Since the start of the year, voluntary recalls have led to early dismissals in several putative class action cases. Courts issuing these rulings have based their decision on one of two grounds: (1) the prudential mootness doctrine, and (2) lack of Article III standing.Continue Reading Recall Litigation Report: Voluntary Recalls Continue To Lead To Early Dismissal
This article was originally published in Automotive World.
The future of the mobility is dependent on AI, but without greater understanding among consumers, trust could be hard to build.
The mobility sector is keen to realise the full benefits of artificial intelligence (AI), not least to open up the revenues which data-driven connected services could offer. But moving forward, it must balance these opportunities with the rights of drivers, passengers and pedestrians. A number of concerns have already surfaced, all of which will become more pressing as the technology is further embedded into vehicles, mobility services and infrastructure.
Privacy and liability are two of the major challenges. As Christian Theissen, Partner, White & Case explains, mobility has become inherently connected to consumer habits and behavioural patterns, much like the e-commerce and social media industries. “The access, ownership, storage and transmission of personal data, such as driving patterns, must be taken into consideration by both lawmakers and companies gathering and using data,” he says. Meanwhile, in a world of AI-powered self-driving, at what point do regulators start blaming the machine when something goes wrong?
Part of the challenge in considering these issues is that as things stand, there is limited understanding among consumers around what rights there are. “Consumers appreciate AI,” says Cheri Falvey, Partner, Crowell & Moring, “and in particular the ease with which navigational apps help guide them to their destination. Whether they appreciate how their data is accumulating and developing a record of their mobility patterns, and what their rights are in respect to that data, is another question.”
There is often little precedent for regulators to rely on when making new policy in this arena, so it’s a good time to create a proactive regulatory strategy that invites discussion and collaboration from the start
This is in part because it is not always clear when AI is at work. A driver may register when a car’s navigation system learns the way home, but won’t necessarily realise that data on how a car is driven is being collected for predictive maintenance purposes, or that their data is being fed into infrastructure networks to manage traffic flow.Continue Reading Automakers and Regulators Must Educate Consumers on Mobility AI
Mopeds fall within NHTSA’s jurisdiction when they can go over 20 mph and are meant to be used primarily on roads. They’re considered “motor-drive cycles,” which are a subset of motorcycles. In NHTSA’s world, a motorcycle is “a motor vehicle with motive power having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground.”[1] A motor-drive cycle is “a motorcycle with a motor that produces 5–brake horsepower or less.”[2] Since these mopeds are regulated by NHTSA, they cannot be imported into or sold in the United States without complying with the FMVSS.[3]
Since NHTSA is focused on vehicles meant for road use, one might wonder whether the use of bike paths changes NHTSA’s jurisdiction over mopeds. Ultimately, though, NHTSA is focused on speed. According to NHTSA’s published interpretations of its regulations, the agency “believe[s] that vehicles with speeds of over 20 mph are capable of on-road operation,” and therefore fall within their purview. NHTSA makes classifications for vehicles in interstate commerce. The classifications are meant to be as applicable in California as they are in Tennessee or Maine. Some cities may have ample bike lanes such that it would be reasonable for the bikes to never be used on roads, but most do not. NHTSA’s classifications will not change from location to location.Continue Reading NHTSA versus CPSC Jurisdiction Over Certain Micromobility Products
As alluded to in last week’s post, Product Safety Regulations for Electric Bicycles and Scooters, micromobility products, such as e-bikes and scooters, fall at the intersection of jurisdiction between two distinct federal agencies: the Consumer Product Safety Commission (CPSC) and National Highway Traffic Safety Administration (NHTSA).
The CPSC is charged with protecting the public from unreasonable risks of injury or death associated with “consumer products.” “Consumer products” broadly defined includes any product for use in or around residences, schools and in recreation. CPSC’s jurisdiction expressly excludes “motor vehicles.”[1]
NHTSA, which is charged with ensuring safety on public road ways, has jurisdiction over “motor vehicles.” “Motor vehicles” are “vehicle[s] driven or drawn by mechanical power manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.”[2]
There is no hard-and-fast rule as to what constitutes a “motor vehicle” subject to NHTSA’s jurisdiction. Thus in determining whether a product is a “motor vehicle,” NHTSA typically considers such factors as:
Continue Reading 20 Miles Per Hour Divides NHTSA and CPSC Jurisdiction Over Micromobility Products
The big takeaways from The Autonomous Vehicle Safety Regulation World Congress centered on the importance of a federal scheme for AV regulation and the reality of the states’ interest in traditional issues such as traffic enforcement, product liability, and insurance coverage. In keeping with those messages, the World Congress kicked off with NHTSA Deputy Administrator and Acting Director, Heidi King, speaking about NHTSA’s goals and interest followed almost immediately with wide participation from the states including California, Michigan, and Pennsylvania, among others.
