a higher MPG rating than all or
almost all other vehicles on the market.
Although the vehicle’s MPG rating compares
favorably to other sports cars, its fuel
economy is only better than roughly half of
all new automobiles on the market.
Therefore, the claim is deceptive.
(h) Comparing different model types.
Fuel economy estimates are assigned to
specific model types under 40 CFR part
600, subpart D (i.e., unique
combinations of car line, basic engine,
and transmission class). Therefore,
advertisers citing MPG ratings for
certain models should ensure that the
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rating applies to the model type
depicted in the advertisement. It is
deceptive to state or imply that a rated
fuel economy figure applies to a vehicle
featured in an advertisement if the
estimate does not apply to vehicles of
that model type.
Example 1: A manufacturer’s
advertisement states that model ‘‘PDQ’’ gets
‘‘great gas mileage’’ but depicts the MPG
numbers for a similar model type known as
the ‘‘Econo-PDQ.’’ The advertisement is
likely to convey that the claimed MPG rating
applies to all types of the PDQ model.
However, the ‘‘Econo-PDQ’’ has a better fuel
economy rating than other types of the
‘‘PDQ’’ model. Therefore, the advertisement
is deceptive.
(i) ‘‘Up to’’ claims. Advertisers should
avoid using the term ‘‘up to’’ without
adequate explanatory language if they
intend to communicate that certain
versions of a model (i.e., model types)
are rated at a stated fuel economy
estimate. A significant proportion of
reasonable consumers are likely to
interpret such claims to mean that the
stated MPG can be achieved if the
vehicle is driven under certain
conditions. Therefore, to address the
risk of deception, advertisers should
qualify the claim by clearly and
prominently disclosing the stated MPG
applies to a particular vehicle model
type.
Example 1: An advertisement states,
without further explanation, that a vehicle
model VXR will achieve ‘‘up to 40 MPG on
the highway.’’ The advertisement is based on
a particularly efficient type of this model,
with specific options, with an EPA highway
estimate of 40 MPG. However, other types of
model VXR have lower EPA MPG estimates.
A significant proportion of reasonable
consumers likely interpret the ‘‘up to’’ claim
as applying to all VXR model types.
Therefore, the advertisement is deceptive. To
address this problem, the advertisement
should clearly and prominently disclose that
the 40 MPG rating does not apply to all
model types of the VXR or use language other
than ‘‘up to’’ that better conveys the claim.
(j) Claims for flexible-fueled vehicles.
Advertisements for flexible-fueled
vehicles should not mislead consumers
about the vehicle’s fuel economy when
operated with alternative fuel. If an
advertisement for a flexible-fueled
vehicle (other than a plug-in hybrid
electric vehicle) mentions the vehicle’s
flexible-fuel capability and makes a fuel
economy claim, it should clearly and
prominently qualify the claim to
identify the type of fuel used. Without
such qualification, consumers are likely
to take away that the stated fuel
economy estimate applies to both
gasoline and alternative fuel operation.
Example 1: An automobile advertisement
states: ‘‘This flex-fuel powerhouse has a 30
PO 00000
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43689
MPG highway rating according to the EPA
estimate.’’ The advertisement likely implies
that the 30 MPG rating applies to both
gasoline and alternative fuel operation. In
fact, the ethanol EPA estimate for this vehicle
is 25 MPG. Therefore, the advertisement is
deceptive. To address this problem, the
advertisement could clearly and prominently
qualify the claim or disclose the MPG ratings
for both gasoline and alternative fuel
operation.
(k) General driving range claims.
General unqualified driving range
claims, which do not reference a
specific driving range estimate, are
difficult for consumers to interpret and
likely convey a wide range of meanings
about a vehicle’s range relative to other
vehicles. Such claims, which inherently
involve comparisons to other vehicles,
can mislead consumers about the
vehicle class included in the
comparison as well as the extent to
which the advertised vehicle’s driving
range differs from other models.
Consumers may take away a range of
reasonable interpretations from these
claims. To avoid possible deception,
advertisers making general driving range
claims should disclose the advertised
vehicle’s EPA driving range estimate.
Example 1: An advertisement for an
electric vehicle states: ‘‘This car has a great
driving range.’’ This claim likely conveys a
variety of meanings, including that the
vehicle has a better driving range than all or
almost all other electric vehicles. However,
the EPA driving range estimate for this
vehicle is only slightly better than roughly
half of all other electric vehicles on the
market. Because the advertiser cannot
substantiate that the vehicle’s driving range
is better than all or almost all other electric
vehicles, the advertisement is deceptive. In
addition, the advertiser may not be able to
substantiate other reasonable interpretations
of the claim. To address this problem, the
advertisement should disclose the vehicle’s
EPA driving range estimate (e.g., ‘‘EPAestimated range of 70 miles per charge’’).
(l) Use of non-EPA estimates—(1)
Disclosure content. Given consumers’
exposure to EPA estimated fuel
economy values over the last several
decades, fuel economy and driving
range estimates derived from non-EPA
tests can lead to deception if consumers
understand such estimates to be fuel
economy ratings derived from EPArequired tests. Accordingly, advertisers
should avoid such claims and disclose
the EPA fuel economy or driving range
estimates. However, if an advertisement
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:
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asabaliauskas on DSKBBXCHB2PROD with RULES
(i) That the fuel economy or driving
range information is based on a nonEPA 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 nonEPA test that are different from those
used in the EPA test. Such conditions
and variables may include, but are not
limited to, road or dynamometer test,
average speed, range of speed, hot or
cold start, temperature, and design or
equipment differences.
(2) Disclosure format. The
Commission regards the following as
constituting ‘‘substantially more
prominence’’:
(i) For visual disclosures on television.
If the fuel economy claims appear only
in the visual portion, the EPA figures
should appear in numbers twice as large
as those used for any other estimate, and
should remain on the screen at least as
long as any other estimate. Each EPA
figure should 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.
(ii) For audio disclosures. For radio
and television advertisements in which
any other estimate is used only in the
audio, equal prominence should be
given to the EPA figures. The
Commission will regard the following as
constituting equal prominence: 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.
(iii) For print and Internet disclosures.
The EPA figures should appear 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. They may not appear in a
footnote unless all references to fuel
economy appear in a footnote.
Example 1: An Internet advertisement
states: ‘‘Independent driving experts took the
QXT car for a weekend spin and managed to
get 55 miles-per-gallon under a variety of
driving conditions.’’ It does not disclose the
actual EPA fuel economy estimates, nor does
it explain how conditions during the
‘‘weekend spin’’ differed from those under
the EPA tests. This advertisement likely
conveys that the 55 MPG figure is the same
or comparable to an EPA fuel economy
estimate for the vehicle. This claim is
deceptive because it fails to disclose that fuel
economy information is based on a non-EPA
test, the source of the non-EPA test, the EPA
fuel economy estimates for the vehicle, and
all driving conditions or vehicle
VerDate Sep<11>2014
16:10 Sep 18, 2017
Jkt 241001
configurations simulated by the non-EPA test
that are different from those used in the EPA
test.
Example 2: An advertisement states: ‘‘The
XZY electric car has a driving range of 110
miles per charge in summer conditions
according to our expert’s test.’’ It provides no
additional information regarding this driving
range claim. This advertisement likely
conveys that this 110-mile driving range
figure is comparable to an EPA driving range
estimate for the vehicle. The advertisement is
deceptive because it does not clearly state
that the test is a non-EPA test; it does not
provide the EPA estimated driving range; and
it does not explain how conditions referred
to in the advertisement differed from those
under the EPA tests. Without this
information, consumers are likely to confuse
the claims with range estimates derived from
the official EPA test procedures.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2017–19869 Filed 9–18–17; 8:45 am]
BILLING CODE 6750–01–P
FEDERAL TRADE COMMISSION
16 CFR Parts 300, 301, and 303
RIN 3084–AB29, 3084–AB27, 3084–AB30
Wool Products Labeling; Fur Products
Labeling; Textile Fiber Products
Identification
Federal Trade Commission.
