Claimed fuel fig­ures just don’t add up

Car man­u­fac­tur­ers ad­vised to take due care to prop­erly qual­ify their ad­ver­tised con­sump­tion fig­ures

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - JOHN FOS­TER

DUE to ris­ing fuel costs, the need to cut car­bon foot­prints and re­duce our de­pen­dence on oil­rich na­tions fuel con­sump­tion is gen­er­ally a key de­ter­min­ing fac­tor for con­sumers when pur­chas­ing a ve­hi­cle.

But will your ve­hi­cle ever achieve its ad­ver­tised fuel con­sump­tion? Prob­a­bly not.

In SA, there is a stan­dard­ised sys­tem for the test­ing and la­belling of fuel con­sump­tion and emis­sions of ve­hi­cles. This sys­tem, which is based on a sim­i­lar sys­tem used in Europe, al­lows con­sumers to com­pare the fuel con­sump­tion and emis­sions of dif­fer­ent mod­els which have all been put through the same stan­dard­ised tests.

The de­tailed pro­ce­dure for con­duct­ing these tests is the sub­ject of a South African Na­tional Stan­dard (SANS 20101: 2006) and in­volves the mount­ing of the ve­hi­cle on a rolling road dy­namome­ter in a cham­ber un­der con­trolled at­mo­spheric con­di­tions.

Fuel con­sump­tion is mea­sured as the ve­hi­cle is driven through a stan­dard cy­cle of set ac­cel­er­a­tions and stops. Fig­ures are ob­tained from these tests for an “ur­ban cy­cle”, with sim­u­lated ve­hi­cle stops, idling and starts reach­ing a max­i­mum speed of 5km/h; an “ex­tra ur­ban cy­cle”, in which a max­i­mum speed of 120km/h is reached; and a “com­bined cy­cle”, which is a com­bi­na­tion of the two.

How­ever, in re­al­ity, fuel con­sump­tion may vary based on in­di­vid­ual driv­ing style, ve­hi­cle load­ing, tyre pres­sure, air-con­di­tion­ing, poor main­te­nance or cli­matic and traf­fic con­di­tions and it is un­likely that a con­sumer will con­sis­tently achieve the ad­ver­tised fuel con­sump­tion sta­tis­tics ob­tained through stan­dard­ised lab­o­ra­tory test­ing.

In a re­cent rul­ing by the Ad­ver­tis­ing Stan­dards Au­thor­ity of South Africa (ASA) in the mat­ter of GMSA/J H Wright/2014 — 572F (April 25 2014), the ASA high­lighted the im­por­tance of draw­ing to con­sumers’ at­ten­tion the dis­crep­ancy be­tween fig­ures ob­tained through these stan­dard­ised lab­o­ra­tory tests and those which could be achieved in real world con­di­tions.

In this mat­ter, a con­sumer com­plained that the ad­ver­tised fuel con­sump­tion fig­ures for a ve­hi­cle he had pur­chased could not be achieved and, in fact, there was a 40% dis­crep­ancy be­tween the fuel con­sump­tion he achieved and that which was ad­ver­tised. The ve­hi­cle man­u­fac­turer re­sponded by point­ing out that the test­ing and la­belling of the fuel con­sump­tion of its ve­hi­cle com­plied with leg­is­la­tion (ie the stan­dard­ised test­ing method); the test­ing was done for the pur­pose of com­par­ing the dif­fer­ent ve­hi­cle mod­els avail­able in SA which are all tested in the same man­ner; and the fuel con­sump­tion es­ti­mates should only be used for ve­hi­cle com­par­i­son and are not in­tended to be a rep­re­sen­ta­tion of the ac­tual fuel con­sump­tion re­sults the con­sumer would ex­pe­ri­ence when op­er­at­ing the ve­hi­cle.

This is not the first mat­ter where fuel con­sump­tion sta­tis­tics have been the sub­ject of a com­plaint be­fore the ASA and, tak­ing into ac­count its pre- vi­ous find­ings on this topic, the ASA con­sid­ered the ad­ver­tis­ing and noted that, first, the ad­ver­tise­ment for the ve­hi­cle did not men­tion that the con­sump­tion fig­ures are lab­o­ra­tory-based, as op­posed to real world; and, sec­ond, the un­qual­i­fied claims would rea­son­ably be in­ter­preted as re­flec­tive of re­al­life re­sults.

The ASA was of the view that, while a rea­son­able person would un­der­stand that he or she might not achieve those ex­act re­sults, the ex­pec­ta­tion would still be that they are within the vicin­ity of what can be ex­pected.

In view of the above, the ASA found that the fuel con­sump­tion fig­ures were com­mu­ni­cated in a mis­lead­ing man­ner in con­tra­ven­tion of Clause 4.2.1 of the ASA’s Code of Ad­ver­tis­ing Prac­tice, which pro­vides that ad­ver­tis­ers are not per­mit­ted to mis­lead con­sumers by means of, among oth­ers, am­bi­gu­ity, ex­ag­ger­a­tion or omis­sion.

The ve­hi­cle man­u­fac­turer was ac­cord­ingly or­dered to with­draw the fuel con­sump­tion fig­ures and to re­frain from mak­ing un­qual­i­fied con­sump­tion claims again in the fu­ture.

Given this, ve­hi­cle man­u­fac­tur­ers should there­fore take due care to prop­erly qual­ify their ad­ver­tised fuel con­sump­tion fig­ures by, for ex­am­ple, adding an ap­pro­pri­ate dis­claimer to draw con­sumers’ at­ten­tion to the fact that the ad­ver­tised fuel con­sump­tion fig­ures were ob­tained through stan­dard­ised tests con­ducted un­der lab­o­ra­tory con­di­tions, are to be used for com­par­i­son pur­poses only and do not nec­es­sar­ily re­flect the fuel con­sump­tion which can be ob­tained un­der real world con­di­tions.

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