Consumer Reports Wants More Tesla Defect Probe Transparency After Crash Subpoena Revealed

Consumer Reports wants U.S. safety regulators to provide more information to the public on crash investigations involving Tesla’s Autopilot system and greater scrutiny of safety claims following the release of communications between federal officials and the electric-car maker on these matters.  

The nonprofit membership group best known for its magazine and product reviews made its call a day after self-described legal transparency website PlainSite published 79 pages of emails and other communications between Tesla and the National Highway Traffic Safety Administration, obtained using a Freedom of Information request. The previously undisclosed material included a cease-and-desist letter sent to CEO Elon Musk by NHTSA in October 2018, objecting to how Tesla characterized federal crash test results for its Model 3 sedan in a company blog. The document dump also revealed a subpoena from NHTSA seeking information on Tesla crashes, including a fatal March 1 accident in Florida involving a 2018 Model 3 that happened while the Autopilot driver-assist feature was being used.  

“We’ve been calling for an investigation into potential defects in Tesla’s Autopilot system after multiple crashes,” David Friedman, Consumer Reports’ vice president for advocacy, told Forbes. “Consumers should be aware when an investigation has been opened. Defect investigations are critical.”

Without directly responding to Consumer Reports' push for greater transparency, Tesla said in a statement it's in regular communication with NHTSA and shares information, "including Autopilot safety performance, which we also report publicly on our website." The documents and subpoena posted by PlainSite, are “business as usual and reflect an open and collaborative relationship between Tesla and NHTSA," the company said.

"We routinely share information with the agency while also balancing the need to protect customer privacy. Tesla has required subpoenas when customer information is requested in order to protect the privacy of our customers.”

The newly released documents also show NHTSA asked the Federal Trade Commission to look into whether Tesla’s crash safety claims about Model 3 were “unfair or deceptive acts.” The Silicon Valley carmaker touted Model 3’s crash-test performance in an Oct. 7 blogpost, claiming the car achieved “the lowest probability of injury of any vehicle ever tested by NHTSA.  

The matter comes as Tesla expands sales of its speedy, stylish battery-powered vehicles that CEO Musk consistently promotes as both the most environmentally friendly and safest on the market. Along with the 3, Tesla’s Model S sedan and X crossover also received 5-Star ratings in NHTSA crash tests, currently the highest level. 

Yet NHTSA warned it’s “impossible to say based on frontal crash results or Overall Vehicle Scores whether the Model 3 is safer than other 5-Star rated vehicles.” In an October 31 response, Tesla Deputy General Counsel Al Prescott said “we disagree with the agency’s position,” that statements in the blog were “neither untrue nor misleading,” according to the PlainSite documents. 

The company on Wednesday referred to Prescott's previous responses on the matter.

"Tesla's blog statements are entirely based on actual test results and NHTSA's own calculations for determining relative risk of injury and probability of injury," citing the test performance of its Model 3 Long Range rear-wheel-drive version. As Prescott wrote last October, "we do not see a reason to discontinue use of our safety blog or these statements as long as no other vehicle surpasses the Model 3 Long Range RWD's Vehicle Safety Score and overall probability of injury."

Tesla is the top U.S. seller of electric cars, yet in its tenth year as a public company it struggles to attain sustainable profitability and meet Musk’s highly ambitious goals, including ever-higher production volume and becoming the first seller of fully self-driving consumer vehicles. Musk in April suggested the latter goal could be attained by as early as 2020, pending regulatory approval. 

Friedman, who previously was as the Deputy and Acting Administrator of NHTSA, said that had the FOIA materials not been released, the public wouldn't know about the accident subpoena. Currently, NHTSA’s website where consumers can look up recalls and safety information about vehicles by model year, brand and VIN doesn’t show an active investigation into Model 3s produced in 2017, 2018 or 2019.