Final rules.
AGENCY:
ACTION:
The Federal Trade
Commission (‘‘Commission’’ or ‘‘FTC’’)
amends the Rules and Regulations
Under the Wool Products Labeling Act
of 1939 (‘‘Wool Rules’’), the Rules and
Regulations Under Fur Products
Labeling Act (‘‘Fur Rules’’), and the
Rules and Regulations Under the Textile
Fiber Products Identification Act
(‘‘Textile Rules’’) (collectively, ‘‘Rules’’)
to require the public to submit any
requests to obtain, update, or cancel
registered identification numbers via the
FTC’s Web site.
DATES: The amended Rules are effective
October 19, 2017.
FOR FURTHER INFORMATION CONTACT:
Joshua S. Millard, (202) 326–2454,
Bureau of Consumer Protection, Federal
Trade Commission, 600 Pennsylvania
Ave. NW., Washington, DC 20580.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Introduction
The Commission is revising the Fur,
Textile, and Wool Rules to require
electronic filing of requests to obtain,
update, or cancel registered
identification numbers used on fur,
textile, and wool product labels through
PO 00000
Frm 00024
Fmt 4700
Sfmt 4700
the FTC’s Web site, unless the
Commission or its designee instructs
otherwise as specified below. The
revisions facilitate the use of the
Commission’s web-based registered
identification number (‘‘RN’’) system,
which will streamline the application
and update process for participating
businesses, and greatly increase the
efficiency with which the FTC delivers
RN services to the public. This
document describes the background of
the RN program and the grounds for
revising the relevant parts of the Fur,
Textile, and Wool Rules, and sets forth
the amended Rules provisions.
II. Background
Federal labeling requirements
mandate that most fur, textile, and wool
products have a label identifying the
manufacturer or other business
responsible for marketing or handling
the item.1 To comply with this mandate,
a person or firm residing in the United
States that imports, manufactures,
markets, distributes, or otherwise
handles fur, textile, or wool products
may apply for an RN to display on
product labels in lieu of the person or
firm’s full name.2 RNs are not
mandatory, but they occupy less space
on a label and help buyers identify the
person or firm responsible for a product.
The public can find contact information
for each RN registrant by searching the
FTC’s public Web page dedicated to the
RN program, https://rn.ftc.gov.
For over 50 years, to obtain or update
an RN, one had to complete and submit
a paper form published in the Federal
Register, or in more recent years,
transmit the information requested on
that form by electronic means.3 The FTC
receives thousands of new RN
applications every year in various
formats, thus complicating and slowing
the review process.4
1 See 15 U.S.C. 68b(a)(2)(C) (Wool Products
Labeling Act of 1939) (‘‘Wool Act’’); 15 U.S.C.
69b(2)(E) (Fur Products Labeling Act) (‘‘Fur Act’’);
15 U.S.C. 70b(b)(3) (Textile Fiber Products
Identification Act) (‘‘Textile Act’’); 16 CFR part 300
(Wool Rules); 16 CFR part 301 (Fur Rules); 16 CFR
part 303 (Textile Rules). The FTC’s public Web site
offers a detailed description of products that are
subject to, or exempt from, these labeling
requirements. See Federal Trade Commission,
Threading Your Way Through the Labeling
Requirements Under the Textile and Wool Acts,
https://www.ftc.gov/tips-advice/business-center/
guidance/threading-your-way-through-labelingrequirements-under-textile.
2 See 16 CFR 300.4 (Wool Rules provision); 16
CFR 301.26 (Fur Rules provision); 16 CFR 303.30
(Textile Rules provision).
3 See 17 FR 6075, 6077 (July 8, 1952) (Fur Rule
provision 16 CFR 301.26); 24 FR 4480, 4484 (June
2, 1959) (Textile Rule provision 16 CFR 303.20); 29
FR 6622 (May 21, 1964) (Wool Rule provision 16
CFR 300.4).
4 In recent years, the FTC has issued
approximately 3,000 RNs per year.
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Agencies
[Federal Register Volume 82, Number 180 (Tuesday, September 19, 2017)]
[Rules and Regulations]
[Pages 43682-43690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19869]
=======================================================================
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FEDERAL TRADE COMMISSION
16 CFR Part 259
Guide Concerning Fuel Economy Advertising for New Automobiles
AGENCY: Federal Trade Commission.
ACTION: Final rule; adoption of revised guides.
-----------------------------------------------------------------------
[[Page 43683]]
SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'')
issues final amendments to the Guide Concerning Fuel Economy
Advertising for New Automobiles (``Fuel Economy Guide'' or ``Guide'')
to address advertising claims prevalent in the market and harmonize
with current Environmental Protection Agency (``EPA'') and National
Highway Traffic Safety Administration (``NHTSA'') fuel economy labeling
rules.
DATES: Effective October 19, 2017.
FOR FURTHER INFORMATION CONTACT: Hampton Newsome, (202) 326-2889,
Attorney, Division of Enforcement, Bureau of Consumer Protection,
Federal Trade Commission, Room C-9528, 600 Pennsylvania Avenue NW.,
Washington, DC 20580.
SUPPLEMENTARY INFORMATION:
I. Background
In 1975, the Commission issued the Fuel Economy Guide (16 CFR part
259) (40 FR 42003 (Sep. 10, 1975)) to prevent deceptive fuel economy
advertising for new automobiles and facilitate the use of fuel
efficiency information in advertising. To accomplish these goals, the
Guide advises advertisers to disclose established EPA fuel economy
estimates (e.g., miles per gallon or ``MPG'') whenever they make any
fuel economy claim based on those estimates. In addition, if
advertisers make claims based on non-EPA tests, the Guide advises them
to disclose EPA-derived information and provide details about the non-
EPA tests, such as the test's source, driving conditions, and vehicle
configurations.
The Guide helps advertisers avoid deceptive or unfair fuel economy
claims.\1\ It does not address the adequacy of EPA fuel economy test
procedures or the accuracy of EPA label content. Such issues fall
within the EPA's purview and are generally outside the Guide's scope.
---------------------------------------------------------------------------
\1\ The Guide does not have the force and effect of law and is
not independently enforceable. However, failure to comply with
industry guides may be an unfair or deceptive practice. The
Commission can take action if a business engages in unfair or
deceptive practices in violation of Section 5 of the FTC Act (15
U.S.C. 45(a)).
---------------------------------------------------------------------------
II. Guide Amendments
On June 6, 2016, the Commission sought comment on proposed
amendments to the Guide (81 FR 36216) (``2016 Notice''). Consistent
with the Commission's other guides, these proposed changes updated the
Guide's format with a list of general principles to help advertisers
avoid deceptive practices and detailed examples to illustrate those
principles. Additionally, the proposed amendments provided guidance on
claims involving EPA-based MPG ratings, non-EPA tests, vehicle
configuration, fuel economy range, and alternative fueled vehicles. The
Commission conducted Internet-based research exploring consumer
perceptions of certain fuel economy marketing claims.\2\ The Commission
based the proposed amendments on this research, as well as the EPA and
NHTSA regulations, which have been amended since the last Guide review.
