The GR6 gear oil and the Magnusson Moss warranty act., Is it illegal for Nissan to tie-in its R35 Special transmission oil? Options

[NickTO]

I'd like to gather some informed opinion on here. I'm not a lawyer, but some of you might be.

We're all aware that Nissan states that the GR6 can only be serviced with the Nissan R35 Special transmission oil and there are no specs for it available from Nissan. We also know there are aftermarket alternatives that have sprung up.

Nissan seems to be going two ways. For other mechanical components using fluids, Nissan is carefully wording the requirements (in both the owner's manual and service manual) for motor oils, brake fluid and diff oils. While they specify which exact product is to be used (Castrol for diffs, Mobil 1 for engine, Nissan Dot4 for brakes) they're also careful to cover their legal ass by stating that 'equivalent' products may be used but may not perform as well.

However, in the case of the GR6, Nissan is going the other way, actually writing that using any other product may cause permanent damage.

So, how can this be legal? As far as I understand it (and I'm not a lawyer), the Magnusson Moss Warranty FTC act clearly states that "Tie-in" sales provisions are not allowed. I'm not yet touching on the part where Nissan doesn't need to cover warranty claims for products misuse, just the initial "tie-in" sales provision that "you have to use the R35 Special Gear Oil". At first glance, the fact that Nissan isn't even willing to put it in writing that an "equivalent" product can be used is illegal.

The other provision of the FTC, is that if there is indeed a requirement for a tie-in, that the FTC must grant a waiver (Nissan hasn't received it) or the manufacturer must offer the part for free (Free gear oil?).

So, even before the prospect of fighting with Nissan over a broken GR6 because an alternate gear oil was used (Pentosin FFL or Willall WR35TM), it seems that one could initially fight the mere requirement Nissan currently imposes to only use the Nissan R35 Special transmission oil via a complaint to the FTC.

The other side of the act that I don't really want to cover in this thread is about denial of warranty coverage because of a non-genuine replacement part (non Nissan transmission oil). The law is pretty clear that the manufacturer has to prove that the replacement part is inappropriate for the product, not the other way around (the owner having to prove the gear oil is good enough). Although the law is on our side, it's debatable as to whether anyone would want to take up that legal fight after a transmission break. Most people would prefer to dump the car or not have to wait months for the ligitation to run its course.

What does everyone think?



Edit:

Here's a bit of info I took from the FTC and another site relating to Pennzoil oil filters.:

"No warrantor of a consumer product may condition his written or implied warranty of such product on the consumer's using, in connection with such product, any article or service (other than article or service provided without charge under the terms of the warranty) which is defined by brand, trade, or corporate name; except that the prohibition of this subsection may be waived by the Commission if:

* (1) the warrantor satisfies the Commission that the warranted product will function properly only if the article or service so identified is used in connection with the warranted product, and
* (2) the Commission finds that such a waiver is in the 'public interest'."

* A clearly-written explanation of this provision is contained in Pennzoil Product Bulletin F-03-A, from which we quote the following: "Under the Magnuson-Moss Warranty Act and general principles of the Federal Trade Commission Act, a manufacturer may not require the use of any brand of filter, or any other part, unless the manufacturer provides the item free of charge under the terms of the warranty. An equipment manufacturer can obtain a waiver if it proves to the FTC that the equipment would function properly only if certain brands of filters or other parts are used. The FTC must be satisfied that this is in public interest, and this waiver must be published in the Federal Register. This is a 'waiver' of the prohibitions on conditions of written warranty.

Should a customer be told that only a brand name oil filter can be used to protect a warranty, the customer should ask to have the statement put in writing or demand that the specific product be provided free of charge. Should these demands be rejected, then the customer should request that he or she be provided with a copy of the warrantor's approved FTC waiver. If no waiver is produced and the customer is charged for the product, there may be a violation of federal law. The customer should also be aware that he or she may have additional legal rights under applicable state warranty law which may vary from state to state."


This post has been edited by NickTO: Dec 2 2008, 02:03 PM

[illpayne]

So the dealer should be supplying the the oil and/or filters free of charge?

[aliasvfx]

So the dealer should be supplying the the oil and/or filters free of charge?

+ 1 would be nice !

[NickTO]

So the dealer should be supplying the the oil and/or filters free of charge?

Well, legally they would have to if they claim you can ONLY use their product. In the specific case you mention of engine oil and oil filter, the answer is NO. they don't have to since you can use alternatives.

