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Vehicle Manufacturer's Warranty

The Effect on Your Manufacturer's Warranty

Potential Tampering Liability Associated with Fuel Economy Retrofit Devices

The federal tampering prohibition is contained in section 203(a)(3) of the Clean Air Act (Act), 42 U.S.C. 7522(a)(3). Section 203(a)(3)(A) of the Act prohibits any person from removing or rendering inoperative any device or element of design installed on or in any motor vehicle in compliance with regulations under Title II of the Act (i.e., regulations requiring certification that vehicles meet federal emissions standards). The maximum civil penalty for a violation of this section by a manufacturer or dealer is $25,000; for any other person, $2,500. Section 203(a)(3)(B) of the Act prohibits any person from manufacturing or selling, or offering to sell, or installing, any part or component intended for use with, or as part of, any motor vehicle or motor vehicle engine where a principal effect of the part or component is to bypass, defeat, or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine, and where the person knows or should know that such part or component is being offered for sale or is being installed for such use. The maximum civil penalty for a violation of this section is $2,500. Installing any device, system or part(s) which affect the fuel delivery rate or the combustion process would be expected to affect elements of design of the emissions control system. Accordingly, any change from the original certified configuration of a vehicle such as adding a system or parts that affect the fuel delivery rate or the combustion process, or the manufacture, sale of, or installation of, aftermarket parts or systems which are not equivalent to the original equipment could be considered violations of section 203(a)(3) of the Act. However, EPA has established an enforcement policy, Mobile Source Enforcement Memorandum No. 1A (Memorandum 1A), to provide guidance to the public to reduce the uncertainty regarding potential liability under section 203(a)(3) of the Act for using or selling aftermarket parts or systems, or making adjustments or alterations to parts or system parameters. Basically, Memorandum 1A states that EPA will not consider any modification to a certified emissions control configuration to be a violation of the tampering prohibition if there is a reasonable basis for knowing that emissions are not adversely affected. In many cases, durability aging and emissions testing according to the FTP would be necessary to make this determination. There are two different methods for establishing a reasonable basis for knowing that emissions are not adversely affected by the installation of a retrofit device: 1) the installer knows of, or the 12 manufacturer of the device represents in writing, that FTP emission tests have been performed as prescribed in 40 CFR 86 showing that the device does not cause similar vehicles to fail to meet applicable emission standards for their useful life; or 2) a federal, state or local environmental control agency expressly represents that a reasonable basis exists. Such an agency determination is limited to the geographic area over which that agency has jurisdiction. Some states, such as California, have additional requirements. If the results of EPA emission testing of a retrofit device show that any of the regulated emissions increase (even though other regulated emissions may have decreased), EPA will publish a Federal Register Notice (Notice) explaining the legal implications of those findings on persons engaged in the business of servicing, repairing, selling, leasing, or trading motor vehicles, fleet operators, new car dealers and individuals. The Notice will alert the regulated parties that the installation of such a device by them may be deemed to be a violation of section 203(a)(3) of the Act. EPA does not have a mandatory, formal program to evaluate and make determinations of compliance of aftermarket parts with Memorandum 1A. Although EPA has informally evaluated compliance information in the past, because of current budget cuts and resource constraints we are not routinely reviewing information showing compliance with Memorandum 1A .While compliance with Memorandum 1A is required, submission of the information to us is not required unless we request the information to verify compliance. We emphasize, however, that our lack of review of the information does not relieve any one from responsibility to comply with Memorandum 1A or liability for violations of section 203(a)(3) and Memorandum 1A. The results of an FTP test are valid only for similar vehicles. Therefore, the test fleet should be diverse and large enough to provide an adequate data base from which conclusions can be drawn with reasonable confidence. When appropriate, however, analyses based upon engineering judgment can be used to determine the applicability of FTP test results to other vehicles and the devices’ effect on the durability of the emission control systems. The EPA’s NVFEL does not make decisions as to whether the installation of a particular retrofit device constitutes tampering with the emission control system of a vehicle. Questions regarding tampering or requests for copies of Memorandum 1A are handled by Steve Albrink in Washington, DC, at 202-564-8997. Miscellaneous Evaluations conducted in the EPA test program are for the purpose of demonstrating the effectiveness of developed devices and are not to be construed as development testing. All development work must precede EPA evaluation. The applicant will not be permitted to make adjustments to the test vehicle or to the device except to repair malfunctions. Such repairs will be permitted at the discretion of the EPA test engineer.13 EPA engineering staff will prepare a draft report on the evaluation of the device for applicant review to ensure accuracy of the information describing the device. The developer should transmit comments to EPA promptly. Final test reports are distributed upon request to technical personnel in federal and state governments, private industry, universities and are also available to the general public from the NVFEL Library at:

U.S. EPA
NVFEL Library
2000 Traverwood Drive
Ann Arbor, MI 48105
(734) 214-4311

Applicants may cite final EPA reports (but not draft reports) to indicate the exhaust emission and fuel economy levels attained with the device, but the developer may not claim that the EPA report constitutes approval, certification, endorsement or registration. Cases of misrepresentation of EPA evaluation reports will be referred to the Department of Justice and/or the Federal Trade Commission, as appropriate.

Why It Does Not Void Your Warranty

The EPA has established an enforcement policy, cited above, to provide guidance to the public to reduce the uncertainty regarding potential for using or selling after market parts or systems that affects the fuel delivery rate or the combustion process, or making adjustments or alterations to the vehicles parts or system parameters. The EPA will not consider any modification to a certified emissions control configuration to be a violation of the tampering prohibition if there is a reasonable basis for knowing that emissions are not adversely affected. BluWave Hybrid Converter Kits have taken into account their effect on vehicle emission control systems and have been found to not adversely affect their operation.

