Guide Concerning Fuel Economy Advertising For New Automobiles

16 CFR Part 259 · Guides · in the Code of Federal Regulations 1976-1995 (20 annual editions)

Scanned CFR pages, OCR text may contain errors; the linked Library of Congress PDF is the authority. Not legal advice; not affiliated with the FTC. These rules and guides are historical: most were rescinded or replaced, so do not assume any is in force.

Latest edition: Library of Congress, 1995 CFR · Earliest edition: 1976 CFR

Text (1995 edition, OCR)

Federal Trade Commission

(4) Penalty, interest, or carrying
charges, if any, clearly and separately
identified;

(5) Purchases sent on approval, if
any, Clearly and separately identified.

(e) All industry product invoices
should:

(1) Be dated, numbered or adequately
identified, and should show customer’s
account number, if any;

(2) Show a clear and readable descrip-
tion of each item or unit. If abbrevia-
tions are used which are not readily
understandable, the invoice should
have thereon or attached thereto a
clear interpretation of said abbrevia-
tions;

(3) Show a price for each item, and
clearly state terms of sale and amount
of discount, if any;

(4) Clearly show the time period for
approval orders, by showing specific
opening and termination dates.

NoTe: This section is meant to suggest
some basic information that should be pro-
vided for the billing process although the
seller may prefer to use some other system
or method which furnishes essentially the
same information as provided by this sec-
tion. Further, this section does not relieve
an industry member of his responsibilities to
comply with the Fair Credit Billing Act, 15
U.S.C. 1601, and law book sellers should note
with particularity section 161 of that Act
dealing with ‘Correction of Billing Errors’’.

(Guide 15]

$256.16 Added
subject matter.
The adding of volumes or other mate-
rials, the overall content of which is
not substantially germane to the sub-
ject matter of the basic work, con-
stitutes an unfair trade practice.
(Guide 16]

materials—germane

§256.17 Misrepresentations (general).

An industry product should not be
advertised, published or otherwise rep-
resented in any manner which may
have the capacity and tendency or ef-
fect of misleading or deceiving pur-
chasers or prospective purchasers con-
cerning the grade, quality, material,
size, contents, authorship, editorship,
use, value, price, origin, preparation,
manufacture or date of publication or
copyright of any industry product or of
any supplementation thereto, or the
current or up-to-date character there-

§ 259.1

of, or concerning any service offered in
connection therewith, or in any other
material respect. [Guide 17]

NOTE. If a fixed fee per period is charged
for a current topic reporting upkeep service
which is supplemented monthly or more fre-
quently, §§256.2, 256.3, 256.18(a) and 256.14 do
not apply.

PART 259—GUIDE CONCERNING
FUEL ECONOMY ADVERTISING
FOR NEW AUTOMOBILES

§ 259.1 Definitions.

For the purposes of this part, the fol-
lowing definitions shall apply:

(a) New automobile. Any passenger
automobile or light truck for which a
fuel economy label is required under
the Energy Policy and Conservation
Act (42 U.S.C. 6201 et seg.) or rules pro-
mulgated thereunder, the equitable or
legal title to which has never been
transferred by a manufacturer, dis-
tributor, or dealer to an ultimate pur-
chaser. The term ‘“‘manufacturer”’ shall
mean any person engaged in the manu-
facturing or assembling of new auto-
mobiles, including any person import-
ing new automobiles for resale and any
person who acts for and is under con-
trol of such manufacturer, assembler,
or importer in connection with the dis-
tribution of new automobiles. The term
“dealer”? shall mean any person, resi-
dent or located in the United States or
any territory thereof engaged in the
sale or distribution of new automobiles
to the ultimate purchaser. The term
“ultimate purchaser’? means, for pur-
poses of this part, the first person,
other than a dealer purchasing in his
or her capacity as a dealer, who in good
faith purchases such new automobile
for purposes other than resale, includ-
ing a person who leases such vehicle for
his or her personal use.

(b) Gas Mileage Guide. The most re-
cent publication of the U.S. Environ-
mental Protection Agency (EPA) and/
or the U.S. Department of Energy is-
sued pursuant to section 506(b) of the
Energy Policy and Conservation Act
(15 U.S.C. 2006(b)).