Throughout the Nissan documentation , they always write stuff like "Use Nissan Long Life Coolant (or equivalent)" .. the "or equivalent" bit is their way of complying with the law, because they cannot outright state that you have to use a specific maintenance product, otherwise they have to provide it free of charge. That "or equivalent" is everywhere in the documentation, some of the more critical parts also state that you may not get the same performance by using an alternative. In the case of the gearbox, they just state that you have to use R35 Special oil or your transmission will fail.

The way I see it written on most legal sites is through a 3 step process:

If the garage / service shop insists you can only use their product:

1. Ask to get that in writing on your bill "must use xxx as per yyy instructions"

2. Ask to see their FTC waiver for the tie in of this product.

if they can't show the waiver:

3. Inform them that they've shown in writing that there's no alternative product, and by law they must provide it free of charge.

At that point, whether you get your way or not is up to debate! you may have to sue to get your way!

What I'm getting to however, is that there's probably a pre-empting process that could be used, which is simply to complain to the FTC that Nissan requires a tie-in for the maintenance of the gearbox.

The other way, is to go through the 3 steps above when getting the GR6 fluid changed by Nissan as part of the service, and tell them they owe you the $1000 it cost.


Quick Edit:

Here's the difference in statements from the Owner's Manual booklet.

When referring to the Power Steering Fluid (PSF) requirement, Nissan writes this:

The "Or Equivalent" bit is present.

For the GR6 however:



This post has been edited by NickTO: Dec 2 2008, 04:30 PM

[expo]

Hey guys,

I just filed a complaint with the FTC regarding this matter. You can do it online in about 3-5 minutes.

I suggest everyone does.

Thanks,

Link

https://www.ftccomplaintassistant.gov/FTC_W...rd.aspx?Lang=en

[Ben Linney GTC]

In Europe something called block exhemption means Nissan must make available to all that asks, informations and tools. And that warranty can be maintained uneffected by the aftermarket. all to do with fair competition etc...

I thought something similar was the case in the US too hense why C3's are being made available to the aftermarket... but In Asia and oz these rules do not apply and Nissan has full controll who gets a C3.

[zeyd]

Wait, so in europe you can put whatever you want but it must be done by nissan? or i didn't get it at all ?

[losgatosGTR]

I followed expo's lead....

Hey guys,

I just filed a complaint with the FTC regarding this matter. You can do it online in about 3-5 minutes.

I suggest everyone does.

Thanks,

Link

https://www.ftccomplaintassistant.gov/FTC_W...rd.aspx?Lang=en

Use this info or something like it:

Nissan is violating the Magnuson-Moss Warranty Act and general principles of the Federal Trade Commission Act by REQUIRING owners of 2009 Nissan GTR's to purchase a "Special" Nissan branded transmission Oil for routine transmission oil changes or your warranty will be violated. Nissan does NOT have an FTC waiver for this R35 Transmission Oil. The special and extremely expensive transmission oil is called "Genuine NISSAN Transmission Oil R35 Special” The cost is $70 per quart and Nissan does not allow any equivalent oils to be used. A transmission fluid change requires at least ten (10) quarts to be used and purchased at a total cost of over $700 in some cases. Price may vary a little at different Nissan dealerships.

Page 285 section 9-2 of the 2009 Nissan GTR Owner’s Manual clearly states the following:"The use of fluids and lubricants other than the specified may cause vehicle malfunctions and result in non-warranty vehicle repairs."

The Magnuson-Moss Warranty Act and general principles of the Federal Trade Commission Act clearly state the following:
"No warrantor of a consumer product may condition his written or implied warranty of such product on the consumer's using, in connection with such product, any article or service (other than article or service provided without charge under the terms of the warranty) which is defined by brand, trade, or corporate name; except that the prohibition of this subsection may be waived by the Commission if:

* (1) the warrantor satisfies the Commission that the warranted product will function properly only if the article or service so identified is used in connection with the warranted product, and

* (2) the Commission finds that such a waiver is in the 'public interest'."

* A clearly-written explanation of this provision is contained in Pennzoil Product Bulletin F-03-A, from which we quote the following: "Under the Magnuson-Moss Warranty Act and general principles of the Federal Trade Commission Act, a manufacturer may not require the use of any brand of filter, or any other part, unless the manufacturer provides the item free of charge under the terms of the warranty. An equipment manufacturer can obtain a waiver if it proves to the FTC that the equipment would function properly only if certain brands of filters or other parts are used. The FTC must be satisfied that this is in public interest, and this waiver must be published in the Federal Register. This is a 'waiver' of the prohibitions on conditions of written warranty.

