Safety Recalls May Be ‘Voluntary,’ but Are Required by Law

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By CHRISTOPHER JENSEN
“A voluntary safety recall.”
I have been covering automotive safety for about 30 years, including now writing a weekly roundup of safety recalls for Wheels, and whenever a carmaker recalls a vehicle for a safety problem, it often describes it as voluntary.
But there is no such thing as a voluntary recall for a safety-related defect, because the automaker has no choice, said Allan Kam, a safety consultant in Bethesda, Md., who once worked at the National Highway Traffic Safety Administration as the senior enforcement attorney.
“It is like saying I voluntarily paid my income tax,” Mr. Kam said. “I did it because the law requires me to.”
The pertinent law for automakers is the National Traffic and Motor Vehicle Safety Act of 1966. It says automakers are required to notify N.H.T.S.A. and consumers and conduct a recall when there is a safety defect.
An automaker has five business days to inform the safety agency of a problem after discovering a safety defect.
“They really have no choice,” said Clarence Ditlow, the executive director of the Center for Auto Safety. If an automaker refuses, the agency can begin legal proceedings.
Toyota earlier this year paid a record $16.4 million after the agency accused it of not immediately reporting a problem with “sticky” gas pedals. Toyota denied wrongdoing and said it was paying to avoid an expensive legal case.
Wade Newton, a spokesman for the Alliance of Automobile Manufacturers, said automakers simply use the term because N.H.T.S.A. “uses it when talking about various types of recalls. We didn’t create the term.”
Indeed, at least one consumer pamphlet prepared by the National Highway Traffic Safety Administration says that sometimes automakers “voluntarily” recall vehicles.
Mr. Kam said there were several important cases in the 1970s when automakers fought the relatively new agency in court over recalls and lost.
One of those cases came in 1975 and involved the breaking of three-piece wheels on some 1960–65 three-quarter-ton General Motors pickups.
In that case, General Motors acknowledged that the wheels (manufactured by its supplier, Kelsey-Hayes) “were indeed breaking, but contended that the agency had not shown that the failures did not result from owner misuse,” Mr. Kam wrote in a 2001 paper “N.H.T.S.A. Safety Defect Investigations.”
Mr. Kam wrote that the G.M. wheels case was “seminal” in helping to legally define what constituted a defect.
“The court in wheels found that it was not a sufficient defense for a manufacturer to assert that owners exceed weight limitations or fail to properly inflate their tires to manufacturers’ specifications, provided that the owner abuse was not so gross as to be unforeseeable,” Mr. Kam wrote.
“The court held that a ‘common sense’ approach requires manufacturers to build in some margin of safety to protect against failure during day-to-day operation, although not against gross owner abuse. As an example of a common sense approach, the court indicated that it would not find defective a wheel that collapsed under a load four times that specified by the manufacturer, but that twice the load specified could be deemed foreseeable,” he wrote.
General Motors recalled about 123,000 vehicles.
Mr. Kam said those cases in the 1970s were important in establishing case law and over the following years automakers were far less likely to fight N.H.T.S.A. in court, although they might lobby hard. They also learned that even though they might win in court, the public relations damage of fighting a recall could be terrible, he said.
But, he said, while automakers may want to make it look like they are engaging in a goodwill gesture legally, there is no such thing as a voluntary safety recall.