BluWave Hybrid, as a manufacturer, has done preliminary emissions testing on selected vehicles and is in the process of validating emissions testing for an increasingly wider range of vehicles. In no cases to date, was the testing result found to have altered emissions negatively. On the contrary, BluWave Hybrid Converter Kits have been shown in all cases to improve all regulated emissions. Therefore, BluWave Hybrid Converter Kits can be demonstrated, when installed properly, to be well within the EPA emissions guidelines and to not be in violation of the Clean Air act upon which all retrofit engine legislation is based.

Further information vehicle warranty statutes are contained in the Magnuson-Moss and Moss Acts.

The Magnuson-Moss Act contains many definitions:

  • A "consumer" is a buyer of consumer goods for personal use. A buyer of consumer products for resale is not a consumer.
  • A "supplier" is any person engaged in the business of making a consumer product directly or indirectly available to consumers.
  • A "warrantor" is any supplier or other person who gives or offers a written warranty or who has some obligation under an implied warranty.
  • A "consumer product" is generally any tangible personal property for sale and that is normally used for personal, family, or household purposes. It is important to note that the determination whether a good is a consumer product requires a factual finding, on a case-by-case basis. Najran Co. for General Contracting and Trading v. Fleetwood Enterprises, Inc., 659 F. Supp. 1081 (S.D. Ga. 1986).
  • A "written warranty" is any written promise made in connection with the sale of a consumer product by a supplier to a consumer that relates to the material and/or workmanship and that affirms that the product is defect-free or will meet a certain standard of performance over a specified time.
  • An "implied warranty" is defined in state law. The Magnuson-Moss Act simply provides limitations on disclaimers and provides a remedy for their violation.
  • A "full warranty" is one that meets the federal minimum standards for a warranty. Such warranties must be "conspicuously designated" as full warranties.
  • A "limited warranty" is one that does not meet the federal minimums. Such warranties must be "conspicuously designated" as limited warranties.
  • A "service contract" is different from a warranty because service contracts do not affirm the quality or workmanship of a consumer product. A service contract is a written instrument in which a supplier agrees to perform, over a fixed period of time or for a specified duration, services relating to the maintenance or repair, or both, of a consumer product. Agreements that meet the statutory definition of service contracts, but are sold and regulated under state law as contracts of insurance, do not come under the Act's provisions.

Requirements of the Magnuson-Moss Act

The Act provides that any warrantor warranting a consumer product to a consumer by means of a written warranty must disclose, fully and conspicuously, in simple and readily understood language, the terms and conditions of the warranty to the extent required by rules of the Federal Trade Commission. The FTC has enacted regulations governing the disclosure of written consumer product warranty terms and conditions on consumer products actually costing the consumer more than $15. The Rules can be found at 16 C.F.R. Part 700.

Under the terms of the Act, ambiguous statements in a warranty are construed against the drafter of the warranty. Likewise, service contracts must fully, clearly, and conspicuously disclose their terms and conditions in simple and readily understood language.

Full Warranty Requirements Under a full warranty, in the case of a defect, malfunction, or failure to conform to the written warranty, the warrantor:

  • must, as a minimum, remedy the consumer product within a reasonable time and without charge;
    Zero. may not impose any limitation on the duration of any implied warranty on the product;
  • may not exclude or limit consequential damages for a breach of any written or implied warranty on the product, unless the exclusion or limitation conspicuously appears on the face of the warranty; and
  • if the product, or a component part, contains a defect or malfunction, must permit the consumer to elect either a refund or replacement without charge, after a reasonable number of repair attempts.

In addition, the warrantor may not impose any duty, other than notification, upon any consumer, as a condition of securing the repair of any consumer product that malfunctions, is defective, or does not conform to the written warranty. However, the warrantor may require consumers to return a defective item to its place of purchase for repair.

Limitations of the Magnuson-Moss Act

Remedies under The Magnuson-Moss Warranty Act does not invalidate or restrict any right or remedy of any consumer under any other federal law, nor does the Act supersede the Federal Trade Commission Act as it pertains to antitrust actions. The Act does not invalidate or restrict any right or remedy of any consumer under state law. The Act is not the dominant regulation of consumer product warranties, and while it prescribes certain disclosures and restricts certain limitations on warranties, it leaves other warranty law untouched. Richardson v. Palm Harbor Homes, Inc., 254 F.3d 1321, 45 U.C.C. Rep. Serv. 2d 56 (11th Cir. 2001). Although the Act covers warranties on repair or replacement parts in consumer products, warranties on services for repairs are not covered. The federal minimum standards for full warranties are waived if the warrantor can show that the problem associated with a warranted consumer product was caused by damage while in the possession of the consumer, or by unreasonable use, including a failure to provide reasonable and necessary maintenance.

Moss Act

The Moss Act is meant to provide consumers with access to reasonable and effective remedies where there is a breach of warranty on a consumer product. The Act provides for informal dispute-settlement procedures and for actions brought by the government and by private parties. The FTC has been mandated by Congress to promulgate rules to encourage the use of alternative dispute resolution, and full warranties may require mediation and/or arbitration as a first step toward settling disputes. In addition, the federal government has the authority to take injunctive action against a supplier or warrantor who fails to meet the requirements of the act.


Finally, consumers may seek redress in the courts for alleged violations of the Magnuson-Moss Act. A consumer who has been injured by the noncompliance of a supplier may bring an action in state court if the amount in controversy is between $25 and $50,000, or a class action in state court if the number of class plaintiffs is less than 100. If the jurisdictional amount, or number of plaintiffs, exceeds these limits, such an action may be brought in federal district court. Moreover, one of the key aids to the effectiveness of the Act is that a prevailing plaintiff may recover reasonable costs of suit, including attorney fees.


For Technical Support Contact: support@bluwavehybrid.com