Betterthanstock,
I took what RMalone wrote to mean making it illegal, not a lawsuit.
All software tampering is illegal. That does not mean that they are enforcing it, but if you, let's say, got a new person in charge of the EPA, they could shut down all these companies overnight. Only products that carry an EPA or CARB approval are legal, which is a very expensive process, similar to what Cummins would have to go thru to certify a new engine. As far as safety concerns (which this issue is) the DOT enforces that, not the EPA. By the way, look at all cheap fog/driving lights, and they all say "off road use only". They must be DOT approved. Same for mufflers, and even Donaldson classifies their aftermarket mufflers as off road use only, unless you replace it with the identical model that came on your truck (this is for EPA noise regulations)
It is easier to certify emissions neutral products, like air filters, mufflers, underdrive pulleys. Anything that has the potential to change emissions at all, is illegal until they are EPA and CARB certified. That's 99% of what's out there.
But what if someone was using the smarty on private property and it malfunctioned by hanging the throtte and it caused an accident.
Then the owner of the racetrack, or farm, would be liable. That's why racetracks have rules about roll cages, exhaust bolts to catch flying turbo wheels, etc.
I am not saying they are not trying to fix this, but don't assume that anything that is sold is legal. Possession of a (smarty/bullydog/tst/whatever) is not enforced like possession of drugs, but that does not mean it is legal.
I have once run across a very scary EPA standard letter on the web, that they will send to a company that they suspect has been selling illegal products, and one of the questions is something like "what have you done to ensure that your products labeled off road use only, are actually only used offroad?" The fines are so steep, thousands per such product sold, that they (manufacturers/distributors) would all run away immediately.