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Highlight Updates Required Statement of Estimated Gas Mileage; Emission Controls

Federal law requires manufacturers to disclose estimated gas mileage on the Monroney sticker that must be affixed to every new vehicle sold in the United States.336 The Environmental Protection Agency (EPA), which enforces the statute, has detailed standards regulating how the mileage is to be calculated.337 In addition, the FTC has issued a guide regarding advertisement of fuel economy to consumers.338

The statute regulating the Monroney sticker states that the EPA mileage disclosure does not create an express warranty.339 When there is a federal standard in effect, federal law preempts state laws regarding fuel economy standards, and a state may adopt or enforce a law regarding disclosure of fuel economy only if it is identical to the federal requirement.340 If a manufacturer makes misleading statements in advertisements that go beyond those disclosures, however, the federal statute does not preempt UDAP claims.341

The Clean Air Act has an unusually broad preemption provision stating that “[n]o State or political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part.”342 A number of courts have held that this provision does not preempt warranty, fraud, and other claims alleging that the manufacturer used a “defeat device” to prevent a vehicle’s non-compliance with federal emissions standards from being detected.343

The Clean Air Act also requires manufacturers to warrant to the ultimate purchaser and each subsequent purchaser that the vehicle or engine is designed, built, and equipped so as to conform at the time of sale with applicable emissions regulations and to be free from defects in materials and workmanship which cause it to fail to conform with those regulations.344 The warranty period must comply with EPA regulations.345 The specific reference to the ultimate purchaser and the warranty period make it clear that this warranty is intended to be enforceable by buyers like any other warranty. However two courts have disagreed, holding that as the warranties were not voluntary their enforcement by consumers would run afoul of the prohibition346 against states or political subdivisions enforcing emissions standards.347


  • 336 49 U.S.C. 32908(b).

  • 337 40 C.F.R. §§ 600.206-12 to 600.210-12.

  • 338 16 C.F.R. pt. 259.

  • 339 {312} 49 U.S.C. 32908(d). See §, infra. Cf. In re Ford Fusion & C-Max Fuel Econ. Litig., 2015 WL 7018369, at *35–36 (S.D.N.Y. Nov. 12, 2015) (guarantees that go beyond EPA-required disclosures may create warranties).

  • 340 {314} 49 U.S.C. § 32919. See Reaves v. American Honda Motor Co., 2011 WL 255296 (N.J. Super. Ct. App. Div. Jan. 28, 2011) (consumer cannot base lemon law claim on misrepresentation of mileage on federally mandated sticker).

  • 341 {313} In re Ford Fusion & C-Max Fuel Econ. Litig., 2015 WL 7018369 (S.D.N.Y. Nov. 12, 2015) (also refusing to refer claim to EPA’s primary jurisdiction). See §, infra.

  • 342 42 U.S.C. § 7543(a). See Jackson v. Gen. Motors Corp., 770 F. Supp. 2d 570 (S.D.N.Y. 2011) (interpreting this provision to preempt a variety of claims based on injuries sustained due to vehicle exhaust fumes), aff’d, 472 Fed. Appx. 80 (2d Cir. 2012).

  • 343 Bledsoe v. FCA US L.L.C., 378 F. Supp. 3d 626 (E.D. Mich. 2019); Counts v. Gen. Motors, L.L.C., 237 F. Supp. 3d 572, 588–590 (E.D. Mich. 2017) (deception and breach of contract claims based on manufacturer’s installation of defeat device not preempted when they do not seek to enforce federal emissions standards); Felix v. Volkswagen Grp. of Am., Inc., 2017 WL 3013080 (N.J. Super. Ct. App. Div. May 23, 2017) (unpublished); In re Volkswagen “Clean Diesel” Litig., 94 Va. Cir. 189 (Va. Cir. Ct. 2016).

  • 344 42 U.S.C. § 7541(a)(1).

  • 345 42 U.S.C. § 7541(i).

  • 346 42 U.S.C. § 7543(a).

  • 347 In re Chrysler-Dodge-Jeep Ecodiesel Mktg., Sales Practices & Products Liab. Litig., 295 F. Supp. 3d 927, 1024–1026 (D. Mass. 2018); In re Caterpillar, Inc., C13 & C15 Engine Products Liab. Litig., 2015 WL 4591236, at *13 (D.N.J. July 29, 2015) (warranty claim preempted because it would be an attempt to enforce federal emissions standards).