gas4.jpgMore than once a week, we a call from a New York consumer disappointed that his vehicle’s gas mileage falls short – frequently far short – of the mileage stated on the sticker at the time of purchase. This is an especially hot issue for consumers as gas prices continue to skyrocket.  What rights to these consumers have with respect to these newly-acquired gas guzzlers?There are two types of claims two consider: New York Lemon Law and breach of warranty.  A consumer complaining of the vehicle’s poor gas mileage could allege a lemon law claim.  However, lemon laws in most states, including New York, require proof that the defect substantially affects the use, safety or value of the vehicle.  Poor gas mileage is unlikely to rise to the level of a substantial defect.

What about a breach of warranty claim under New York?  A warranty can be created by the manufacturer any time it makes an ‘affirmation of fact’; that is, any time the manufacturer makes a statement about the vehicle’s performance or quality.  It could be argued that the so-called Monroney Label on the vehicle is just such an affirmation-warranty, which gets breached if the vehicle fails to live up to the promised mileage.

Will this hold up in court, however?   Manufacturers will after argue that the poor gas mileage is not an actionable claim. They rely on 49 U.S.C. § 32908(d) (2000), which provides that “a disclosure about fuel economy or estimated annual fuel costs under this section does not establish a warranty under a law of the United States or a State.”  Thus, it may be that any claims with respect to a vehicle’s mileage are precluded by Federal Law.  Manufacturers also frequently argue that because vehicles are driven under conditions different that the conditions used to calculate fuel efficiency, it is impossible for the consumer to prove that any standard of efficiency has been created, or breached. Few cases have been decided on this issue in New York, but those that have have been unfavorable for consumers.

Therefore, remember that from the legal perspective, gas mileage claims are difficult to prove.  Our suggestion to New York vehicle buyers is to research their potential purchases carefully to avoid being stuck with a lemon all too thirsty for fuel!