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Guide Concerning Fuel Economy Advertising for New Automobiles

American Government Special Collections Reference Desk

American Government

Guide Concerning Fuel Economy Advertising for New Automobiles

Donald S. Clark
Federal Trade Commission
19 September 2017


[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.

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[[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.
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    \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).
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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.''
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    \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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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\
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    \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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    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.
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    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).
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
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    \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

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