The Commission received seven comments in response.\3\ Having reviewed
these comments, the Commission now publishes its final amendments to
the Guide.
---------------------------------------------------------------------------
\2\ Additional information about the study, including the
questionnaire and results, is available on the FTC Web site. See
https://www.ftc.gov/policy/public-comments/initiative-663.
\3\ The comments can be found at https://www.ftc.gov/policy/public-comments/initiative-663. They include: Consumer Federation of
America (CFA) and the Center for Auto Safety (CAS) (jointly)
(referred herein as ``CFA'') (#13); National Automobile Dealers
Association (NADA) (#11); Association of Global Automakers (Global
Automakers) #9; Auto Alliance (Alliance) (#10); Growth Energy (#8);
Isenberg (#6), and Hilandera (#7).
---------------------------------------------------------------------------
III. Issues Discussed in the Comments
As discussed below, the comments addressed several issues,
including the Guide's overall benefits, single mileage claims,
alternative fueled vehicle claims, non-EPA estimates in advertising,
and the Guide's format and wording.
A. Guide Benefits
The commenters generally supported the proposed Guide revisions.
For example, the Alliance noted that the amendments ``represent a
constructive revision.'' Commenter Hilandera added that the changes
``add transparency to advertising by local dealers and national media''
and help consumers ``evaluate whether or not to purchase a particular
car model.'' Commenters also commended the FTC consumer research. The
Global Automakers stated that the study results ``allow for better,
data-based evaluation of advertising statements, rather than
speculating on how consumers might interpret those statements.'' \4\
NADA noted the research lends ``support to several of the proposed
changes to the Guide.''
---------------------------------------------------------------------------
\4\ One commenter (Isenberg) noted that EPA and FTC should
improve fuel economy testing. However, as explained above, testing
accuracy falls outside of the Guide's scope.
---------------------------------------------------------------------------
B. Single Mileage Claims
Background: The previous Guide stated that, if an MPG claim
involves only city or only highway fuel economy, the advertisement need
only disclose the corresponding EPA city or highway estimate (16 CFR
259.2(a)(1)(ii)). In the 2016 Notice, the Commission did not propose
changing this approach. The Commission explained that single mileage
(i.e., single driving mode) claims are not likely to deceive consumers
as long as the advertisement clearly identifies the type of estimate
(e.g., city, highway, or combined), and the estimate matches the
content of the advertised claims. Moreover, consumers have seen such
estimates in advertising and on EPA labels for decades. In light of
this consumer experience, the Commission stated that it seems unlikely
that a single, clearly-identified mileage estimate would lead to
deception.
The 2016 Notice further explained that the FTC consumer study
supports the conclusion that consumers would not be deceived. For
example, when shown a single highway mileage claim (e.g., ``This car is
rated at 25 miles per gallon on the highway according to the EPA
estimate''), the vast majority of study respondents (74.6%) correctly
answered that the car would likely achieve that MPG in highway driving,
and the responses for alternative interpretations were low.\5\ The
results were similar when respondents were asked about a claim for a
combination of city and highway driving.\6\
---------------------------------------------------------------------------
\5\ See Q5c. The response results for other choices, with no
control, were: city rating (5.8%), combined rating (10.7%), unsure
(5.5%), and none of the above (3.5%).
\6\ The results for Q5d were, not accounting for a control:
combined (76.6%), highway (10%), city (4.2%), not sure (6.2%), and
none of the above (2.5%).
---------------------------------------------------------------------------
As the Commission explained, this research suggests that single
mileage claims do not deceive consumers as long as the claim specifies
the mode of driving involved (e.g., highway, combined, etc.). Given the
absence of evidence demonstrating that such claims are deceptive, the
Commission did not propose changes. Thus, consistent with the previous
Guide, the Commission proposed a provision (Sec. 259.4(c)) that
continued to advise marketers that EPA fuel economy estimates should
match the type of driving claims (e.g., city, highway, general, etc.)
appearing in the advertisements. For instance, if the advertiser makes
a city fuel economy claim, it should disclose the city rating.
Likewise, where an advertiser makes a general fuel economy claim, it
should disclose both the highway and city rating (or combined) to
prevent deception.
[[Page 43684]]
Comments: The comments differed about the proposed guidance for
single mileage claims. Some supported the Commission's proposal. For
instance, Global Automakers argued that the consumer research supports
the Commission's conclusion and that, after 40 years of federally-
mandated fuel economy information, ``consumers are very aware of the
significance of city vs. highway fuel economy estimates.'' However, CFA
strongly disagreed, arguing that a single city or highway MPG number is
deceptive.
According to CFA, advertisers' failure to disclose city or combined
ratings along with the highway rating constitutes a material omission
likely to mislead consumers. In CFA's view, because no consistent
relationship exists between city and highway estimates, consumers
cannot infer one of the ratings based solely on the other or predict
their own experience based on a single rating. Accordingly, CFA argued
that automobile advertisers should present both the highway and city
numbers, the combined, or all three in their fuel economy advertising.
As detailed below, in support of this position, CFA discussed the FTC's
research, submitted its own research, and highlighted additional
arguments supporting its contention that highway-only MPG claims are
misleading.
First, CFA addressed and critiqued the FTC research and associated
analysis, claiming that the Commission failed to highlight a key result
and that the study's question ordering led to biased responses.
Specifically, CFA argued the results of Question 6c reveal that a
single mileage claim is likely to deceive a significant minority of
consumers. The question presented respondents with a claim stating that
``This car is rated at 25 miles per gallon on the highway according to
the EPA estimate'' (Q6c) and then asked them whether they would expect
to achieve that rating if they used the advertised vehicle for all
their driving. According to the results, 20.7% of the respondents said
they would probably get 25 MPG overall for all their driving. CFA
contended this result demonstrates that, even if accompanied by a clear
and prominent disclaimer that applies only to highway driving, a single
mileage number misleads a significant minority of consumers into
overestimating the MPG they will achieve.
Additionally, CFA claimed the questions most relevant to the single
mileage claim appeared after ``respondents had already experienced a
number of questions emphasizing the distinction between highway and
city driving and estimates.'' \7\ CFA contended the appearance of the
city and highway mileage claims earlier in the questionnaire biased
responses to subsequent questions.
---------------------------------------------------------------------------
\7\ These prior questions included Q3b, Q3c-e, and Q5a.
---------------------------------------------------------------------------
CFA also highlighted its own research. Its national telephone
survey presented three questions. First, it showed respondents an
advertisement stating ``31 miles per gallon EPA highway estimate'' and
then asked whether they would be more or less likely to consider buying
the vehicle if that advertisement also stated ``19 miles per gallon EPA
city estimate.'' Overall, 43% of respondents said the city number would
affect their behavior (26% said it would make them less likely to buy
the car, while 17% said it would make them more likely). CFA asserted
that, because over two-fifths of the respondents said the city rating
disclosure would change their behavior, advertising should present both
numbers.
Second, the CFA survey asked respondents whether ``it is misleading
to allow advertisers to present only a vehicle's miles per gallon
estimate for highway driving.'' Before presenting this question, the
survey informed participants that ``[v]ehicles nearly always get more
miles per gallon, or higher mileage per gallon, on highway driving than
on city driving.'' Sixty four percent of respondents indicated that
presenting only the highway number in advertising is misleading. Third,
the CFA survey asked respondents which type of claim (i.e., highway and
city MPG, combined MPG, city MPG only, or highway MPG only) automobile
advertisers should be required to make in ``a fuel economy claim.'' In
response, 65% identified both highway and city, 23% pointed to a
combined estimate, 6% to the city rating, and only 3% to the highway
number.
