Stop the Press! Tesla announces REAL HP numbers for P85D and P90L

[P85DEE]

There is. It's the FTC's "Truth in Advertising" which meakes it illegal to sell products through *misleading* advertising.

The burden of proving that it was "misleading" is going to fall to the plaintiffs.

Good luck proving that when it comes to light that Tesla prominently showed "691 horsepower motor power" in their ad copy describing the P85D.

Flat out punishing Tesla for using a recognized and accepted standard of measuring power in electric vehicles, is going to be something that is not going to easily fly in a court of law.

If Tesla has simply "made up the rules as they went along", i.e. simply made up a standard which is not recognized anywhere else in the world, well then they'd have a real problem.

But that's not what happened.

They used a recognized standard.

That the consumer of an electric vehicle did not familiarize himself with this standard, is on that consumer.

 

[Nigel Tufnel]

 

[sorka]

Um, yes.

That would basically be saying;

"Tesla, we know that you've shown in court that the method you used to describe the power your cars makes, is a recognized and accepted method. However; you can't use that method of describing your cars over here, even though it is an accepted method, because it confused a few people who bought your cars and who were unfamiliar with it."

Recognized and accepted? If you're referring to R85, it's not even done:


"Thank you for your query about UN Regulation No. 85.
My understanding is that UN Regulation No. 85 (particularly Annex 6 dealing with the method for measuring net power and the maximum 30 minutes power of electric drive trains) is not clear enough at this stage to provide a clear answer to the question. The informal working group Electric Vehicles and the Environment (EVE) under the Working Party on Pollution and Energy (GRPE) is actually currently working on the proper determination of net power of new powertrain technologies such as hybrid electric and full electric vehicles."

Yet even if it wasn't, stating a motor's maximum capability is not a substitute for stating horsepower produced by the vehicle. When they were advertising 691 hp, nowhere did they state the actual horsepower so leaving that out would clearly and obviously mislead the consumer into believing 691 hp motor power is the actual horsepower produced the car as delivered.


These are all the reasons why their advertising was misleading:

• Tesla stated "691 hp motor power" on their website in multiple places. It did not state anywhere that "hp motor power" meant something other than hp produced by motors. There was no asterisk next to the horsepower spec stating that this is not actual horsepower produced by the production vehicle.
• The only place ECE R85 was referenced was inside the owner's manuals and even these didn't contain the that reference until after the P85D was already shipping. Are we to expect that prospective buyers doing their research are supposed find this reference first in the owner's manual?
• The subsystems page in the manual lists individual motor powers and does not add the front and rear motors together. In fact, if you add up front and rear motors, you get 728 hp, not 691 hp.
• Publications for over a year now have been publicizing 691 hp, not "hp motor power". Why hasn't tesla corrected them and why are they all still quoting 691 hp when the car only makes 463 hp to 535 hp at the motor shafts depending on state of charge?
• The sales people repeatedly stated the P85D makes "691 horsepower" without ever adding the term "motor power".
• Elon Musk himself has been quoted as saying the P85D has 691 hp and did not use the term motor power. He's also been quoted as saying the P85D has 50% more power than the P85.
• If they were going to list a combined horsepower number, they had an obligation to list the power that the P85D actually makes. They do for the other Model S trims. In addition, since the P85D is the only Model S to lose power as the SOC declines in it's normal daily driving range, they should have clarified that the 555 hp is only at 90% SOC or greater and that below that, power will decline as charge declines. This is not true on the other Model S variants until you get much deeper in to charge state.
• Ignoring repeated multiple letters and emails over MONTHS asking for clarification about the horsepower rating. We get responses for everything else we ask but those that inquired about this got nothing. If they were being so above board about this with nothing to hide, how come they refused to respond to the question of "why is my car only making 463 hp to 535 hp at the motor shafts when it was advertised at 691 hp"?
• Just because they test according to R85 to arrive at motor power ratings doesn't mean they get to use that in place of actual horsepower specified. Nowhere in the regulation does it state you can substitute horsepower rating of the vehicle with motor power capability of the drivetrain (with a power source not supplied). These are two entirely separate things. One is the actual horsepower produced by the vehicle. The other is an irrelevant specification that can't be reached with the shipping battery. It's only possible value would be knowing your drivetrain could handle more power if a battery with more power became available in the future.

 

[Krugerrand]

There is. It's the FTC's "Truth in Advertising" which meakes it illegal to sell products through *misleading* advertising.

Not defining a term is not 'illegal' when selling a product, nor is it 'misleading'. Terms specific to products and industries are used all the time in advertising without any reference to their definitions. That's the consumers responsibility to educate themselves before buying said product they aren't familiar with.

