this is definitely not the former. i'm convinced we won't have a problem with the latter. the risk is more about timing.
No, look at BFL. Clearly they "intended" to produce a unit. However, they were able to delay and delay shipping products without ever telling anyone how much they'd sold - that kept the difficulty low in order to make their products look like good deals.
If you're planning on selling so many ASICs that your products never make ROI, then it's kind of a scam.
Selling an product that's not likely to make ROI is a bit on the scamy side, because you still have information your customers don't have access too.