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Deceptive Ad Claim For Hybrid Can Proceed

A brochure for the Honda Civic Hybrid that Gaetano Paduano bought in June 2004 promised amazing fuel efficiency: an Environmental Protection Agency (EPA) estimate of up to 51 miles per gallon for the model with a manual transmission. "Just drive the Hybrid like you would a conventional car and save on fuel bills," the brochure read. That's what Paduano did--and for a year found himself back at the gas pump twice as often as he anticipated.

Paduano asked a dealership service employee what he could do to bring his fuel efficiency closer to the EPA estimates. The employee told him that compared to cars with conventional engines, hybrid efficiency is much more dependant on factors such as whether the windows are open or the air conditioner is on. The employee also said Paduano would have to significantly alter his driving habits--to the point that he would "create a driving hazard"--to near the EPA estimate. Feeling misled, Paduano tried to return the car, but Honda refused to buy it back.

Shifting Argument

Paduano's argument could run into several stumbling blocks at trial over factors Justice Terry O'Rourke highlighted in his dissent. In his initial complaint, Paduano focused on the EPA estimate as the crux of his discontent. Since federal law pre-empts any claims over EPA ratings, on appeal Paduano switched tactics by attacking the language in the brochure. O'Rourke wrote that the marketing statements were related closely enough to the EPA ratings that they should be protected by the same federal statute.

Associate Editor

Lauren Williamson

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