TCS Daily

Foolish Fuel Rules

By Brian E. Finch - May 3, 2002 12:00 AM

Congress has for years mandated that automobiles meet certain mileage and pollution standards, all in the name of energy conservation and environmental protection. Some members even attempted to raise such standards in order to help the U.S. conserve oil. Yet for all the legislative efforts to raise fuel economy and cut pollution, Congress has become its own biggest roadblock to such goals.

With politicians so focused on making giant leaps in technology, they've failed to recognize the major inhibitions congressional testing regimes place on improving fuel economy and pollutions emissions. Thanks to federal law, the federal government is relying on 1960s technology to measure the effectiveness of 21st century products. The end result is inhibiting the introduction of simple and relatively inexpensive items that could make a significant difference in the efficiency of automobiles.

Old Tests, Bad Results

The federal government (specifically the Environmental Protection Agency) utilizes two tests known as the "Highway Fuel Economy Test" and the "Federal Test Protocol" to test automotive performance. These tests respectively measure fuel economy and pollution emissions and are mandated by the Clean Air Act. But the tests were created more than 30 years ago and have not been improved or adjusted in the interim

Because the tests only use outdated technology and methods, the average variation in each of these tests is at least 7% (some tests have been known to vary by as much as 100%). Thus, if an inventor creates a device that has, for example, a 4% increase in fuel economy, that improvement cannot be detected regularly and therefore will not be considered verified under those tests.

The result is a chilling effect on new technology by forcing a manufacturer to invent devices that have a major impact on fuel economy or pollution reduction in order to satisfy the testing regimes. This chilling effect impacts "retrofit devices" particularly hard. These are devices that are designed to be added to any automobile -- new or old -- to increase its efficiency. Examples of retrofit devices include engine additives (i.e. oil), filters and spark plugs.

If a retrofit device could make an automobile measurably more efficient (especially if its cost were small while the benefits were large), it would represent an inexpensive, incremental way to improve fuel economy and pollution control. Such retrofit devices could even result in the same increased efficiencies achieved by redesigning cars from scratch to meet higher mileage and pollution standards, as Congress would have us do.

But the improvements that result from retrofit devices are often only a few percent. Such small steps are beneficial (imagine the glee if a $3 device cut oil consumption and pollution emissions by 5%). But the federal government testing regimes do not recognize them. And that removes the incentive for someone to create them.

Barring the Truth

Why not just ignore the EPA tests and utilize newer and more accurate tests, particularly since newer tests that allow for the control of more variables (and therefore allow for more precise measurements) are readily available? This seems a reasonable idea as then a manufacturer could say with confidence that a particular device increases fuel economy by 5% or decreases pollutants by 6%. But there is one small problem. The federal government won't let them use new and better tests. The government -- more specifically the Federal Trade Commission -- by law does not recognize them. And if the law does not recognize the new tests, then you can't advertise the benefits the retrofit devices provide without subjecting your business to a claim of false advertising by the FTC.

The FTC's unfair advertising policy requires that a manufacturer of a product must have a "reasonable basis" for the claims it makes. In the context of fuel economy and pollution reduction claims, a reasonable basis consists of "competent and reliable scientific evidence." Under that standard, a company must demonstrate that its product has been tested and analyzed based upon the expertise of professionals in the relevant area, using generally accepted procedures to yield accurate and reliable results. Such substantiation must exist prior to the dissemination of any claims.

And in the case of mileage and pollution control in automobiles, the only "competent and reliable scientific evidence" the FTC recognizes for retrofit devices are the results from the aforementioned, out-of-date EPA tests. So, if the claimed results cannot be duplicated, it will assert that the claims are deceptive or false.

Thus, a manufacturer may create a device that provides a definite, measurable improvement in fuel economy and pollution emissions, but if it is not large enough to be detected by the outdated tests, it runs the risk of the FTC pursuing a false advertising claim against it. So, even if the device works as advertised, the FTC may say it does not just because the old tests are too imprecise to measure smaller improvements. So, the inventor can't advertise it. So, he can't sell it. So, he doesn't make it. In effect the law, by acting as a bar to the truth, denies incremental technological improvements that would provide consumer and health benefits.

Setting Up Failure

This is not the fault of the EPA or FTC. They follow the law. The fault lies with Congress. And it appears unwilling to change the law, either out of sheer ignorance or to gain some obscure political advantage in demanding unrealistic fuel economy and pollution reduction goals while precluding manufacturers from developing the tools necessary to reach them.

It is a little more than ironic that for all the voices we hear begging for improvements in fuel efficiency and ending our fossil fuel "addiction" the inaction of Congress has in effect gagged those who may be able to help.

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