1. Actively detecting test and behaving differently. It's like stealing a test vs teaching to the test.
2. Lower stakes. Health issues are much more serious than inefficiency.
3. It affects the buyer. It's more acceptable for the buyer to be cheated than everyone around them.
4. People could have created these layers by accident. Favouring those who got lucky is unfair.
Honestly I think basically all my gadgets exaggerate how energy efficient they are, by tuning parameters for tests that don't correspond to the real world. My dishwasher has an energy efficient mode, the manual literally says it's just for compliance and recommends other modes. It's just a fact of life.
Your point about fairness and passive design is the one that makes me view these cases differently also. In the anecdote, the product being tested was the same one being sold, and there's no sign the heater was worsened to improve test performance. The designers just picked the best-scoring option among some reasonable configurations. (Frankly, once they noticed that issue, what were they supposed to do? Pick the worst-scoring, or pick the spec out of a hat?)
In the VW story, the test-bench vehicle was fundamentally different from the market vehicle, and the road version was designed to behave worse on the metrics to get other gains. I happen to know someone who bought a diesel Jetta specifically because it was more eco-friendly than other options, and I think he'd draw a clear line between tuning for test metrics and VW consciously lying to their buyers.
I think this is what I disagree with.
The water heater story is about a viable-for-market design which also optimized for the test. The equivalent for a car emissions test might be optimizing the transmission to reduce emissions at the specific speeds which will be tested. Those speeds could be sweet spots of the engine curve by accident, or they could be planned that way. I don't think that's necessarily right, but it's within the bounds of "natural" design for the product.
Instead of doing that, VW submitted something for testing which was fundamentally different from what went to market. Rather than being misleading, the test results were fundamentally irrelevant. Creating two completely different modes of behavior isn't something you could do by chance, and it means there's no real limit on how badly they could cheat.