Should a customer be told that only a brand name oil filter can be used to protect a warranty, the customer should ask to have the statement put in writing or demand that the specific product be provided free of charge. Should these demands be rejected, then the customer should request that he or she be provided with a copy of the warrantor's approved FTC waiver. If no waiver is produced and the customer is charged for the product, there may be a violation of federal law. The customer should also be aware that he or she may have additional legal rights under applicable state warranty law which may vary from state to state."
Please resolve this issue by informing Nissan that they must provide owners of the 2009 Nissan GTR FREE quarts of Nissan R35 transmission oil or provide a recommendation of an equivalent commercially available alternative oil that does not violate the GTR warranty. This needs to be in writing.

Thank you,


Thanks guys

[MindlessOath]

because the R35 is dual clutch and there are so few of its kind, and the characteristics of this dual clutch or not simular to others, and because it generates way more heat... i belive they want to basically say use there oil cause if you use something else it could really cause issues. and its true, if you dont use a dual clutch oil that is simular or better, it will cause issues.

so i think its a bit of a scare tactic. i dont think they mean you have to use this no matter what. but alot of customers are NOT enthusists, they dont know the differnce between oils... so if they were not told to use this, they could get something else and ruin the car.

im not sure im explaining this good enough. but your right. the way nissan explain it, they breaking this law or whatever.

someone needs to goto a dealer and talk to them about this act and the better produced oil. in fact, give them links to the few threads about willall oil etc.

[NickTO]

because the R35 is dual clutch and there are so few of its kind, and the characteristics of this dual clutch or not simular to others, and because it generates way more heat... i belive they want to basically say use there oil cause if you use something else it could really cause issues. and its true, if you dont use a dual clutch oil that is simular or better, it will cause issues.

so i think its a bit of a scare tactic. i dont think they mean you have to use this no matter what. but alot of customers are NOT enthusists, they dont know the differnce between oils... so if they were not told to use this, they could get something else and ruin the car.

im not sure im explaining this good enough. but your right. the way nissan explain it, they breaking this law or whatever.

someone needs to goto a dealer and talk to them about this act and the better produced oil. in fact, give them links to the few threads about willall oil etc.

Thanks for your post, I see your point 100%, but I have to agree and disagree on different points.

You\'re right, it\'s a scare tactic.

However, I think you\'re wrong when you say \" i dont think they mean you have to use this no matter what \" .
I believe they are by the way they are wording it in the Owner/Service Manual: \"Use only Transmission Oil R35 Special. Do not mix with other fluids\"

That\'s very specific.

same for the diff oil.

In the Owner\'s Manual, there\'s a section titled: GT-R Special Specification Parts.

It goes like this (verbatim):

Only use the following required fluids and parts
in the GT-R. (see the emphasis? it\'s not \"use this recommended fluid\". It\'s \"required\" fluid. I believe this is a violation of the Magnusson Moss Warranty act)
ENGINE OIL
Mobil 1, 0W-40 (100% synthetic oil)
Mobil 1, 0W-40 (100% synthetic) is the factory
fill oil. The VR38 engine with its plasma-sprayed
bores was developed using this oil. NISSAN
cannot ensure proper engine operation and
durability if other 0W-40 synthetic oil is used. ( I believe here they\'re allowing other oils, but decreased performance)
If Mobil 1, 0W-40 is not available, Mobil 1,
10W-40 (100% synthetic) may be used; however,
some performance loss may be noticed.

TRANSMISSION OIL
Genuine NISSAN Transmission Oil R35
Special (100% synthetic oil)
The GT-R uses a multiple-disc dual wet clutch
transmission. The specially developed transmission
oil maximizes the friction characteristics of
the clutch and the lubrication of the gear
bearings. The use of additives is prohibited.

DIFFERENTIAL OIL (front and rear)
Castrol SAF-XJ 75W-140 (100% synthetic
oil)
The GT-R uses a 1.5-Way mechanical Limited
Slip Differential (LSD) to maximize driving power
under many operating conditions. Use the
specified differential oil to maximize the perfor
mance of the LSD. Also use the same oil for the
front differential. The use of additives is
prohibited. ( I have to correct my previous statement, Nissan doesn\'t even offer an acceptable \'equivalency\')

BRAKE FLUID
Genuine NISSAN Brake Fluid R35 Special
DOT4

Genuine NISSAN Brake Fluid R35 Special
DOT4 is the factory fill brake fluid. The Vehicle
Dynamic Control (VDC) unit and other related
parts were specially designed for this brake
fluid. NISSAN cannot ensure the best performance
and proper operation of the vehicle if
other brake fluid is used. (Again, I think they\'re leaving the door open for equivalent products that may not perform as well).