(c) Estimated mpg and estimated city
fuel economy. The gasoline consumption
or mileage of new automobiles as de-
termined in accordance with the test

103


§ 259.2

procedure employed and published by
the U.S. Environmental Protection
Agency as described in 40 CFR Part 86
(1977), and subsequent revisions; and
expressed in miles-per-gallon, to the
nearest whole mile-per-gallon as meas-
ured, reported, published, or accepted
by the U.S. Environmental Protection
Agency.

(d) Estimated highway fuel economy.
The gasoline consumption or mileage
of new automobiles as determined in
accordance with the highway test pro-
cedure employed by the U.S. Environ-
mental Protection Agency as described
in 40 CFR Part 600 (1977) and subse-
quent revisions; and expressed in miles-
per-gallon, to the nearest whole mile-
per-gallon, as measured, reported, or
accepted by the U.S. Environmental
Protection Agency.

(e) Estimated combined fuel economy.
The harmonic average of the ‘‘esti-
mated mpg”? and the estimated high-
way fuel economy” weighted 0.55 and
0.45, respectively.

(f) Vehicle configuration. The unique
combination of automobile features, as
defined in 40 CFR Part 600.

(38 Stat. 717, as amended (15 U.S.C. 41-58))
[43 FR, 55749, Nov. 29, 1978)

$259.2 Advertising disclosures.

(a) No manufacturer or dealer shall
make any express or implied represen-
tation in advertising concerning the
fuel economy of any new automobile?
unless such representation is accom-
panied by the following clear and con-
spicuous disclosures:

(1) The “estimated mpg’’ of such
automobile, with the U.S. Environ-
mental Protection Agency identified as
the source of such figures; and

(2) That the ‘‘estimated mpg”’ is to be
used for comparison purposes, and that
the actual fuel economy to be obtained
by the consumer may be different and
will depend upon the individual’s driv-

1The Commission will regard as an express
or implied fuel economy representation one
which an ordinary consumer, upon consider-
ing the representation in the context of the
entire advertisement, would understand as
referring to the fuel economy performance of
the vehicle or vehicles advertised.

16 CFR Ch. I (1-1-95 Edition)

ing speed, weather conditions, and trip
length.?

(b) If an advertisement for a new
automobile cites:

(1) The ‘estimated highway fuel
economy” for the advertised vehicle,
the advertisement must refer to that
figure as the “estimated highway”
mileage or “highway estimate,’’ and
must clearly and conspicuously dis-
close:

(i) The ‘“‘estimated mpg’’ of the ad-
vertised vehicle, giving that figure sub-
stantially more prominence than the
“estimated highway fuel economy” and
placing the two figures in close
conjuction with each other;3

2The Commission will regard the following
disclosures as complying with §259.2(a)(2):

For radio and television when the ‘‘esti-
mated mpg’’ appears in the audio portion,
the following audio disclosures will be suffi-
cient: ‘‘Remember: Use this number for com-
parisons. The actual mileage you get may be
different.”’ or ‘“Remember: Compare this esti-
mate to the ‘‘estimated mpg”’ of other cars.
The actual mileage you get may be dif-
ferent.”

For television, when the “estimated mpg’
appears only in the video portion: ‘‘Remem-
ber: Use this estimate for comparisons. Your
mileage may be different, depending on your
speed, trip length, and weather.”

For print media only (other than roadside
billboards): ““Remember: Compare this estimate
to the “estimated mpg” of other cars. You
may get different mileage, depending on how
fast you drive, weather conditions, and trip
length.”

For roadside billboards only: “Use for
Comparisons. Get Free Gas Mileage Guide
from dealer for details.” or ‘‘Use for Com-
parisons. Actual mileage may be different.”