I could advertise one of my products to you right now and use industry terms that you're quite unlikely to understand unless you've specifically been involved in my industry. I don't have to define those industry terms to you in my advertisement and that's not illegal. If you ask me what they mean, I'm happy to oblige with definitions (and then likely to send you on your way since I've very picky who buys my products and if you have to ask, you don't know enough).

It's been said many times before, Tesla could have done a better job of educating their customers in this regard, no doubt. But those customers who have claimed to be buying specifically on the motor power horsepower number should also have done a better job of educating themselves before purchasing.

 

[sorka]

The burden of proving that it was "misleading" is going to fall to the plaintiffs.

Good luck proving that when it comes to light that Tesla prominently showed "691 horsepower motor power" in their ad copy describing the P85D.

Again, where is the term "motor power" when advertised with a vehicle to mean only the capability of the motor outside of the vehicle and not the power produced by that motor in the shipping vehicle?

 

[P85DEE]

Again, where is the term "motor power" when advertised with a vehicle to mean only the capability of the motor outside of the vehicle and not the power produced by that motor in the shipping vehicle?

Not defining a term is not 'illegal' when selling a product, nor is it 'misleading'. Terms specific to products and industries are used all the time in advertising without any reference to their definitions. That's the consumers responsibility to educate themselves before buying said product they aren't familiar with.

I could advertise one of my products to you right now and use industry terms that you're quite unlikely to understand unless you've specifically been involved in my industry. I don't have to define those industry terms to you in my advertisement and that's not illegal. If you ask me what they mean, I'm happy to oblige with definitions (and then likely to send you on your way since I've very picky who buys my products and if you have to ask, you don't know enough).

It's been said many times before, Tesla could have done a better job of educating their customers in this regard, no doubt. But those customers who have claimed to be buying specifically on the motor power horsepower number should also have done a better job of educating themselves before purchasing.

Exactly. That's what this is going to come down to, if it ever winds up in a U.S. court of law.

If the consumer is purchasing a product, e.g. an electric vehicle, well then it is incumbent upon the consumer to educate himself before his purchase.

It is extremely doubtful that Tesla would lose a case like this in the United States.

 

[sorka]

Not defining a term is not 'illegal' when selling a product, nor is it 'misleading'. Terms specific to products and industries are used all the time in advertising without any reference to their definitions. That's the consumers responsibility to educate themselves before buying said product they aren't familiar with.

You are just flat out wrong. We have laws to prevent misleading advertising. There was almost no way the consumer could have figured out this was not what was being advertised. My sales rep told me the P85D made 691 hp. He did not use the term motor power.

So tell me this, what resources were at the consumers disposal before May that would allow the consumer to determine that the P85D really only made 463 hp and did not make 691 hp?

 

[Andyw2100]

The burden of proving that it was "misleading" is going to fall to the plaintiffs.

If I were an attorney for the plaintiffs I might start by offering as evidence all the articles, written by automotive experts, that described the car as making 691 horsepower (not motor horsepower.) I would then argue that either all of the automotive journalists were confused, as evidenced by the articles they wrote, and their organizations published, or perhaps there was a press release that actually failed to say "motor horsepower" and said "horsepower" instead. If even the automotive experts were confused, it stands to reason that the general public would be as well.

If they were not confused, but there was a Tesla press release that simply said "691 horsepower", that would be even worse.

Either way, the evidence would be pretty compelling.

 

[Krugerrand]

It's saying something that even when I was attempting to lighten the mood in this thread by making a joke about the humorous image Auzie posted, and when she apparently took it in the spirit the joke was intended, based on her response, you need to jump in and actually turn it into serious personal criticism.

It's only a personal criticism if you make it one, Andy. I wasn't. I was simply pointing out there was another less typical way to look at it and equated it to Tesla, this forum, and this thread - David vs Goliath if you will.

 

[wk057]

So tell me this, what resources were at the consumers disposal before May that would allow the consumer to determine that the P85D really only made 463 hp and did not make 691 hp?

This is the point of the matter... and the naysayers will strategically ignore this question.

More importantly I don't think threads here on the topic count for anything official that a prospective customer should have to include in research even after May

 

[Andyw2100]

It's been said many times before, Tesla could have done a better job of educating their customers in this regard, no doubt. But those customers who have claimed to be buying specifically on the motor power horsepower number should also have done a better job of educating themselves before purchasing.

And what about those who never claimed to be buying specifically on the motor power issue? Are they not entitled to receive all the power they expected the car to have?

