2011-13519. Guide Concerning Fuel Economy Advertising for New Automobiles

AGENCY:

Federal Trade Commission.

ACTION:

Postponement of amendment of guide.

SUMMARY:

The Federal Trade Commission (“FTC” or “Commission”) gives notice that it is postponing any amendments to its Guide Concerning Fuel Economy Advertising for New Automobiles (“Fuel Economy Guide” or “Guide”) pending completion of ongoing review by the Environmental Protection Agency (“EPA”) and the National Highway Traffic Safety Administration (“NHTSA”) of current fuel economy labeling requirements and the Commission's accelerated regulatory review of its own Labeling Requirements for Alternative Fuels and Alternative Fueled Vehicles Rule (“Alternative Fuels Rule”).

DATES:

This action is effective as of June 1, 2011.

ADDRESSES:

Requests for copies of this notice should be sent to the Consumer Response Center, Room 113, Federal Trade Commission, 600 Pennsylvania Ave., NW., Washington, DC 20580. The notice is also available on the Internet at the Commission's Web site, http://www.ftc.gov.

FOR FURTHER INFORMATION CONTACT:

Hampton Newsome at [phone], Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

The Commission adopted the Fuel Economy Guide ^[1] in 1975 to prevent deceptive fuel economy advertising for new automobiles and to facilitate the use of fuel economy information in such advertising. The Guide helps advertisers of new automobiles avoid making unfair or deceptive claims.^[2] To accomplish this goal, the Fuel Economy Guide advises marketers to disclose established fuel economy estimates (e.g., miles per gallon or “mpg”) as determined by the mandatory EPA testing protocols. If advertisers make fuel economy claims based on non-EPA tests, the Guide directs them to disclose EPA-derived fuel economy information with substantially more prominence than other estimates ^[3] and provide details about the non-EPA tests such as the source of the test, driving conditions, and vehicle configurations.

On April 28, 2009,^[4] the Commission published a Notice of Proposed Rulemaking (“NPRM”) soliciting comments on proposed amendments to the Guide. The Commission's proposed revisions to the Guide included: (1) updating the Guide's definitions and guidance to reflect the new “combined” fuel economy estimates established by the EPA's fuel economy labeling requirements; and (2) extending advertising guidance to alternative fueled vehicles based on the Commission's Alternative Fuels Rule.^[5] The Commission received eight comments from sources including the automobile manufacturing industry, local government, and consumers groups.^[6] Generally, the comments supported retaining the Guide and recognized its benefits. Several, however, noted inconsistencies between calculations and standards found in the FTC's Alternative Fuels Rule and those established by the EPA's fuel economy labeling requirements.^[7]

On September 28, 2009, during the course of the Commission's regulatory review for the Guide, EPA and NHTSA announced their “Proposed Rulemaking To Establish Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards.” ^[8] In that Federal Register Notice, the EPA and the NHTSA announced the creation of a “National Program * * * to reduce greenhouse gas emission and to improve fuel economy.” ^[9] To fulfill the statutory requirements of the Energy Independence and Security Act ^[10] and to conform with the goals of the National Program, the agencies are developing labels that “reflect fuel economy and greenhouse gas and other emissions * * * [and also include] a rating system that would make it easy for consumers to compare the fuel economy and greenhouse gas and other emissions of automobiles at the point of purchase.” ^[11] In addition, the agencies proposed creating their own label for alternative fueled vehicles, and solicited comment on proposed label formats in September 2010.^[12]

The EPA's proposed rulemaking impacts both the Commission's Alternative Fuels Rule and its Fuel Economy Guide. That rulemaking will increase the coverage of EPA's new fuel economy labels to include alternative fueled vehicles, many of which would also have additional labeling requirements under the existing Alternative Fuels Rule. Therefore, in a separate notice published today, the Commission is accelerating its review of the Alternative Fuels Rule to reduce the potential for conflicting or redundant labeling requirements. The result of the Commission's review also may affect the guidance that the Commission would issue to new vehicle advertisers in the FTC's Fuel Economy Guide. Therefore, the Commission has determined that it would be premature to publish amended guidance concerning fuel economy advertising until the EPA and the NHTSA conclude their regulatory reviews and the Commission completes its Regulatory Review of the Alternative Fuels Rule. The Commission continues to believe that guidance in this area would be beneficial but recognizes the value in issuing consistent government guidance.

By direction of the Commission.

Donald S. Clark,

Secretary.

Footnotes

1.  16 CFR part 259.

2.  The Commission issues industry guides, such as the Fuel Economy Guide, to help marketers avoid making advertising claims that are unfair or deceptive under Section 5 of the FTC Act, 15 U.S.C. 45. Guides such as these are administrative interpretations of the law. Therefore, they do not have the force and effect of law and are not independently enforceable. The Commission, however, can take action under the FTC Act if a marketer makes a fuel economy claim inconsistent with the Guide. In any such enforcement action, the Commission must prove that the challenged act or practice is unfair or deceptive.

3.  For audio advertisements, EPA fuel economy estimates must be given equal prominence as non-EPA estimates. 16 CFR 259.2(c)(1).

4.  74 FR 19148.

5.  16 CFR Part 309.

6.  Comments are available at: http://www.ftc.gov/​os/​comments/​fueleconadguidepropamend/​index.shtm.

7.  40 CFR Part 600, subpart D.

8.  74 FR 49454 (Sep. 28, 2009).

9.  Id.

10.  Public Law 110-140.

11.  74 FR at 49739.

12.  75 FR 58078 (Sept. 23, 2010).