This is such a cop-out. It basically sounds like they're just going to be ordinary earphones then. Even ordinary earphones will damage your hearing at the highest outputs; damage comes long before "ear-splitting" / painful levels. If the regulations permit levels that are sufficient for moderate hearing loss, some mild users will program the levels too high and make things worse.
There are reasonable limitations to be made here: requiring initial settings to be low, restricting how quickly volume can be increased while they're being programmed, having different drivers for different levels of hearing loss (which is already the case for prescription hearing aids), etc. But individual responsibility is fundamentally both a requirement and reasonable presumption. We don't let people who commit suicide by swallowing a bottle full of sleeping pills prevent the rest of society from having access to sleeping pills, nor would we presume that a prescription magically stops people from getting suicidal. Yet the consequences for misprogramming OTC hearing aids are much lower than the consequences for not taking sleeping pills as directed.
There are reasonable limitations to be made here: requiring initial settings to be low, restricting how quickly volume can be increased while they're being programmed, having different drivers for different levels of hearing loss (which is already the case for prescription hearing aids), etc. But individual responsibility is fundamentally both a requirement and reasonable presumption. We don't let people who commit suicide by swallowing a bottle full of sleeping pills prevent the rest of society from having access to sleeping pills, nor would we presume that a prescription magically stops people from getting suicidal. Yet the consequences for misprogramming OTC hearing aids are much lower than the consequences for not taking sleeping pills as directed.