3The Commission will regard the following
as constituting ‘substantially more promi-
nence’’:

For television only: If the “estimated
mpg’’ and any other mileage estimate appear
only in the visual portion, the ‘estimated
mpg’’ must appear in numbers twice as large
as those used for any other estimate, and
must remain on the screen at least as long as
any other estimate. If the ‘‘estimated mpeg”’
appears in the audio portion, visual broad-
cast of the “estimated highway fuel econ-
omy” or the “estimated combined fuel econ-
omy”? must be accompanied by the simulta-
neous, at least equally prominent, visual
broadcast of the ‘‘estimated mpg.’’ Each vis-
ual “estimated mpg’? must be broadcast
against a solid color background which con-
trasts easily with the color used for the

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Federal Trade Commission

_ (ii) That the “estimated mpg’’ is to
be used for comparison purposes and
that actual mileage may be different
from the “estimated mpg,’’ depending
on the individual’s driving speed,
weather conditions, and trip length;

(iii) That actual highway mileage
will probably be less than the “esti-
mated highway fuel economy.”

(2) The ‘estimated combined fuel
economy”’ for the advertised vehicle,
the advertisement must refer to that
figure as the “estimated combined”
mileage or the ‘‘combined estimate,”’
and must clearly and conspicuously
disclose:

(i) The “estimated mpg’ of the ad-
vertised vehicle, giving that figure sub-
stantially more prominence than the
“estimated combined fuel economy’”’
and placing the two figures in close
conjunction with each other;

(ii) That the ‘“‘estimated mpg”’’ is to
be used for comparison purposes and
that actual mileage may be different
from the “estimated mpg,”’ depending
on the individual’s driving speed,
weather conditions, and trip length;

(iii) That the ‘estimated mpg”’’ is
more likely to reflect actual overall
mileage than the ‘‘estimated combined
fuel economy.”’

numbers when viewed on both color and
black-and-white televisions.

For radio and television when ‘estimated
highway fuel economy” or “estimated com-
bined fuel economy” are used in audio: The
“estimated mpg’’ must be stated, both before
and after each disclosure of the ‘“‘estimated
highway fuel economy” or the “‘estimated
combined fuel economy” at least as audibly
as each other estimate.

For print only: The “estimated mpg” must
appear in clearly legible type at least twice
as large as that used for the “estimated
highway fuel economy” or the ‘estimated
combined fuel economy.” Alternatively, if
the “estimated mpg”’ appears in type of the
same size as the “highway” or ‘“‘combined”’
estimate, it must be clearly legible and con-
spicuously circled. The ‘“‘estimated mpg”’
must appear against a solid color, contrast-
ing background. It may not appear in a foot-
note unless all references to fuel economy
appear in a footnote. No reference to or cita-
tion of the ‘“‘estimated highway fuel econ-
omy” or the ‘‘estimated combined fuel econ-
omy’? may appear in the title of any adver-
tisement.

§ 259.2

(c) Fuel economy estimates derived
from a non-EPA test may be disclosed
provided that:

(1) The advertisement also discloses
the ‘‘estimated mpg,”’ includes the dis-
closures required by §259.2(b)(1)(ii), and
gives the ‘‘estimated mpg’’ substan-
tially more prominence than any other
estimate disclosed;

(2) The source of the non-EPA test is
clearly and conspicuously identified;

(3) The driving conditions and vari-
ables simulated by the test which differ
from those used to measure the ‘‘esti-
mated mpg”’ are clearly and conspicu-
ously disclosed. Such conditions and
variables may include, but are not lim-
ited to, road or dynamometer test, av-
erage speed, range of speed, hot or cold
start, and temperature; and

(4) The advertisement clearly and
conspicuously discloses any distinc-
tions in vehicle configuration and
other equipment affecting mileage per-
formance (e.g. radial tires) between the
automobiles tested in the non-EPA and
“estimated mpg’’ EPA tests.

(ad) No manufacturer or dealer shall
represent that the ‘‘estimated mpg”’ is
the ‘‘estimated city fuel economy”’ un-
less;

(1) The designation as ‘estimated
mpg’’ is accorded prominence at least
equal to the designation as ‘‘estimated
city fuel economy’’ or similar terms;
and

(2) The designation as ‘estimated
city fuel economy” or similar term is
accompanied by the clear and con-
spicuous disclosure that fuel economy
in heavy city traffic will be lower.