My point is that even if the overall power was just a small factor in people's decision to purchase the car, those people have not received all that they thought they were buying.

 

[P85DEE]

Recognized and accepted? If you're referring to R85, it's not even done:


"Thank you for your query about UN Regulation No. 85.
My understanding is that UN Regulation No. 85 (particularly Annex 6 dealing with the method for measuring net power and the maximum 30 minutes power of electric drive trains) is not clear enough at this stage to provide a clear answer to the question. The informal working group Electric Vehicles and the Environment (EVE) under the Working Party on Pollution and Energy (GRPE) is actually currently working on the proper determination of net power of new powertrain technologies such as hybrid electric and full electric vehicles."

Yet even if it wasn't, stating a motor's maximum capability is not a substitute for stating horsepower produced by the vehicle. When they were advertising 691 hp, nowhere did they state the actual horsepower so leaving that out would clearly and obviously mislead the consumer into believing 691 hp motor power is the actual horsepower produced the car as delivered.


These are all the reasons why their advertising was misleading:

• Tesla stated "691 hp motor power" on their website in multiple places. It did not state anywhere that "hp motor power" meant something other than hp produced by motors. There was no asterisk next to the horsepower spec stating that this is not actual horsepower produced by the production vehicle.
• The only place ECE R85 was referenced was inside the owner's manuals and even these didn't contain the that reference until after the P85D was already shipping. Are we to expect that prospective buyers doing their research are supposed find this reference first in the owner's manual?
• The subsystems page in the manual lists individual motor powers and does not add the front and rear motors together. In fact, if you add up front and rear motors, you get 728 hp, not 691 hp.
• Publications for over a year now have been publicizing 691 hp, not "hp motor power". Why hasn't tesla corrected them and why are they all still quoting 691 hp when the car only makes 463 hp to 535 hp at the motor shafts depending on state of charge?
• The sales people repeatedly stated the P85D makes "691 horsepower" without ever adding the term "motor power".
• Elon Musk himself has been quoted as saying the P85D has 691 hp and did not use the term motor power. He's also been quoted as saying the P85D has 50% more power than the P85.
• If they were going to list a combined horsepower number, they had an obligation to list the power that the P85D actually makes. They do for the other Model S trims. In addition, since the P85D is the only Model S to lose power as the SOC declines in it's normal daily driving range, they should have clarified that the 555 hp is only at 90% SOC or greater and that below that, power will decline as charge declines. This is not true on the other Model S variants until you get much deeper in to charge state.
• Ignoring repeated multiple letters and emails over MONTHS asking for clarification about the horsepower rating. We get responses for everything else we ask but those that inquired about this got nothing. If they were being so above board about this with nothing to hide, how come they refused to respond to the question of "why is my car only making 463 hp to 535 hp at the motor shafts when it was advertised at 691 hp"?
• Just because they test according to R85 to arrive at motor power ratings doesn't mean they get to use that in place of actual horsepower specified. Nowhere in the regulation does it state you can substitute horsepower rating of the vehicle with motor power capability of the drivetrain (with a power source not supplied). These are two entirely separate things. One is the actual horsepower produced by the vehicle. The other is an irrelevant specification that can't be reached with the shipping battery. It's only possible value would be knowing your drivetrain could handle more power if a battery with more power became available in the future.

Sorka we can argue this case in here, but first off, whatever "verdict" is reached in here is probably not indicative of what would happen in a real court of law.

Secondly, those who would be charged with arguing Tesla's position, are certainly much more capable than I, and those capable of representing potential plaintiffs in such litigation are very likely more capable than you.

That said, if this were to go before a jury, and I were on that jury, well then I can tell you how I'd vote, and I probably know how you would vote.

However if it is left up to a judge to decide, i.e. someone who is quite familiar with the law, I'd expect Tesla to win, and in a short time. That's if the case were not dismissed right away.

On a side note, do you think that your bullet notes above could be used by their attorneys to begin to lay the groundwork for preparing a defense now?

Or do you think that if their attorneys do see the above that they will just dismiss it?

I'd be willing to bet, that for every bulleted remark you made above, they already have a rebuttal. And they have months, years even, to fine tune those rebuttals.

They'll come with their experts, and they'll come prepared. Thanks to some of the arguments and positions already laid out in here for them.

 

[Krugerrand]

You are just flat out wrong.

Can you point me to the law then that says advertising terms need to be defined in the advertisement?

We have laws to prevent misleading advertising. There was almost no way the consumer could have figured out this was not what was being advertised. My sales rep told me the P85D made 691 hp. He did not use the term motor power.

