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Senators urge FTC to investigate Tesla ‘Autopilot’ marketing

Call comes as federal safety regulators probe crashes

Tesla vehicles stand outside of a Brooklyn showroom and service center in 2018 in New York.
Tesla vehicles stand outside of a Brooklyn showroom and service center in 2018 in New York. (Spencer Platt/Getty Images)

A pair of Democratic senators on Wednesday urged the Federal Trade Commission to investigate how auto manufacturer Tesla is marketing its self-driving features to customers.

The letter, sent to FTC Chair Lina Khan, comes in the wake of an announcement Monday by the National Highway Traffic Safety Administration that the agency would investigate the company following 11 crashes where Tesla’s so-called “Autopilot” system was engaged. Most of those crashes took place after dark.

Sens. Richard Blumenthal, D-Conn., and Edward J. Markey, D-Mass., argue in their letter that the company has falsely advertised its vehicles’ self-driving capabilities, including through a 2019 YouTube video that the company posted on its channel showing a Tesla operating without the driver’s hands on the wheel.

The company’s marketing, they wrote, “has repeatedly overstated the capabilities of its vehicles, and these statements increasingly pose a threat to motorists and other users of the road.”

Blumenthal and Markey, both members of the Senate Commerce, Science and Transportation Committee, asked Khan to open an investigation into “potentially deceptive and unfair practices in Tesla’s advertising and marketing of its driving automation systems and take appropriate enforcement action to ensure the safety of all drivers on the road.”

The FTC’s mission is to prevent business practices that are anticompetitive or deceptive or unfair to consumers.

According to the Society of Automotive Engineers, there are six levels of vehicle automation, ranging from none (Level 0), to completely driverless vehicles.

The bulk of the vehicles on the road that use automated technology employ Level 2 automation, described by the NHTSA as technology that can control both steering and braking/accelerating simultaneously under some circumstances. That technology still requires the human driver to pay full attention at all times and perform the rest of the driving task.

Although Tesla claims full self-driving capabilities, it admitted in a Dec. 28 letter from its associate general counsel Eric C. Williams to the California Department of Motor Vehicles chief of the autonomous vehicles branch, Miguel D. Acosta, that the technology was only at Level 2.

Markey and Blumenthal, who applauded NHTSA’s decision to investigate the accidents, argue that the company should not market its vehicles as fully autonomous, arguing “there are no fully autonomous vehicles currently available on the market.”

“Understanding these limitations is essential, for when drivers’ expectations exceed their vehicle’s capabilities, serious and fatal accidents can and do result,” they wrote.

Cathy Chase, president of Advocates for Highway and Auto Safety, said her organization has long pushed for NHTSA to begin rule-makings to regulate autonomous vehicle technologies, because “right now, Tesla or any manufacturer can put a Level 2 or higher vehicle on the road as long as they meet current federal motor vehicle safety standards.”

“Consumers don’t realize there are no regulations for these advanced systems,” she said. “I’d venture to argue most people assume since the vehicle is being sold, there are some regulations involving them, but there are none.”

A five-year surface transportation reauthorization bill passed by the House on July 1 would require the Department of Transportation to conduct a rule-making related to autonomous driving technology within two years of enactment. The recent Senate-passed bipartisan infrastructure bill requires a rule-making, but without a deadline.

Such a distinction is important, she said, because without a date certain, “these rule-makings could go on for years,” Chase said.

Of the two bills, the Senate version is more likely to become law, with the House expected to take it up in tandem with a $3.5 trillion budget reconciliation measure as soon as September.

NHTSA previously investigated Tesla after a 2016 crash involving the Autopilot system in Florida, but took no action after that investigation. Congress, too, has held hearings on the technology, with the House Energy and Commerce convening a hearing in February 2020 and the Senate Commerce, Science and Transportation Committee convening a hearing in April 2021.

It’s unclear whether the FTC will respond to the senators’ calls for an investigation. An FTC spokesman confirmed that the agency has received the letter but would not comment on it.

But Blumenthal, in an interview, said that the agency has repeatedly been asked to act on Tesla’s claims of self-driving. 

In 2018, the Center for Auto Safety and Consumer Watchdog asked the agency to investigate the company’s advertising and marketing of Autopilot after two fatal crashes. And NHTSA itself sent Musk a cease-and-desist letter in 2018 over his claims about the vehicles’ safety asking the FTC to investigate the claims under its “unfair or deceptive acts practices” authority, according to documents acquired via a Freedom of Information Act (FOIA) request by legal nonprofit and originally reported on by The Verge.

“This kind of claim is exactly in the FTC’s wheelhouse, because it’s not only hurting consumers economically but also putting them at risk of truly deadly consequences,” Blumenthal said, saying he’d be “surprised and disappointed” if the agency fails to open an investigation.

Tesla representatives did not immediately respond to a request for comment on the senators’ letter, though Tesla co-founder and CEO Tesla Elon Musk has repeatedly defended the vehicle’s Autopilot system on Twitter. He tweeted April 17 that Autopilot reduces crashes both when the system is active (the car is driving itself) or passive (the car intervenes only when crash probability is high).

“Doesn’t mean there are no crashes,” he tweeted, “but on balance, Autopilot is unequivocally safer.”

Blumenthal and Markey frequently team up on consumer and safety issues, writing letters urging airlines to make pandemic related flight credits valid indefinitely and urging NHTSA to address cybersecurity vulnerabilities in internet-connected vehicles.

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