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An interesting case right here in San Diego is highlighting the disparities between the EPA’s estimated automobile mileage data and the actual road figures and whether car owners can adjust their driving habits to bridge the gap (see the Law.com article here).
The case involves allegations of false advertising and deceptive claims by Honda about its Civic Hybrid. The plaintiff, Gaetano Paduano, sued Honda in San Diego County Superior Court in 2005 after he became disappointed with the gas mileage of his 2004 Civic Hybrid (he was getting 23-30 mpg while the EPA number was 48).  In response to his inquiries, a Honda employee told him he would have to drastically change his driving habits to boost the mpg.
Paduano brought state and federal warranty claims and California state false advertising and deceptive practices claims relating to statements in Honda’s Civic Hybrid brochures about driving habits and fuel efficiency. The brochure tells drivers that they do not have to do “anything special” to get “terrific gas mileage” and instructs them to:
Just drive the Hybrid like you would a conventional car and save on fuel bills.
In 2006, the trial court ruled that Honda was entitled to summary judgment and dismissed all of Paduano’s claims. The court held that the representations in Honda’s brochure complied with the federal regulations on fuel economy advertising disclosures and that the state deceptive advertising claims were preempted by the Energy Policy and Conservation Act, the federal law that regulates disclosure of fuel estimates.
Last month, California’s 4th District Court of Appeal affirmed the portion of the summary judgment ruling regarding Paduano’s breach of warranty claims, but reversed as to the deceptive practices and misleading advertising claims, ruling that Paduano could go forward on the latter.
In a 2-1 opinion (paduano_opinion.pdf), the appeals court held that Paduano had put forth enough evidence (and Honda had presented no evidence to the contrary) that a jury could find that the statements in the Honda brochure could mislead a reasonable consumer.
Specifically, a Honda representative told Paduano that “you cannot drive in a normal manner in order to get the mileage” – the “normal manner” being accelerating and stopping with the flow of traffic and “accelerating as by law you’re supposed to [do] to get on the highway.”  The record showed that one Honda employee had concluded that “you can’t do any of those [usual] things” if you want to “obtain better gas mileage.”
The court found this evidence contradicted the statements in the brochure that a driver need not do “anything special” to achieve superior gas mileage and called into question Honda’s claim that a consumer just has to drive the Hybrid like he would a conventional car:
There is thus evidence that “getting terrific gas mileage” might not be accomplished as easily as Honda suggests to consumers in its brochure.
So Paduano’s case can go to trial in what could further damage Honda’s green cred. Another dissatisified Civic Hybrid owner brought a class action suit in 2007, alleging that the car maker misled consumers by inflating mpg claims.
Thanks to Stu Soffer for bringing this case to my attention.