If I look at the service manual, that\'s what it says about the oil:

It is essential to choose the correct grade, quality, and viscosity engine oil to ensure satisfactory engine life and performance. Mobil1, 0W-40 (100% synthetic) is the factory fill oil. The VR38 engine with its plasma-sprayed bores was developed using this oil. NISSAN cannot ensure proper engine operation and durability if other 0W-40 synthetic oil is used. If Mobil1, 0W-40 is not available, Mobil1, 10W-40 (100% synthetic) may be used; however, some performance loss may be noticed.
Using an engine oil other than that specified could adversely affect the engine.

I think it\'s borderline.. referring to the act and looking at the statement above that\'s summarized as \"Use Mobil1 0W40 or else!\":

No warrantor of a consumer product may condition his written or implied warranty of such product on the consumer\'s using, in connection with such product, any article or service (other than article or service provided without charge under the terms of the warranty) which is defined by brand, trade, or corporate name; except that the prohibition of this subsection may be waived by the Commission

When I look at the GR6 oil fill procedure, the Service Manual has a Caution statement in red:

■ CAUTION ■

• Always use the specified transmission oil. In addition, always use the filler after cleaning. If use/mixed use/misuse of the transmission oil other than the specified brand occurs, the original performance cannot be obtained or it may cause serious malfunctions.
  
• Check that dust does not mix.
  
• Always use paper towels. Never use waste cloth.

So \'misuse of oil other than the specified brand\' is pretty strict. If my car will suffer serious malfunctions if I use anything else, then the Act says the article has to be free.


Now, the final nail in the coffin. Is a \"serious malfunction\" caused by improper fluids grounds for \"denied warranty repair\" ?

There\'s a section specific to \"Fluids and Lubricants\" in the service manual, in there Nissan adds footnotes to the required lubes:

Goes like this:

Engine Oil: Mobil 1, 0W-40*¹
Coolant: Genuine NISSAN Long Life Antifreeze/ Coolant or equivalent
Transmission Oil: Genuine NISSAN Transmission Oil R35 Special*²
Differential gear oil: Castrol SAF-XJ 75W-140*²
Power steering fluid (PSF): Genuine NISSAN PSF or equivalent*³
Brake fluid: Genuine NISSAN Brake Fluid R35 Special DOT4*⁴
Windshield washer fluid: Genuine NISSAN Windshield Washer Concentrate Cleaner & Antifreeze or equivalent

Now, each footnote I believe reveals to what degree Nissan allows an equivalent fluid. Note how the Coolant, Power Steering and Windshield washer have an explicit \"or equivalent\".

The footnotes:
*1: Mobil1, 0W-40 (100% synthetic) is the factory fill oil. The VR38 engine with its plasma-sprayed bores was developed using this oil. NISSAN cannot ensure proper engine operation and durability if other 0W-40 synthetic oil is used. If Mobil1, 0W-40 is not available, Mobil1, 10W-40 (100% synthetic) may be used; however, some performance loss may be noticed. For further details, see “Engine Oil Recommendation”.

*2: The use of fluids and lubricants other than the specified may cause vehicle malfunctions and result in non-warranty vehicle repairs.
(Please note: The BOLD font is not my doing, it\'s the only bold statement in that section. Bold denotes emphasis from Nissan)
*3: DEXRON™ VI type ATF or Canada NISSAN Automatic Transmission Fluid may also be used.
(So any Dexron VI ATF will do)
*4: Genuine NISSAN Brake Fluid R35 Special DOT4 is the factory fill brake fluid. The Vehicle Dynamic Control (VDC) unit and other related parts were specially designed for this brake fluid and NISSAN cannot ensure the best performance and proper operation of the vehicle if other brake fluid is used.


When I read this, I think that whenever Nissan \"cannot ensure best performance and proper operation\" might actually be a violation (in my own personal non-legal opinion). However, when Nissan bolds a statement saying essentially: use this or we void your warranty claim on a failure. Then they are clearly (in my mind) violating the Act.


In the end, it comes down to two statements:

Nissan: *2: The use of fluids and lubricants other than the specified may cause vehicle malfunctions and result in non-warranty vehicle repairs.