That's two different things. The advertising said motor power horsepower. Your sales rep just said horsepower. So, if anything you have a beef with your sales rep giving you incomplete information, unless you're accusing the sales rep of intentionally misrepresenting the product? Did you ask your sales rep why they simply said horsepower while the website said motor power horsepower, and what the difference between the two was, if any?

So tell me this, what resources were at the consumers disposal before May that would allow the consumer to determine that the P85D really only made 463 hp and did not make 691 hp?

It is your job as the consumer to educate yourself. Buyer beware. We all learn that lesson the first time we've bought something and get something unexpected. Regardless if we get our money back or not from that experience, we learn the lesson and use it as we move through life.

It does not matter if the company makes acquiring information on a product easy or hard for you, but Elon has always been just a tweet away. Many here have e-mail addys for higher level executives. Heck, the question could have been asked (before anyone's purchase) here on this forum. Thread title: What the heck does 'motor power horsepower' mean? And I bet we'd have gotten the answer in swift order.

I said before, there's plenty of blame to go around for all parties. This is not one side is all wrong and the other side is all right.

 

[P85DEE]

If I were an attorney for the plaintiffs I might start by offering as evidence all the articles, written by automotive experts, that described the car as making 691 horsepower (not motor horsepower.) I would then argue that either all of the automotive journalists were confused, as evidenced by the articles they wrote, and their organizations published, or perhaps there was a press release that actually failed to say "motor horsepower" and said "horsepower" instead. If even the automotive experts were confused, it stands to reason that the general public would be as well.

If they were not confused, but there was a Tesla press release that simply said "691 horsepower", that would be even worse.

Either way, the evidence would be pretty compelling.

You're operating under the premise that the magazines "didn't know any better".

The articles which they wrote, do not necessarily indicate, and is not necessarily evidence, that they were "confused".

If the magazines, or those at the magazines, knew better than to go about stating "691 horsepower", but did so anyway in order to sell magazines, well then that's not Tesla's problem.

It's going to be hard for the magazines to contend that they were "duped", if no one at Tesla ever told them that the cars that they were handing over to them to review, had "691 horsepower", but they elected to write that anyway.

Also, it would be easy to prove that the magazines either knew better, or should have known better, than to go about exclaiming that the car had 691 horsepower if they had prior experience reviewing electric vehicles in the past. If they're reviewing such cars, well then they should have been familiar with the standards under which power is measured in them.

Most of the top auto magazines out there, do have some prior experience reviewing EVs.

But lets say for a minute that they were "confused". They should have been savvy enough to familiarize themselves with a product that they were reviewing.

Especially if they're holding themselves out to the public as being "experts", and holding out their periodical as being trustworthy.

That they didn't know, if that is indeed the case, only proves that they were just as lax, if not more lax, at doing their homework as that small group of consumers was.

And it's even worse and more inexcusable in their case, because they are supposed to be "automotive experts".

As mentioned before, it's going to be hard for the magazines to cry that they were "duped", if no one at Tesla ever told them that the cars that they were handing over to them to review, had "691 horsepower". If there is nothing in any manifest when the car was delivered stating "691 horsepower", and nothing in any paperwork accompanying the car when delivered to the magazine for testing saying "691 horsepower", then that bodes well for Tesla.

Tesla can't be held responsible because your writers and editors didn't get off their duffs before spreading information that Tesla themselves never said or decided to state something which Tesla never stated.

If any evidence can be found of Tesla having made any attempt(s) at correcting the magazine's writers or editors, emails, private correspondence, well then that also works in Tesla's favor.

If it can be shown that the magazine's editors knew or should have known, through prior review of electric vehicles, better than to do what they did, well then again, that bodes well for Tesla.

 

[Krugerrand]

And what about those who never claimed to be buying specifically on the motor power issue? Are they not entitled to receive all the power they expected the car to have?

My point is that even if the overall power was just a small factor in people's decision to purchase the car, those people have not received all that they thought they were buying.

Anyone buying a 'performance' model is responsible for understanding what that 'performance' entails, how it's achieved etc... if that 'performance' has any merit/standing in the final decision.

The argument made by many of the upset who are pursuing the issue is that indeed they did buy the car for the 'performance' aspect. Those not buying for the 'performance' aspect aren't likely to notice or care because they aren't buying it for the 'performance'. While a few of those latter will get on the bandwagon, most won't because it's not a metric they care enough about to spend resources on because again, they weren't buying for that reason.

Are they entitled to all the power they expected the car to have? Sure, but the reality is that since they weren't buying specifically or mostly for the power, then they don't actually have an 'expectation' of it to begin with and are likely out there driving around enjoying their car.

