In the latest fuel efficiency greenwashing litigation (see, e.g., here), Ford has been hit with two class actions alleging the automaker misrepresented the miles per gallon achieved by its Fusion and C-Max SE hybrid vehicles.

The complaints (Pitkin – Ford Complaint; Strand – Ford Complaint), filed recently in federal court in Los Angeles and Santa Ana, accuse Ford of a “systematic advertising scheme” deceptively touting the cars’ combined (city and highway) 47 mpg EPA gas mileage estimate. 

According to plaintiffs, the EPA estimates do not provide actual mileage for a vehicle under normal, real life driving conditions because the test conditions are designed to maximize fuel mileage.  The EPA tests are conducted using lab machines called dynamometers instead of roads, one of the complaints says.  In addition, the highway portion of the test uses a speed range of only about 48-60 miles per hour and is performed by a professional driver.

According to the complaints, Consumer Reports found that the C-Max hybrid achieved a combined 37 mpg, and the Fusion hybrid a combined 39 mpg, well under the advertised 47 mpg figure. 

The class plaintiffs accuse Ford of misleading consumers by advertising the EPA mpg estimates as actual, expected mileage under normal, real world driving conditions while failing to disclose that the ratings are mere estimates based on particular testing conditions.

There seems to be an increasing outcry about autombile mileage testing criteria and automakers’ use of EPA data in advertising.  One of the major allegations in the Hyundai and Kia greenwashing cases is that the automakers employed flawed fuel economy testing procedures.  Perhaps it’s time for better testing procedures to reflect real world driving conditions and/or for car companies to better communicate exactly what the fuel estimates mean.

A host of proposed class action lawsuits (e.g., Krauth-Hyundai Complaint; Quiroz-Kia Complaint; Graewingholt-Hyundai Kia Complaint; Olson-Hyundai Kia Complaint) have been filed in the last several weeks against one or both of Kia and Hyundai accusing the Korean automakers of making false or misleading fuel efficiency claims in their advertising and marketing materials.

At the heart of these “garden variety” greenwashing cases (see, e.g., here and here for examples of the other kinds) are allegations that the automakers built advertising campaigns around representations that a number of their vehicles achieved gas mileage in the 40 mile per gallon range when the companies knew or should have known the actual mileage was signficantly lower.  The mpg was also alleged to be misrepresented on many of the vehicles’ window stickers.

Some of the advertising statements cited in the cases include:

“With its 29 mpg city and 40 mpg highway standard fuel economy rating, Elantra is a perfect vehicle for consumers looking for an affordable solution to rising gas prices….”

“In the first quarter of 2012, 39 percent of all Hyundai vehicles sold achieved 40 mpg on the highway thanks in large part to Elantra’s continued success.”

The Hyundai Accent manages “a best-in-class standard 40 mpg fuel economy rating on the highway” and “achieves a category-leading 30 mpg city/40 mpg highway rating, making it one of four Hyundai nameplates to eclipse teh 40 mpg mark.”

Kia’s web site states that the Optima Hybrid, Rio, Soul, and Sportage have all received the EPA SmartWay Certification Mark – a designation given by the EPA “to the cleanest most fuel efficient vehicles.”

According to the complaints, an EPA investigation prompted by consumer inquiries found the gas mileage was overstated in seven Hyundai models and six Kia models, with as much as a 6 mpg discrepancy in some models.  The complaints further state that Kia and Hyundai admitted they had misrepresented mile per gallon and fuel efficiency data.

One complaint notes the historic significance of the EPA audit:

The EPA’s Hyundai/Kia investigation is the first instance where the EPA has found a large number of vehicles from the same manufacturers deviated significantly from the manufacturer represented mileage figures.

The problem, according to another complaint, was flawed fuel economy testing.  More particularly, Hyundai and Kia allegedly made procedural errors in their “coastdown” testing, implementing methods that were not compliant with EPA requirements and “insufficient in design, procedure, content, execution, and/or completeness.”  As a result, the fuel economy ratings were “affected, inaccurate, and overstated.”

One of the complaints notes that Kia and Hyundai said they would implement a “refund” program, but calls the program “fraught with problems.”  Instead, most of the actions seek injunctive relief relating to the companies’ advertising, restitution, and monetary damages.

“Defendants apparently placed profit before integrity in the marketing and sale” of their vehicles, one of the complaints summarizes.   That plaintiff also quoted an Edmonds analyst’s seemingly apt prediction:

“In an industry where reputation is so important, this will undoubtedly give both carmakers ugly black eyes.”

Hybrid electric vehicles have frequently been targeted in court, taking flak for alleged greenwashing (see, e.g., here and here) and alleged patent infringement (see, e.g., here and here).

That trend continued and extended to electric plug-in vehicles with a recent class action complaint accusing Nissan of making misleading representations and omissions regarding the LEAF’s battery capacity and driving range. 

Filed in federal court in Los Angeles by representative Plaintiffs Humberto Daniel Klee and David Wallak, the complaint alleges that the 100 miles per charge advertised driving range of the LEAF is based on a fully charged battery when the automaker recommends charging the battery only up to 80% to avoid damage:

Unbeknownst to purchasers, the advertised driving range is based on the vehicle’s performance only after fully charging the battery to 100% capacity.  In fact, however, charging the battery to 100% causes battery damage, and Nissan expressly recommends that owners not charge their vehicles to 100% in order to maximize battery life and that the battery be charged to only 80% capacity.

The class action also alleges that the LEAF’s battery system has a design defect in that it lacks an active thermal management system to circulate cooling fluid through the battery array, a system that comparable vehicles such as the Chevy Volt, Toyota RAV4 EV and the Ford Focus use.  According to Plaintiffs, this defect leads to battery damage and loss of capacity:

The lack of an adequate active cooling system is a design defect that fails to adequately cool the batteries, causing the batteries to suffer heat-related damage and causing premature battery capacity loss, well in excess of Nissan’s own guidelines.

More particularly, the complaint says the LEAF owner’s manual indicates the vehicle may lose 20% of battery capacity over five years of operation while class members’ vehicles are losing over 27.5% battery capacity within the first 1-2 years of operation.  This problem is especially pronounced in warm climates.  The class action also alleges that Nissan expressly excluded loss of battery capacity under its 8-year / 100,00 mile battery warranty.

The complaint quotes a Wired Magazine article in which a Nissan product planner says the automaker elected to forgo active thermal management of the battery pack because it would have required a central tunnel on top of the pack, which would have intruded on cabin space and split the rear bench into two seats with a hump in the middle.

Elon Musk, CEO of Tesla Motors, is also cited for his critique of the LEAF prior to its launch.  According to the complaint, in 2009 Musk called the car’s thermal management system “primitive” and predicted the battery would suffer “huge degradation” in cold environments and “shut off” in hot ones.

To my knowledge, this is the first greenwashing lawsuit targeting an all electric plug-in vehicle.   It’s unlikely to be the last.