As long as the cards work in normal spec, I don't think this "power issues" are really a legal grounded problem.. There is no promise XOC bios will give any performance boosts..Also the card drawing 500w or 400w or 350w doesn't nessecery mean it will give performance boosts. If you got a good bin, your card will boost better with less power eaten..
People tend to forget this. Wait till you get a 500w drawing card that boosts like a potato. Besides the real life gaming differences between this boosts of 50w power are really not noticed and this soley make sens if your competing on the benchies.. Some of this cards are working very well despite the balancing issues and not getting as much power, for example I can still sustain 2130 gpu clock on 3080 ftw3 in any game without issues, to be honest good enough for me, and makes not much difference if I could sustain 2150-2160.