Finally, CFA made several additional points. First, it explained
that consumers are less likely to drive on the highway than in the
city. It noted that, in approximating typical consumer driving
patterns, the EPA combined number assumes 45% highway driving and 55%
city driving. Second, it presented data demonstrating that little
correlation exists for the majority of vehicles between a vehicle's
highway MPG and its corresponding city or combined MPG. Given this
variability, CFA concluded that consumers cannot accurately infer a
model's city or combined MPG from a single highway rating, and those
who attempt to make such an inference would be misled by a single
mileage number.\8\ CFA further argued that, despite this variability,
FTC has concluded consumers have a particular understanding of the
relationship between city and highway ratings that leads them to
``impute their own expected mileage, or compare mileages, based on just
the highway number.'' CFA concluded that the city and highway MPG
figures together allow consumers better to assess, based on their own
personal experience, MPG differences among vehicles.
---------------------------------------------------------------------------
\8\ Likewise, CFA asserted that the appearance of the city
rating only in an advertisement is equally misleading. However, CFA
stated that ``[i]f the FTC were to allow only one number, which we
don't recommend, in order to avoid deception, they should only allow
just the city as that is the condition under which most people
drive, according to the EPA.''
---------------------------------------------------------------------------
Discussion: Consistent with the Commission's previous guidance, the
final Guide does not advise against advertisers making single mileage
claims.\9\ Neither the FTC study nor the comments provide clear
evidence that such claims are deceptive. As detailed in the 2016
Notice, the FTC research suggests single mileage claims do not lead
consumers to believe they will achieve that rating in other modes of
driving. In addition, as discussed below, such claims do not appear to
constitute a deceptive omission. While including MPG ratings for
multiple modes of driving in advertising (e.g., disclosure of both city
and highway MPG, or combined MPG) provides consumers with more
information about vehicle fuel economy, the FTC Act requires
advertisers to disclose only information that is necessary to prevent
consumers from being misled--not all information that consumers may
deem useful. As discussed below, the Commission disagrees with CFA's
interpretation of the FTC study results. In addition, CFA's own
research does not provide convincing evidence of deception.
---------------------------------------------------------------------------
\9\ The final Guide continues to advise against unqualified
mileage claims that fail to specify driving mode (e.g., 46 MPG)
(Sec. 259.4(c)).
---------------------------------------------------------------------------
First, the Commission disagrees with CFA's assertion that the
question Q6 responses demonstrate a single mileage claim deceives a
significant minority of consumers. Question Q6c specifically asked
respondents to read the statement ``This car is rated at 25 miles per
gallon on the highway according to the EPA estimate,'' and to choose a
closed-ended answer that ``best describes what you would expect to get
if you used this car for all your driving.'' Respondents chose from
several close-ended answers indicating whether their results, based on
their own driving, would be higher than, lower than, or similar to the
advertised rating. As CFA noted, 20.7%
[[Page 43685]]
of participants responded, ``I would probably get 25 miles per
gallon.'' In CFA's view, this figure demonstrates that the claim
deceived a significant minority because these participants believed the
highway rating would be achieved in all of their driving.
However, the responses to Q6 do not provide a reliable measure of
whether a highway-driving claim leads respondents to take away a false
or misleading claim about ratings for other driving modes. First,
because the survey asked respondents to consider their own driving
habits, some portion of this 20% may be consumers who drive a lot on
the highway. Those consumers' answers do not demonstrate that the
disclosure was deceptive. Second, because there is no control for these
particular results, some portion of the answers likely represents
random guessing, confusion about the question, or other factors absent
in a real-world advertising context.\10\ Thus, although comparing
responses across questions Q6a-c helps to gauge how respondents'
expectations for their own mileage may generally differ depending on
the claim, the responses to these individual questions, considered in
isolation, do not provide meaningful, specific measures of whether any
of these claims are false or misleading.
---------------------------------------------------------------------------
\10\ See, e.g., Diamond, Shari S. ``Reference Guide on Survey
Research.'' Reference Manual on Scientific Evidence, Third Edition,
Federal Judicial Center, 359-424, https://www.fjc.gov/sites/default/files/2015/SciMan3D01.pdf.
---------------------------------------------------------------------------
Second, contrary to the commenters' suggestions, the question
sequence in the FTC study is unlikely to have significantly impacted
the research results. According to CFA, questions involving different
driving modes appeared early in the survey. In its view, these
questions ``sensitized'' (or ``educated'') participants and caused them
to answer later questions about driving modes differently than they
would have if they had not been exposed to these prior questions. CFA
pointed to three examples of questions appearing early in the study
(Q3b, Q3c-e, and Q5a) that, in its view, tainted later results.
However, the questions themselves did not mention different driving
modes. Additionally, two of these three examples (Q3b and Q5a) were
open-ended questions, where participants typed their answers into a
blank text box.\11\ Though some respondents mentioned highway and city
driving in their typed responses, no respondent could see any answer
other than their own. Therefore, the questions could not have
sensitized study participants.
---------------------------------------------------------------------------
\11\ Terms listed in the questionnaire codebook (e.g.,
``highway'' in Question 18) may have suggested that these questions
presented respondents with specific answer choices (i.e., were
close-ended). In fact, the terms listed in the codebook are the code
categories used to sort respondents' individual answers to these
open-ended questions.
---------------------------------------------------------------------------
Additionally, the other example offered by the commenters, Q3c-3e
(each respondent answered only one of these), is unlikely to have
biased respondents. These questions displayed several closed-ended
answers, one of which read, ``This model gets up to 30 miles per gallon
depending on whether it's highway or city driving.'' The questions did
not specify whether one mode of driving yields different mileage than
the other.\12\ Despite the mention of highway and city driving, it is
unlikely the mention of these modes of driving biased respondents in
answering subsequent questions. For decades, miles per gallon ratings
for highway and city driving have been familiar concepts in
advertising. These ratings routinely appear in television advertising,
on Web sites, and on vehicle labels in showrooms. Thus, the reference
to modes of driving is not likely to be novel to typical consumers,
particularly the recent or prospective car purchasers who participated
in the study. Accordingly, the limited mention of driving modes in this
prior question is unlikely to have affected significantly respondents'
subsequent answers.
---------------------------------------------------------------------------
\12\ Although consumers may have their own preconceived notions
about the significance of different fuel economy ratings, the
question itself did not provide such information.
---------------------------------------------------------------------------
Third, several aspects of the CFA study reduce its utility in
addressing the question at hand. For instance, CFA's first study
question, QE1, asked whether adding a city rating to a highway rating
claim would change the likelihood participants would purchase a
particular car. As constructed, the question merely provides evidence
that the city mileage rating may be useful to the consumer's decision.
It does not demonstrate that the highway rating, standing alone, is
deceptive. In addition, the two other principal questions in the study
(questions QE2 and QE3) sought the respondents' personal opinions about
whether certain claims would be misleading or desirable. Such opinion
questions do not furnish reliable evidence about deception because they
rely on respondents' opinions about the claim's effects, as well as
their own understanding of what deception means. QE3 is additionally
problematic because it asks respondents only to identify disclosures
that ``auto advertisers should be required to include if making a fuel
economy claim,'' even though consumers could have various reasons other
than the prevention of deception for wanting advertisers to disclose
this information. Finally, the study's lack of control questions
reduces its usefulness, particularly given that CFA's questions seek
respondents' personal opinions, as discussed above.