If I'm happy with what I got, regardless if I got the full shebang or not, I'm happy. I'm not going out of my way to become unhappy by chasing down that last bit of shebang. I understand you want to get everything you've paid for, while I'm happy to sometimes 'donate' to another cause even if that wasn't my original intention. We place significance on different criteria in life.

 

[WarpedOne]

This is the point of the matter... and the naysayers will strategically ignore this question.

Naysayers?
I rather be a naysayer than a (constant) whiner.

 

[vgrinshpun]

· ECE R85 was mentioned about 500 times.

And 485 of those were by vgrinshpun.

Well, Andy, your post about the ECE R85 seem to be a bit of an exaggeration (I guess nobody should be surprised about this). For the record, do you mind sharing where did you get the 485 from? Did you just made it up, or somebody shared this information with you?

 

[dsm363]

And what about those who never claimed to be buying specifically on the motor power issue? Are they not entitled to receive all the power they expected the car to have?

My point is that even if the overall power was just a small factor in people's decision to purchase the car, those people have not received all that they thought they were buying.

They are entitled to receive all the power they were legally promised. Note your words 'expected' and 'thought' not 'contractually obligated'.

And this labeling from both sides by some people (not you) is uncalled for. I doubt they'd appreciate terms like whiners or zealots being used any more that the dismissive term naysayer. Just lay out your case and be done with it.

 

[stopcrazypp]

And where did Tesla define the term "motor power"?


The consumer seeing "691 hp motor power" is going to assume that the car can actually produce 691 hp....at the motors as shipped and doesn't require a power source that is not shipped with the car. If they meant something other than this, they should have has an asterisk or some further explanation next to the term. I guess you've actually agreed with that already but the sticking point is whether Tesla was technically accurate or not despite misleading the customer.

With the disclaimer that none of us are lawyers here and can say with any certainty the specifics of the law and that whatever "case" we present here is ultimately meaningless in regards to an actual court trial:

We've been arguing over "motor power" for a while, but actually as per the US law, I don't think it is even necessary to use that phrasing at all. There is no law in the USA that requires a manufacturer to use a certain rating standard for horsepower. They are also not required to disclose the methods they got that horsepower rating from (either through asterisks or otherwise).

Just an example here. Ram advertises trucks using their 6.7L Cummins diesel engine as "385HP" and this is was under the SAE J1995 gross horsepower standard (the one we assumed was retired in the 1970s). Their gasoline engines are rated under SAE J1349 net. The difference between the two standards can be 35% (as evidenced by Cadillac Eldorado numbers).

However, if you look the Ram website there is absolutely no reference to the differences. There are no asterisks, no fine print, no wording that suggests that the diesel engine is rated under a different standard than the other engines. The only way I was able to tell was because there was an article written about it that interviewed Ram and Cummins representatives.

http://www.teslamotorsclub.com/show...-P90L/page59?p=1226889&viewfull=1#post1226889
http://www.teslamotorsclub.com/show...-P90L/page59?p=1226809&viewfull=1#post1226809

And as it relates to EVs, there is no SAE standard yet for EVs (so even if there was such a law requiring the use of SAE standards, such a standard doesn't exist for EVs). That means essentially none of the EV makers are using an industry accepted standard (I'm entertaining for a moment sorka's notion that ECE R85 is a "preliminary" standard, even though it was already written and latest version published in 2013 with original version put into force in 1995, unlike the SAE standard which is still in "working group" status).

As for a "misleading" statement, that is not determined by the plantiffs directly. That will have to be determined by a consumer survey and that does raise the question of how culpable the automaker is for misconceptions about horsepower in general. As I pointed out earlier, there is likely a good proportion of the general public that thinks horsepower is measured at the wheels. How liable is an automaker for such a misconception? Can they reasonably be legally required to educate all possible car buyers as to the way the industry rates horsepower?

 

[Andyw2100]

Well, Andy, your post about the ECE R85 seem to be a bit of an exaggeration (I guess nobody should be surprised about this). For the record, do you mind sharing where did you get the 485 from? Did you just made it up, or somebody shared this information with you?

You're kidding, right?

You did not quote me completely above. (Anyone can see that by clicking on the little blue icon to the right of my name, which will take them back to the original post.) I included a smiley after my comment about 485 because it was obviously a joke. And even if I had left out the smiley, it should have been incredibly obvious to anyone that if there were 500 references to one specific word in a thread that clearly I was not suggesting that any one person had made 485 of them. It's called humor.