(e) All advertisement placed thirty
days or later after publication of this
Guide must comply with the foregoing
provisions. All non-conforming ad copy
which has been placed during the pe-
riod, but which can be withdrawn and
replaced with conforming advertise-
ments without penalty, must be so
withdrawn. For purposes of this sec-
tion, ad copy can be withdrawn and re-
placed with conforming advertisements
without penalty if applicable standard
media deadlines or closing dates, as set
by current rate cards, standard con-
tracts or ordinary business practice,
have not yet expired. In no case may a

105


§ 260.1

non-conforming ad appear five months
after publication of this Guide.

(38 Stat. 717, as amended (15 U.S.C. 41-58))
[43 FR 55749, Nov. 29, 1978)

PART 260—GUIDES FOR THE USE OF
ENVIRONMENTAL MARKETING
CLAIMS

Sec.
260.1
260.2
260.3

Statement of purpose.

Scope of guides.

Structure of the guides.

260.4 Review procedure.

260.5 Interpretation and substantiation of
environmental marketing claims.

260.6 General principles.

260.7 Environmental marketing claims.

260.8 Environmental Assessment.

AUTHORITY: 15 U.S.C. 41-58.

SOURCE: 57 FR 36363, Aug. 13, 1992, unless
otherwise noted.

§260.1 Statement of purpose.

These guides represent administra-
tive interpretations of laws adminis-
tered by the Federal Trade Commission
for the guidance of the public in con-
ducting its affairs in conformity with
legal requirements. These guides spe-
cifically address the application of sec-
tion 5 of the FTC Act (15 U.S.C. 45) to
environmental advertising and market-
ing practices. They provide the basis
for voluntary compliance with such
laws by members of industry. Conduct
inconsistent with the positions articu-
lated in these guides may result in cor-
rective action by the Commission
under section 5 if, after investigation,
the Commission has reason to believe
that the behavior falls within the scope
of conduct declared unlawful by the
statute.

§260.2 Scope of Guides.

These guides apply to environmental
claims included in labeling, advertis-
ing, promotional materials and all
other forms of marketing, whether as-
serted directly or by implication,
through words, symbols, emblems,
logos, depictions, product brand names,
or through any other means. The
guides apply to any claim about the en-
vironmental attributes of a product or
package in connection with the sales,
offering for sale, or marketing of such
product or package for personal, family

16 CFR Ch. | (1-1-95 Edition)

or household use, or for commercial,
institutional or industrial use. Because
the guides are not legislative rules
under section 18 of the FTC Act, they
are not themselves enforceable regula-
tions, nor do they have the force and
effect of law. The guides themselves do
not preempt regulation of other Fed-
eral agencies or of State and local bod-
ies governing the use of environmental
marketing claims. Compliance with
Federal, State or local law and regula-
tions concerning such claims, however,
will not necessarily preclude Commis-
sion law enforcement action under sec-
tion 5.

§260.3 Structure of the guides.

The guides are composed of general
principles and specific guidance on the
use of environmental claims. These
general principles and specific guid-
ance are followed by examples that
generally address a single deception
concern. A given claim may raise is-
sues that are addressed under more
than one example and in more than one
section of the guides. In many of the
examples, one or more options are pre-
sented for qualifying a claim. These op-
tions are intended to provide a “safe
harbor” for marketers who want cer-
tainty about how to make environ-
mental claims. They do not represent
the only permissible approaches to
qualifying a claim. The examples do
not illustrate all possible acceptable
claims or disclosures that would be
permissible under section 5. In addi-
tion, some of the illustrative disclo-
sures may be appropriate for use on la-
bels but not in print or broadcast ad-
vertisements and vice versa. In some
instances, the guides indicate within
the example in what context or con-
texts a particular type of disclosure
should be considered.

§260.4 Review procedure.

Three years after the date of adop-
tion of these guides, the Commission
will seek public comment on whether
and how the guides need to be modified
in light of ensuing developments. Par-
ties may petition the Commission to
alter or amend these guides in light of
substantial new evidence regarding
consumer interpretation of a claim or
regarding substantiation of a claim.

106