Fourth, CFA argued that a highway mileage-only claim constitutes a
misleading omission because consumers are not aware that city ratings
can be substantially lower than highway numbers and, instead, believe a
city rating can be derived from the vehicle's highway number. As CFA
explained, no consistent relationship exists between city and highway
ratings among models on the market.\13\ Compared to the highway
ratings, city ratings can be much lower, slightly lower, and even
greater in some cases. These facts do not demonstrate that single
mileage claims are deceptive. In its Policy Statement on Deception, the
Commission explained that a ``misleading omission occurs when
qualifying information necessary to prevent a practice, claim,
representation, or reasonable expectation or belief from being
misleading is not disclosed.'' \14\ In this case, the FTC research
suggests that consumers are not misled by stand-alone highway mode
claims. As discussed above, the CFA research does not clearly indicate
otherwise. Additionally, there is no clear indication consumers
misperceive the relationship between city and highway ratings in a
particular way that renders otherwise truthful highway mileage claims
misleading. In fact, given the
[[Page 43686]]
wide, longstanding availability of highway and city mileage ratings in
the market, such misperception seems unlikely.
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\13\ CFA asserted that the FTC has concluded consumers have a
particular understanding of the relationship between city and
highway ratings that leads them to ``impute their own expected
mileage, or compare mileages, based on just the highway number.''
Although the Commission observed that many respondents expect the
combined MPG to be lower than highway (81 FR at 36220, n. 31), the
Commission did not intend to imply that consumers can impute the
combined or city MPG based on the highway number.
\14\ See FTC Policy Statement on Deception, appended to
Cliffdale Associates, Inc., 103 F.T.C. 110, 174 (1984) (https://www.ftc.gov/public-statements/1983/10/ftc-policy-statement-deception) (``Deception Policy Statement''). ``In determining
whether an omission is deceptive, the Commission will examine the
overall impression created by a practice, claim, or representation.
For example, the practice of offering a product for sale creates an
implied representation that it is fit for the purposes for which it
is sold. Failure to disclose that the product is not fit constitutes
a deceptive omission. . . . Omissions may also be deceptive where
the representations made are not literally misleading, if those
representations create a reasonable expectation or belief among
consumers which is misleading, absent the omitted disclosure.'' Id.
at n. 4.
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C. Alternative Fuels
Background: The proposed Guide amendments advise marketers that, if
a flexible fueled vehicle (FFV) advertisement mentions the vehicle's
flexible fuel capability and makes a fuel economy claim, it should
include the EPA fuel economy estimates for both gasoline and
alternative fuel operation. The proposed Guide further explains that,
without such disclosures, consumers may assume the advertised MPG
rating applies both to gasoline and alternative fuel operation.
Comments: The comments raised two concerns about this guidance.
First, the Alliance asked the Commission to clarify that advertisers
may provide only one fuel economy rating for FFVs if the advertisement
clearly states the rating applies to gasoline operation. In the
Alliance's view, the manufacturer should be able to highlight the
vehicle's rating under a single fuel without adding unnecessary wording
to disclose both fuel ratings. According to the Alliance, such claims
are not deceptive as long as ``the advertised rating cannot reasonably
be understood by the consumer to apply to both fuels.''
Second, the Global Automakers and the Alliance asked for
clarification that the proposed flex-fuel guidance does not apply to
plug-in hybrids (PHEVs), which are rated for both charge-depleting
(expressed in MPGe) and charge-sustaining operation. These commenters
noted that the Commission did not propose advising advertisers to
disclose MPGe in advertising for electric vehicles because it is
unclear whether such disclosures are essential to preventing deception
and whether consumers understand and use such disclosures.\15\
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\15\ Growth Energy also asked for clarification that the
proposed Guide amendments do not create any changes to the EPA-
required labels. They do not. In addition, Growth Energy asked
whether the Guide ``in any way limit truthful and substantiated
statements an advertiser may make regarding the benefits of FFVs,''
such as environmental benefits. The Guide does not specifically
address claims outside of the fuel economy context. However,
marketers may wish to consult additional Commission guidance, such
as the Guides for the Use of Environmental Marketing Claims (Green
Guides) (16 CFR part 260).
---------------------------------------------------------------------------
Discussion: The Commission has modified the FFV guidance to address
the Alliance's suggestion regarding qualifications for FFV gasoline
mileage claims. We agree that a clear and prominent disclosure limited
to gasoline operation may obviate the need to disclose the vehicle's
alternative fuel mileage. The final amendments contain language
acknowledging this possibility.\16\ In addition, in response to
comments about PHEVs, the Commission has modified the final Guide to
clarify the example does not apply to such vehicles.
---------------------------------------------------------------------------
\16\ See Sec. 259.4(j).
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D. Non-EPA Estimates
Background: Since its initial publication, the Guide has addressed
fuel economy claims based on non-EPA tests. In issuing the Guide in
1975, the Commission explained that ``the use in advertising of fuel
economy results obtained from disparate test procedures may unfairly
and deceptively deny to consumers information which will enable them to
compare advertised automobiles on the basis of fuel economy.'' \17\ The
current Guide advises advertisers to provide several disclosures
whenever they make a fuel economy claim based on non-EPA information.
Specifically, Sec. 259.2(c) states that fuel economy claims based on
such information should: (1) Disclose the corresponding EPA estimates
with more prominence than other estimates; (2) identify the source of
the non-EPA information; and (3) disclose how the non-EPA test differs
from the EPA test in terms of driving conditions and other relevant
variables.
---------------------------------------------------------------------------
\17\ 40 FR 42003 (Sept. 10, 1975).
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In its 2016 Notice, the Commission did not propose changing this
approach. The Commission identified no evidence that fuel economy
claims are deceptive if accompanied by the clear and prominent
disclosures described above. Therefore, consistent with the previous
Guide, the proposed Guide recommended specific disclosures related to
non-EPA claims to reduce the possibility of deception.\18\ Finally, the
previous Guide addressed the relative size and prominence of fuel
economy claims based on non-EPA and EPA estimates in television, radio,
and print advertisements. The Commission proposed retaining this
guidance but also clarifying that it applies to any advertising medium
(not solely television, radio, and print).
---------------------------------------------------------------------------
\18\ The guidance assumes that the advertised non-EPA estimates
are not identical to the EPA estimates.
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Comments: Though the comments generally supported the guidance on
non-EPA estimates, they raised two issues. First, the Alliance
explained that, although such claims are not common, advertisers
believe actual driving results achieved under controlled conditions
other than the EPA testing methodology may be valuable to consumers in
some circumstances. Both the Alliance and the Global Automakers noted
that, under limited conditions, manufacturers may want to use non-EPA
claims prior to a new vehicle launch when the formal EPA estimates are
not yet available. In this case, a manufacturer may give its projection
of the anticipated EPA estimates based on its testing using the EPA
methodology. If such estimates are clearly identified as projections,
the commenters asserted they are not deceptive.
Second, Global Automakers noted that, in some cases, a manufacturer
may wish to include actual on-road test results from reputable
organizations to provide additional information regarding the vehicle's
fuel economy. In explaining the road test procedures and conditions,
according to Global Automakers, it should be sufficient to simply state
that the data is generated through on-road tests and specify the
organization that conducted the tests, without providing extensive
details regarding the test procedures and conditions.
Discussion: In the final Guide, the Commission has not changed the
non-EPA claims section. Specifically, the final Guide does not address
the use of ``preliminary'' test results in advertising. It is not clear
how consumers interpret such claims. In addition, the Commission
disagrees with Global Automakers regarding disclosures for
advertisements containing ``on-road'' test results. Without the full
set of disclosures recommended by the Guide, it is not clear whether
consumers will understand that such ``road test'' results are
inconsistent with the EPA-approved ratings. Given this uncertainty as
to what consumers would take away from preliminary test results in
advertising, the Commission has decided not to alter the non-EPA claims
section.
