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Last December, as news spread of the risks posed by air bags to children and other vulnerable groups, President Clinton promised that "car dealers will be able to deactivate the air bags of any owner who requests" it. The National Highway Traffic Safety Administration (NHTSA) acknowledged that air bags cause "an unacceptable risk in limited circumstances," and proposed to liberalize its current restrictions on deactivation, which require people to individually obtain written permission from NHTSA. Given what the agency admitted was a "need for immediate relief," it issued its proposal with a short, 30-day public comment period. As wrongheaded as the original air bag mandate may have been, the government, we thought, was going to act quickly to give people an escape hatch.
We could not have been more mistaken. It’s not that we were surprised by the anti-deactivation lobbying efforts of the auto industry and the "consumer safety" establishment. The former had both liability concerns and marketing issues – if consumers were allowed to freely deactivate their bags, wouldn’t they start to question why they had to pay for them in the first place? The latter regarded the mandatory air bag as one of its crowning achievements – a device so good you absolutely had to have it.
Still, we figured that these forces would be trumped by ethics. After all, NHTSA Administrator Ricardo Martinez was a physician. He would see through the pseudo-medical arguments against deactivation – the claim, for example, that the air bag was just another medical treatment whose side-effects were outweighed by its benefits. (Medical treatments, bear in mind, are rarely mandated; when they are, as in the case of some vaccines, they are not forced upon people who are likely to react badly to them).
Most importantly, as a physician Martinez would be steeped in the Hippocratic tradition of "first do no harm." But it now appears that Dr. Martinez has transformed the notion of "first do no harm to patients" into "first do no harm to your agency." On November 18, just as we went to press, NHTSA finally issued its decision. Deactivation on demand is still prohibited—that is, you cannot have a mechanic simply disconnect the device. But, beginning in mid-January 1998, you can get a retrofitted on-off switch if you certify to NHTSA that you fall into one of four "approved" risk categories: unavoidably using a rear-facing infant seat in the front passenger seat; unavoidably carrying children in that seat; sitting closer than 10 inches to the steering wheel; or having a medical condition that puts you at special risk.
Once NHTSA gets your paperwork (OMB Form No. 2127-0588), it will send you a permission slip, and then you can do what you should have been able to do long ago. Retro-fitting the switches will cost you more than simple deactivation, and you may have to lie if you don’t meet NHTSA’s criteria. (You might think this is a minor point; after all, given that NHTSA has turned us into guinea pigs, what’s the big deal about it forcing us to be dishonest guinea pigs? But then again, why should our expectations of government sink so abysmally low)?
Finally, deactivation even with switches is an option that may disappear once "advanced" air bags (NHTSA’s next project) make their debut. These are "smart" devices that can supposedly tailor their deployment to the characteristics of the seat’s occupant (and perhaps the characteristics of the NHTSA Administrator as well).
The gestation period for NHTSA’s proposal exceeded that of a human infant. Dr. Martinez’s course of inaction would have constituted malpractice if a private physician had engaged in it with respect to a single patient. When practiced by a federal regulator on the American public, however, it’s judgment-proof.
Contrast all this with the situation we’d have if there were no air bag mandate. There would still be a sizable market for air bags; the fact that unmandated side-impact bags are beginning to appear in some luxury cars demonstrates that many people want these devices. Others don’t, of course, and they would be served as well; air bags, with or without switches, would be standard equipment on some models, optional on others, and perhaps unavailable on still others. If you got stuck with them and didn’t want them, you could deactivate them without having to check your rearview mirror for black helicopters.
(This is the situation for antilock brakes, another unmandated safety device. Given the current dispute over whether these brakes improve overall safety, we should be thankful that NHTSA hasn’t mandated them. More specifically, we should thank the Republicans, since they occupied the White House when an antilock brake standard would have been most likely).
The real issue is not deactivation but the mandate itself. But both Congress and NHTSA have been occupying themselves with the specifics of air bag performance: depowering, belted vs. unbelted testing, dual inflation vs. single-level deployment. How many cars have any of these people ever built? Why are they spending so much time on a device whose safety benefits (a 10 to 15 percent reduction in fatality risk) are so vastly outweighed by the other automotive choices that we make, such as what size car we buy and what roads we drive on? Why do they think that these engineering issues stand any chance of being satisfactorily resolved on an across-the-board basis, let alone through the meat-grinder of politics?
The next time you see an air bag, remember: switches or not, it’s still not a choice; it’s a mandate.
Sam Kazman (email@example.com ) is CEI’s General Counsel.