Deputy Administrator King emphasized NHTSA’s desire to foster an environment of collaboration among all stakeholders, including the states. Ms. King emphasized that safety remains the top priority at NHTSA. NHTSA has provided some guidance, and looks forward to hearing from stakeholders about the best way to support and encourage growth in autonomous vehicles. NHTSA wants to provide a flexible frame work to keep the door open for private sector innovation. It is necessary to build public trust and confidence in the safety of autonomous vehicles, and that can only accomplished by all stakeholders working together.
On March 30, 2017, Crowell & Moring’s Advertising & Product Risk Management Group hosted a webinar in which we discussed likely changes on the horizon at the Food & Drug Administration, Consumer Product Safety Commission, and the National Highway Traffic Safety Administration. We also discussed the relationship between these agencies and the Department of Justice,
More than two months after President Donald Trump’s inauguration, the automotive industry continues to face substantial uncertainty regarding the direction and priorities of the National Highway Traffic Safety Administration (NHTSA) over the next few years. For now, we can only guess. The new Transportation Secretary, Elaine Chao, was confirmed January 31. She takes over a NHTSA that had been working hard to keep up with emerging technologies – while acting increasingly muscular in its fines and other punishments under the prior administration.
For some safety agencies, it is much easier to read the tea leaves under the new administration. For example, at the Consumer Product Safety Commission, for example, we know that there is a new Republican Acting Chair (Ann Marie Buerkle), and that the five commissioners will remain 3-2 in favor of Democrats until at least October 2017 when Democratic Commissioner Marietta Robinson’s term on the Commission expires. See prior article here. And, following Acting Chair Buerkle’s public remarks last month at the annual conference of the International Consumer Product Health and Safety Organization (ICPHSO), we know that her top three priorities include: (1) collaborating with all product safety stakeholders; (2) taking a balanced and reasonable approach to regulation; and (3) expanding product safety education and awareness for consumers. See prior article here.
Thursday, March 30, 2017 1:00 – 2:00 p.m. EasternAggressive enforcement, massive recalls and proactive safety agendas left an indelible impression on the product safety world under the Obama administration. Product safety is no longer a bipartisan affair. But what will the Trump administration mean for your regulatory compliance programs? What changes will we see
Historically, as administrations change at the safety agencies, new priorities and shifting judgments on risk-based hazard assessment drive regulatory burdens up or down. The effect of President Trump’s executive order requiring the repeal of two rules for every one promulgated is yet to be seen when it comes to rulemaking at consumer facing safety agencies such as the National Highway Traffic Safety Administration, Food and Drug Administration, and Consumer Product Safety Commission.
The CPSC, as an independent agency, could take the position that the E.O. simply does not apply to them. The White House agrees. But the reality is that very few $100 million rules have been issued by the CPSC over the entire life of the agency. That is because its enabling statute favors voluntary industry standards over mandatory rules. Indeed, many of the CPSC rules affecting product performance have been mandated by Congress and could not be repealed by the agency absent an act of Congress. Still others may require some APA process before they can be legally repealed or changed.
Join Us for a Webinar – Thursday, March 30, 2017 1:00 – 2:00 p.m. EasternAggressive enforcement, massive recalls and proactive safety agendas left an indelible impression on the product safety world under the Obama administration. Product safety is no longer a bipartisan affair. But what will the Trump administration mean for your regulatory compliance programs? What changes will we see and how will they affect your safety program?
Join us for a roundtable discussion of what the regulated community can expect under the new administration at the Food & Drug Administration, Consumer Product Safety Commission and the National Highway Safety Administration. We’ll help you to forecast where policy shifts on by focusing on topical discussions of emerging products such as autonomous cars, drones, miniaturized cameras and e-cigarettes, and emerging issues including fire and lithium ion batteries, as well as hacking concerns on interconnected products.
Please click here to register for this webinar, or click here to view the event on Crowell.com.
Key topics to be discussed:
Continue Reading Webinar: The Safety Agencies in Transition – What to Expect at FDA, CPSC and NHTSA in the First 100 Days