Vs

FTC: No warrantor of a consumer product may condition his written or implied warranty of such product on the consumer\'s using, in connection with such product, any article or service (other than article or service provided without charge under the terms of the warranty) which is defined by brand, trade, or corporate name; except that the prohibition of this subsection may be waived by the Commission

Sorry for the rant!




This post has been edited by NickTO: Dec 2 2008, 11:37 PM

[losgatosGTR]

Anyone have any more info on this subject? I called the FTC and they said I have to call my states attorney general to get advice on what to do next.

[NickTO]

Anyone have any more info on this subject? I called the FTC and they said I have to call my states attorney general to get advice on what to do next.

Heya! Happy to see someone actually followed up with the FTC. Did you contact your FTC state office? ( SEMA lists it as Los Angeles (310) 235-4000 )

Are you planning on soliciting the State AG? (I hope so!)

Let me know if you need help gather documentation.

Cheers

[Oo oO]

"
FTC: No warrantor of a consumer product may condition his written or implied warranty of such product on the consumer\'s using, in connection with such product, any article or service (other than article or service provided without charge under the terms of the warranty) which is defined by brand, trade, or corporate name; except that the prohibition of this subsection may be waived by the Commission"

This portions of the statement from the FTC in NickTO's post, "which is defined by brand, trade, or corporate name" could be interpreted as not exactly being applicable since they can argue that it goes beyond branding, that the different fluids actually have a different chemical composition and thus inherent differing properties and results (and that these results could not have been anticipated and thus warranted; the same idea as with reprogramming the ECU I imagine, the manufacturer can stand on the basis that they cannot warrant the product once it has been altered beyond reasonably anticipated parameters on items that effect the very key functions of the car).

I don't know but am just being the voice of the devil's advocate per se. I don't mean to be negative, however I personally have not heard of many successful uses of the MMA (and it didn't do much for me when I mentioned it during service disputes, but I didn't have the time or money to sue and take it to the next level) - I'd love to know otherwise though, as a whole the quick scapegoating of car mods by dealers , down to any little thing, has gotten out of hand.

[jaspergtr]

hey, i think i just found out another possible reason the gt-r's are being held at port.

[Oo oO]

A rushed thought as I am on my way out - perhaps another argument regarding the transmission fluid could be made that it is anticompetitive, that it needs to be made available via other sources and not price fixed... Something along those lines..

[NickTO]

"
FTC: No warrantor of a consumer product may condition his written or implied warranty of such product on the consumer\'s using, in connection with such product, any article or service (other than article or service provided without charge under the terms of the warranty) which is defined by brand, trade, or corporate name; except that the prohibition of this subsection may be waived by the Commission"

This portions of the statement from the FTC in NickTO's post, "which is defined by brand, trade, or corporate name" could be interpreted as not exactly being applicable since they can argue that it goes beyond branding, that the different fluids actually have a different chemical composition and thus inherent differing properties and results (and that these results could not have been anticipated and thus warranted; the same idea as with reprogramming the ECU I imagine, the manufacturer can stand on the basis that they cannot warrant the product once it has been altered beyond reasonably anticipated parameters on items that effect the very key functions of the car).

I don't know but am just being the voice of the devil's advocate per se. I don't mean to be negative, however I personally have not heard of many successful uses of the MMA (and it didn't do much for me when I mentioned it during service disputes, but I didn't have the time or money to sue and take it to the next level) - I'd love to know otherwise though, as a whole the quick scapegoating of car mods by dealers , down to any little thing, has gotten out of hand.

Nice post. Definitely worth discussing.

Assuming your arguments are correct. Nissan claims any alternative fluids are inherently too different in chemical properties and only theirs can work, then I think Nissan is still in a Catch-22:

1. First, Nissan can argue, but needs to prove this before denying a claim. The onus is on them to demonstrate other fluids aren't appropriate.

2. If Nissan can prove #1, then its "Uniquely qualified" GR6 transmission oil must be provided free of charge unless they have a FTC waiver. (Which they don't).

thoughts?

[losgatosGTR]

Anyone have any more info on this subject? I called the FTC and they said I have to call my states attorney general to get advice on what to do next.

[westmc]

Any news on this? It seems that if they don't have a waiver then they are in clear violation of the law.

[kungura]

great stuff, can't wait to see what happens next

[Skyline8409]

Besides WillAll who makes a fluid other than Nissan? Besides WillAll who sells WillAll's fluid?

I don't know specifics but I would assume that you have to produce X amount of a fluid and have some kind of standard that the transmission fluid can meet.

When the GTR was released who else made fluid? Nobody. How many people as of right now make GR6 fluid?