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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.327 The Environmental Protection Agency (EPA), which enforces the statute, has detailed standards regulating how the mileage is to be calculated.328 In addition, the FTC has issued a guide regarding advertisement of fuel economy to consumers.329

The statute regulating the Monroney sticker states that the EPA mileage disclosure does not create an express warranty.330 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.331 If a manufacturer makes misleading statements in advertisements that go beyond those disclosures, however, the federal statute does not preempt UDAP claims.332 The Clean Air Act has a broad preemption provision that has been interpreted to bar a variety of claims based on injuries sustained due to vehicle exhaust fumes.333 However, a number of courts have held that it 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.334


  • 327 49 U.S.C. 32908(b).

  • 328 40 C.F.R. §§ 600.206-12 to 600.210-12.

  • 329 16 C.F.R. pt. 259.

  • 330 {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).

  • 331 {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).

  • 332 {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.

  • 333 {315} 42 U.S.C. § 7543(a). See Jackson v. Gen. Motors Corp., 770 F. Supp. 2d 570 (S.D.N.Y. 2011), aff’d, 472 Fed. Appx. 80 (2d Cir. 2012). But cf. In re Caterpillar, Inc., C13 & C15 Engine Products Liab. Litig., 2015 WL 4591236 (D.N.J. July 29, 2015) (rejecting manufacturer’s attempt to characterize engine defect claims as being about emissions and therefore subject to preemption, but holding that separate statutorily mandated emissions warranty is breached only if engine violates federal emissions standards).

  • 334 Counts v. Gen. Motors, L.L.C., 237 F. Supp. 3d 572, 588–590 (E.D. Mich. Feb. 14, 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).