E. Guide Format and Language
Background: The Commission proposed improving the Guide's format by
making it consistent with recently amended FTC guides, such as the
Guides for the Use of Environmental Marketing Claims.\19\ Under this
approach, the Guide includes a list of general principles to help
advertisers avoid deceptive practices with detailed examples to
illustrate those principles.
---------------------------------------------------------------------------
\19\ See Guides for the Use of Environmental Marketing Claims
(Green Guides) (16 CFR part 260).
---------------------------------------------------------------------------
Comments: The commenters generally agreed with, or did not comment
on, the revised format. CFA, however, raised concerns about the
language used to
[[Page 43687]]
identify deceptive claims in the proposed Guide examples.\20\ It noted
that, the conclusions in several examples state that the claim in
question is ``likely'' to be deceptive. CFA noted this approach
conflicts with the Green Guides, which generally states the example
claims ``are'' deceptive. In the commenters' view, the weaker language
in the reformatted Guide serves neither businesses, which seek clear,
firm guidance, nor consumers who may fall victim to unscrupulous
businesses that make claims inconsistent with the Guides and then point
to the Guides' vagueness as a defense. CFA further stated that the lack
of clarity hampers the enforcement efforts of state and local consumer
protection agencies and private attorneys.\21\
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\20\ The Alliance agreed with the Commission's decision not to
provide specific guidance related to fuel economy claims in limited-
format advertising. Interested parties may contact the FTC to
discuss specific limited-format situations as they arise. Further
developments in this area may suggest the need for the development
of additional guidelines in the future.
\21\ CFA also recommended that the Commission replace the phrase
``estimated MPG'' with ``fuel economy claim'' in proposed Sec.
259.3. The Commission has made this change to clarify the guidance's
breadth. In addition, CFA recommended the section clarify that if a
MPG number appears in an advertisement, the qualifying information
recommended by the Guides (e.g., EPA estimate) should be clearly,
conspicuously, and prominently displayed adjacent to the MPG number.
The final Guide does not include such a change because the guidance
already states such disclosures should appear in ``close proximity''
to the claim.
---------------------------------------------------------------------------
Discussion: The Commission agrees that the guidance should be
consistent with similar documents such as the Green Guides (16 CFR part
260) and Endorsement Guides (16 CFR part 255). Because these guides
reflect the Commission's understanding of how consumers are likely to
interpret the applicable claims, it is reasonable to follow a
consistent format for the examples in each. The guides set forth
general principles, together with instructive examples, designed to
help marketers avoid deceptive claims. However, as noted in the guides
themselves, determinations regarding particular claims will depend on
the specific advertisement at issue.\22\ Nevertheless, to ensure
consistency with other guidance and avoid confusion, the Commission has
modified the examples in the final Guide consistent with the
commenters' suggestion.
---------------------------------------------------------------------------
\22\ In determining whether an advertisement, including its
format, misleads consumers, the Commission considers the overall
``net impression'' it conveys. See Deception Policy Statement, 103
F.T.C. at 175.
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List of Subjects in 16 CFR Part 259
Advertising, Fuel economy, Trade practices.
Final Amendments
0
For the reasons set forth in the preamble, the Commission revises 16
CFR part 259 to read as follows:
PART 259--GUIDE CONCERNING FUEL ECONOMY ADVERTISING FOR NEW
AUTOMOBILES
Sec.
259.1 Purpose.
259.2 Definitions.
259.3 Qualifications and disclosures.
259.4 Advertising guidance.
Authority: 15 U.S.C. 41-58.
Sec. 259.1 Purpose.
The Guide in this part contains administrative interpretations of
laws enforced by the Federal Trade Commission. Specifically, the Guide
addresses the application of Section 5 of the FTC Act (15 U.S.C. 45) to
the use of fuel economy information in advertising for new automobiles.
This guidance provides the basis for voluntary compliance with the law
by advertisers and endorsers. Practices inconsistent with this Guide
may result in corrective action by the Commission under Section 5 if,
after investigation, the Commission has reason to believe that the
practices fall within the scope of conduct declared unlawful by the
statute. The Guide sets forth the general principles that the
Commission will use in such an investigation together with examples
illustrating the application of those principles. The Guide does not
purport to cover every possible use of fuel economy in advertising.
Whether a particular advertisement is deceptive will depend on the
specific advertisement at issue.
Sec. 259.2 Definitions.
For the purposes of this part, the following definitions shall
apply:
Alternative fueled vehicle. Any vehicle that qualifies as a covered
vehicle under part 309 of this chapter.
Automobile. Any new passenger automobile, medium duty passenger
vehicle, or light truck for which a fuel economy label is required
under the Energy Policy and Conservation Act (42 U.S.C. 32901 et seq.)
or rules promulgated thereunder, the equitable or legal title to which
has never been transferred by a manufacturer, distributor, or dealer to
an ultimate purchaser or lessee. For the purposes of this part, the
terms ``vehicle'' and ``car'' have the same meaning as ``automobile.''
Dealer. Any person located in the United States or any territory
thereof engaged in the sale or distribution of new automobiles to the
ultimate purchaser.
EPA. The U.S. Environmental Protection Agency.
EPA city fuel economy estimate. The city fuel economy determined in
accordance with the city test procedure as defined and determined
pursuant to 40 CFR part 600, subpart D.
EPA combined fuel economy estimate. The fuel economy value
determined for a vehicle (or vehicles) by harmonically averaging the
city and highway fuel economy values, weighted 0.55 and 0.45
respectively, determined pursuant to 40 CFR part 600, subpart D.
EPA driving range estimate. An estimate of the number of miles a
vehicle will travel between refueling as defined and determined
pursuant to 40 CFR part 600, subpart D.
EPA fuel economy estimate. The average number of miles traveled by
an automobile per volume of fuel consumed (i.e., Miles-Per-Gallon
(``MPG'') rating) as calculated under 40 CFR part 600, subpart D.
EPA highway fuel economy estimate. The highway fuel economy
determined in accordance with the highway test procedure as defined and
determined pursuant to 40 CFR part 600, subpart D.
Flexible fueled vehicle. Any motor vehicle (or motor vehicle
engine) engineered and designed to be operated on any mixture of two or
more different fuels.
Fuel. (1) Gasoline and diesel fuel for gasoline- or diesel-powered
automobiles;
(2) Electricity for electrically-powered automobiles;
(3) Alcohol for alcohol-powered automobiles;
(4) Natural gas for natural gas-powered automobiles; or
(5) Any other fuel type used in a vehicle for which EPA requires a
fuel economy label under 40 CFR part 600, subpart D.
Manufacturer. Any person engaged in the manufacturing or assembling
of new automobiles, including any person importing new automobiles for
resale and any person who acts for, and is under the control, of such
manufacturer, assembler, or importer in connection with the
distribution of new automobiles.
Model type. A unique combination of car line, basic engine, and
transmission class as defined by 40 CFR part 600, subpart D.
Ultimate purchaser or lessee. The first person, other than a dealer
purchasing in his or her capacity as a dealer, who
[[Page 43688]]
in good faith purchases a new automobile for purposes other than resale
or leases such vehicle for his or her personal use.
Vehicle configuration. The unique combination of automobile
features, as defined in 40 CFR part 600.
Sec. 259.3 Qualifications and disclosures.
To prevent deceptive claims, qualifications and disclosures should
be clear, prominent, and understandable. To make disclosures clear and
prominent, marketers should use plain language and sufficiently large
type for a person to see and understand them, should place disclosures
in close proximity to the qualified claim, and should avoid making
inconsistent statements or using distracting elements that could
undercut or contradict the disclosure. The disclosures should also
appear in the same format as the claim. For example, for television
advertisements, if the fuel economy claim appears in the video, the
disclosure recommended by this Guide should appear in the visual
format; if the fuel economy claim is audio, the disclosure should be in
audio.
Sec. 259.4 Advertising guidance.
(a) Misrepresentations. It is deceptive to misrepresent, directly
or by implication, the fuel economy or driving range of an automobile.
(b) General fuel economy claims. General unqualified fuel economy
claims, which do not reference a specific fuel economy estimate, likely
convey a wide range of meanings about a vehicle's fuel economy relative
to other vehicles. Such claims, which inherently involve comparisons to
other vehicles, can mislead consumers about the vehicle class included
in the comparison, as well as the extent to which the advertised
vehicle's fuel economy differs from other models. Because it is highly
unlikely that advertisers can substantiate all reasonable
interpretations of these claims, advertisers making general fuel
economy claims should disclose the advertised vehicle's EPA fuel
economy estimate in the form of the EPA MPG rating.
Example 1: A new car advertisement states: ``This vehicle gets
great mileage.'' The claim is likely to convey a variety of
meanings, including that the vehicle has a better MPG rating than
all or almost all other cars on the market. However, the advertised
vehicle's EPA fuel economy estimates are only slightly better than
the average vehicle on the market. Because the advertiser cannot
substantiate that the vehicle's rating is better than all or almost
all other cars on the market, the advertisement is deceptive. In
addition, the advertiser may not be able to substantiate other
reasonable interpretations of the claim. To avoid deception, the
advertisement should disclose the vehicle's EPA fuel economy
estimate (e.g., ``EPA-estimated 27 combined MPG'').
Example 2: An advertisement states: ``This car gets great gas
mileage compared to other compact cars.'' The claim is likely to
convey a variety of meanings, including that the vehicle gets better
gas mileage than all or almost all other compact cars. However, the
vehicle's EPA fuel economy estimates are only slightly better than
average compared to other models in its class. Because the
advertiser cannot substantiate that the vehicle's rating is better
than all or almost all other compact cars, the advertisement is
deceptive. In addition, the advertiser may not be able to
substantiate other reasonable interpretations of the claim. To
address this problem, the advertisement should disclose the
vehicle's EPA fuel economy estimate.
(c) Matching the EPA estimate to the claim. EPA fuel economy
estimates should match the mode of driving claim appearing in the
advertisement. If they do not, consumers are likely to associate the
stated fuel economy estimate with a different type of driving.
Specifically, if an advertiser makes a city or a highway fuel economy
claim, it should disclose the corresponding EPA-estimated city or
highway fuel economy estimate. If the advertiser makes both a city and
a highway fuel economy claim, it should disclose both the EPA estimated
city and highway fuel economy rating. If the advertiser makes a general
fuel economy claim without specifically referencing city or highway
driving, it should disclose the EPA combined fuel economy estimate, or,
alternatively, both the EPA city and highway fuel economy estimates.
Example 1: An automobile advertisement states that model ``XYZ
gets great gas mileage in town.'' However, the advertisement does
not disclose the EPA city fuel economy estimate. Instead, it only
discloses the EPA highway fuel economy estimate, which is higher
than the model's city estimate. This claim likely conveys to a
significant proportion of reasonable consumers that the highway
estimate disclosed in the advertisement applies to city driving.
Thus, the advertisement is deceptive to consumers. To remedy this
problem, the advertisement should disclose the EPA city fuel economy
estimate (e.g., ``32 MPG in the city according to the EPA
estimate'').
Example 2: A new car advertisement states that model ``XZA
gives you great gas mileage'' but only provides the EPA highway fuel
economy estimate. Given the likely inconsistency between the general
fuel economy claim, which does not reference a specific type of
driving, and the disclosed EPA highway estimate, the advertisement
is deceptive to consumers. To address this problem, the
advertisement should disclose the EPA combined estimate (e.g., ``37
MPG for combined driving according to the EPA estimate''), or both
the EPA city and highway fuel economy estimates.
Example 3: An advertisement states: ``according to EPA
estimates, new cars in this class are rated at between 20 and 32
MPG, while the EPA estimate for this car is an impressive 35 MPG
highway.'' The advertisement is likely to imply that the 20 to 32
MPG range and 35 MPG estimate are comparable. In fact, the ``20 and
32 MPG'' range reflects EPA city estimates. Therefore, the
advertisement is deceptive. To address this problem, the
advertisement should only provide an apples-to-apples comparison--
either using the highway range for the class or using the city
estimate for the advertised vehicle.
(d) Identifying fuel economy and driving range ratings as
estimates. Advertisers citing EPA fuel economy or driving range figures
should disclose that these numbers are estimates. Without such
disclosures, consumers may incorrectly assume that they will achieve
the mileage or range stated in the advertisement. In fact, their actual
mileage or range will likely vary for many reasons, including driving
conditions, driving habits, and vehicle maintenance. To address
potential deception, advertisers may state that the values are ``EPA
estimate(s),'' or use equivalent language that informs consumers that
they will not necessarily achieve the stated MPG rating or driving
range.
Example 1: An automobile manufacture's Web site states, without
qualification, ``This car gets 40 MPG on the highway.'' The claim
likely conveys to a significant proportion of reasonable consumers
that they will achieve 40 MPG driving this vehicle on the highway.
The advertiser based its claim on an EPA highway estimate. However,
EPA provides that estimate primarily for comparison purposes--it
does not necessarily reflect real world driving results. Therefore,
the claim is deceptive. In addition, the use of the term ``gets,''
without qualification, may lead some consumers to believe not only
that they can, but will consistently, achieve the stated mileage. To
address these problems, the advertisement should clarify that the
MPG value is an estimate by stating ``EPA estimate'' or equivalent
language.
(e) Disclosing EPA test as source of fuel economy and driving range
estimates. Advertisers citing any EPA fuel economy or driving range
figures should identify EPA as the source of the test so consumers
understand that the estimate is comparable to EPA estimates for
competing models. Doing so prevents deception by ensuring that
consumers do not associate the claimed ratings with a test other than
the EPA-required procedures. Advertisers may avoid deception by stating
that the values are ``EPA estimate(s),'' or equivalent language that
identifies the EPA test as the source.
[[Page 43689]]
Example 1: A radio commercial for the ``XTQ'' car states that
the vehicle ``is rated at an estimated 28 MPG in the city'' but does
not disclose that an EPA test is the source of this MPG estimate.
This advertisement may convey that the source of this test is an
entity other than EPA. To avoid deception, the advertisement should
state that the MPG figures are EPA estimates.
(f) Specifying driving modes for fuel economy estimates. If an
advertiser 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). Advertisements failing to do
so can deceive consumers who 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. Thus, such consumers
may believe the model's fuel economy rating is higher than it actually
is.
Example 1: A television commercial for the car model ``ZTA''
informs consumers that the ZTA is rated at ``25 miles per gallon
according to the EPA estimate'' but does not disclose whether this
number is a highway, city, or combined estimate. The advertisement
likely conveys to a significant proportion of reasonable consumers
that the 25 MPG figure reflects normal driving (i.e., a combination
of city and highway driving), not the highway rating as intended by
the advertiser. In fact, the 25 MPG rating is the vehicle's EPA
highway estimate. Therefore, the advertisement is deceptive.
(g) Within vehicle class comparisons. If an advertisement contains
an express comparative fuel economy claim where the relevant comparison
is to any group or class, other than all available automobiles, the
advertisement should identify the group or class of vehicles used in
the comparison. Without such qualifying information, many consumers are
likely to assume that the advertisement compares the vehicle to all new
automobiles.
Example 1: An advertisement claims that sports car X ``outpaces
other cars' gas mileage.'' The claim likely conveys a variety of
meanings to a significant proportion of reasonable consumers,
including that this vehicle has a higher MPG rating than all or
almost all other vehicles on the market. Although the vehicle's MPG
rating compares favorably to other sports cars, its fuel economy is
only better than roughly half of all new automobiles on the market.
Therefore, the claim is deceptive.
(h) Comparing different model types. Fuel economy estimates are
assigned to specific model types under 40 CFR part 600, subpart D
(i.e., unique combinations of car line, basic engine, and transmission
class). Therefore, advertisers citing MPG ratings for certain models
should ensure that the rating applies to the model type depicted in the
advertisement. It is deceptive to state or imply that a rated fuel
economy figure applies to a vehicle featured in an advertisement if the
estimate does not apply to vehicles of that model type.
Example 1: A manufacturer's advertisement states that model
``PDQ'' gets ``great gas mileage'' but depicts the MPG numbers for a
similar model type known as the ``Econo-PDQ.'' The advertisement is
likely to convey that the claimed MPG rating applies to all types of
the PDQ model. However, the ``Econo-PDQ'' has a better fuel economy
rating than other types of the ``PDQ'' model. Therefore, the
advertisement is deceptive.
(i) ``Up to'' claims. Advertisers should avoid using the term ``up
to'' without adequate explanatory language if they intend to
communicate that certain versions of a model (i.e., model types) are
rated at a stated fuel economy estimate. A significant proportion of
reasonable consumers are likely to interpret such claims to mean that
the stated MPG can be achieved if the vehicle is driven under certain
conditions. Therefore, to address the risk of deception, advertisers
should qualify the claim by clearly and prominently disclosing the
stated MPG applies to a particular vehicle model type.
Example 1: An advertisement states, without further
explanation, that a vehicle model VXR will achieve ``up to 40 MPG on
the highway.'' The advertisement is based on a particularly
efficient type of this model, with specific options, with an EPA
highway estimate of 40 MPG. However, other types of model VXR have
lower EPA MPG estimates. A significant proportion of reasonable
consumers likely interpret the ``up to'' claim as applying to all
VXR model types. Therefore, the advertisement is deceptive. To
address this problem, the advertisement should clearly and
prominently disclose that the 40 MPG rating does not apply to all
model types of the VXR or use language other than ``up to'' that
better conveys the claim.
(j) Claims for flexible-fueled vehicles. Advertisements for
flexible-fueled vehicles should not mislead consumers about the
vehicle's fuel economy when operated with alternative fuel. If an
advertisement for a flexible-fueled vehicle (other than a plug-in
hybrid electric vehicle) mentions the vehicle's flexible-fuel
capability and makes a fuel economy claim, it should clearly and
prominently qualify the claim to identify the type of fuel used.
Without such qualification, consumers are likely to take away that the
stated fuel economy estimate applies to both gasoline and alternative
fuel operation.
Example 1: An automobile advertisement states: ``This flex-fuel
powerhouse has a 30 MPG highway rating according to the EPA
estimate.'' The advertisement likely implies that the 30 MPG rating
applies to both gasoline and alternative fuel operation. In fact,
the ethanol EPA estimate for this vehicle is 25 MPG. Therefore, the
advertisement is deceptive. To address this problem, the
advertisement could clearly and prominently qualify the claim or
disclose the MPG ratings for both gasoline and alternative fuel
operation.
(k) General driving range claims. General unqualified driving range
claims, which do not reference a specific driving range estimate, are
difficult for consumers to interpret and likely convey a wide range of
meanings about a vehicle's range relative to other vehicles. Such
claims, which inherently involve comparisons to other vehicles, can
mislead consumers about the vehicle class included in the comparison as
well as the extent to which the advertised vehicle's driving range
differs from other models. Consumers may take away a range of
reasonable interpretations from these claims. To avoid possible
deception, advertisers making general driving range claims should
disclose the advertised vehicle's EPA driving range estimate.
Example 1: An advertisement for an electric vehicle states:
``This car has a great driving range.'' This claim likely conveys a
variety of meanings, including that the vehicle has a better driving
range than all or almost all other electric vehicles. However, the
EPA driving range estimate for this vehicle is only slightly better
than roughly half of all other electric vehicles on the market.
Because the advertiser cannot substantiate that the vehicle's
driving range is better than all or almost all other electric
vehicles, the advertisement is deceptive. In addition, the
advertiser may not be able to substantiate other reasonable
interpretations of the claim. To address this problem, the
advertisement should disclose the vehicle's EPA driving range
estimate (e.g., ``EPA-estimated range of 70 miles per charge'').
(l) Use of non-EPA estimates--(1) Disclosure content. Given
consumers' exposure to EPA estimated fuel economy values over the last
several decades, fuel economy and driving range estimates derived from
non-EPA tests can lead to deception if consumers understand such
estimates to be fuel economy ratings derived from EPA-required tests.
Accordingly, advertisers should avoid such claims and disclose the EPA
fuel economy or driving range estimates. However, if an advertisement
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:
[[Page 43690]]
(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.
Such conditions and variables may include, but are not limited to, road
or dynamometer test, average speed, range of speed, hot or cold start,
temperature, and design or equipment differences.
(2) Disclosure format. The Commission regards the following as
constituting ``substantially more prominence'':
(i) For visual disclosures on television. If the fuel economy
claims appear only in the visual portion, the EPA figures should appear
in numbers twice as large as those used for any other estimate, and
should remain on the screen at least as long as any other estimate.
Each EPA figure should 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.
(ii) For audio disclosures. For radio and television advertisements
in which any other estimate is used only in the audio, equal prominence
should be given to the EPA figures. The Commission will regard the
following as constituting equal prominence: 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.
(iii) For print and Internet disclosures. The EPA figures should
appear 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. They may not appear in a footnote
unless all references to fuel economy appear in a footnote.
Example 1: An Internet advertisement states: ``Independent
driving experts took the QXT car for a weekend spin and managed to
get 55 miles-per-gallon under a variety of driving conditions.'' It
does not disclose the actual EPA fuel economy estimates, nor does it
explain how conditions during the ``weekend spin'' differed from
those under the EPA tests. This advertisement likely conveys that
the 55 MPG figure is the same or comparable to an EPA fuel economy
estimate for the vehicle. This claim is deceptive because it fails
to disclose that fuel economy information is based on a non-EPA
test, the source of the non-EPA test, the EPA fuel economy estimates
for the vehicle, and all driving conditions or vehicle
configurations simulated by the non-EPA test that are different from
those used in the EPA test.
Example 2: An advertisement states: ``The XZY electric car has
a driving range of 110 miles per charge in summer conditions
according to our expert's test.'' It provides no additional
information regarding this driving range claim. This advertisement
likely conveys that this 110-mile driving range figure is comparable
to an EPA driving range estimate for the vehicle. The advertisement
is deceptive because it does not clearly state that the test is a
non-EPA test; it does not provide the EPA estimated driving range;
and it does not explain how conditions referred to in the
advertisement differed from those under the EPA tests. Without this
information, consumers are likely to confuse the claims with range
estimates derived from the official EPA test procedures.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2017-19869 Filed 9-18-17; 8:45 am]
BILLING CODE 6750-01-P