The Federal Trade Commission (FTC) has an important role to play in the governmental oversight of mobile health apps, ensuring consumer protections from unfair and deceptive trade practices and curtailing anti-competitive methods. The FTC’s consumer protection structure and authority is outlined before reviewing the recent FTC enforcement activities taken on behalf of consumers and against developers of mhealth apps. The article concludes with identification of some challenges for the FTC and modest recommendations for strengthening the consumer protections it provides.
E.g., V. J.Roth, “The mHealth Conundrum: Smartphones & Mobile Medical Apps-How Much FDA Medical Device Regulation Is Required,”North Carolina Journal of Law & Technology15 (2014): 359-424, at 364-65.
For a comprehensive review of the FTC, see C.Hoofnagle, Federal Trade Commission Privacy Law and Policy (New York, NY: Cambridge University Press, 2016).
10.
Id., at 26.
11.
Federal Trade Commission Act, Pub. L. No. 63-203, 38 Stat. 717 (1914) codified at 15 U.S.C. §§41-58.
E.g., E.Ramirez, “The FTC: A Framework for Promoting Competition and Protecting Consumers,”George Washington Law Review83 (2015): 2049-2063; and Hoofnagle, supra note 9, at 83-96.
15.
See Hoofnagle, supra note 9, at xvi.
16.
For a summary of the FTC’s authority, see also, Federal Trade Commission, “A Brief Overview of the Federal Trade Commission’s Investigative, Law Enforcement, and Rulemaking Authority,” April 2019, available at <https://www.ftc.gov/about-ftc/what-we-do/enforcement-authority> (last visited February 26, 2020).
17.
H.Zimmerman, “The Data of You: Regulating Private Industry’s Collection of Biometric Information,”University of Kansas Law Review66 (2018): 637-671, at 643 and 645.
18.
California Consumer Privacy Act of 2018, AB-375 signed into law on June 28, 2018 as amended by SB-822 signed into law on September 30, 2018; See also J.Stephens, “California Consumer Privacy Act,”ABA Business and Corporate Litigation Committee Newsletter, July2, 2019, available at <https://www.americanbar.org/groups/business_law/publications/committee_newsletters/bcl/2019/201902/fa_9/> (last visited February 26, 2020).
FTC v. Raladam Co., 283 U.S. 643, 51 S. Ct. 587 (1931).
21.
Federal Trade Commission Act, Pub. L. No. 75-447, §3, 52 Stat. 111 (1938) (aka the Wheeler-Lea Amendments).
22.
See Hoofnagle, supra note 9, at 37.
23.
FTC v. Sperry & Hutchinson, 405 U.S. 233, 92 S. Ct. 898 (1972); See also, Hoofnagle, supra, note 9, at 54.
24.
E.g., Trans-Alaska Pipeline Authorization Act, Pub. L. No. 93-153, 87 Stat. 591, §408-409 (1973); Magnuson-Moss Warranty — Federal Trade Commission Improvement Act, Pub. L. No. 93-637, 88 Stat. 2183 (1975) codified at 15 U.S.C. ch. 50 § 2301 et seq.; See also, supra, note 9, at 54-55.
25.
E.g., Federal Trade Commission Improvements Act of 1980, Pub. L. No. 96-252, 94 Stat. 374 (1980); FTC Act Amendments of 1994, Pub. L. No. 103-312, 108 Stat. 1691 (1994) codified in relevant part at 15 U.S.C. §45(n); and J. H.Beales, “The FTC’s Use of Unfairness Authority: Its Rise, Fall, and Resurrection,”The Marketing and Public Policy Conference; Washington, DC., May 30, 2003, available at <https://www.ftc.gov/public-statements/2003/05/ftcs-use-unfairness-authority-its-rise-fall-and-resurrection#N_7> (last visited February 26, 2020).
26.
Federal Trade Commission Act, 15 U.S.C. § 45(a)(1) (2019).
27.
C.J.Guerrini, J.K.Wagner, S.C.Nelson, G.H.Javitt, and A.L.McGuire, “Who’s on Third? Regulation of Third-Party Genetic Interpretation Services,”Genetics in Medicine22 (2020): 4-11.
N.W.Averitt and R. H.Lande, “Consumer Sovereignty: A Unified Theory of Antitrust and Consumer Protection Law,”Antitrust Law Journal65 (1997): 713-756, at 713-714.
30.
E.g., supra, note 9, at 98-117; D.J.Solove and W.Hartzog, “The FTC and the New Common Law of Privacy,”Columbia Law Review, 114 (2014): 583-676, at 625; and Ramirez, supra, note 14.
31.
E.g., supra, note 9, at 119-140; supra, note 29, at 718, 725-26, and 733; and T. Rosch, Commissioner, Deceptive and Unfair Acts and Practices Principles: Evolution and Convergence, Speech at the California State Bar, (May 18, 2007), 2007 WL 2506620, available at <https://www.ftc.gov/sites/default/files/documents/public_statements/deceptive-and-unfair-acts-and-practices-principles-evolution-and-convergence/070518evolutionandconvergence_0.pdf> (last visited February 26, 2020). See also Letter from the FTC to Hon. Wendell Ford and Hon. John Danforth, Committee on Commerce, Science and Transportation, United States Senate, Commission Statement of Policy on the Scope of Consumer Unfairness Jurisdiction (December 17, 1980), appended to International Harvester Co., 104 F.T.C. 949, 1061, (1984), available at <http://www.ftc.gov/bcp/policystmt/ad-unfair.htm> (last visited February 26, 2020); Letter from James C. Miller III, FTC Chairman, to John D. Dingell, Chairman, House Comm. On Energy and Commerce 5-6 (October 14, 1984), appended to Cliffdale Associates, Inc., 103 F.T.C. 110, 174 (1984); and Federal Trade Commission, FTC Policy Statement Regarding Advertising Substantiation (March 11, 1983), appended to Thompson Medical Co., 104 F.T.C. 648, 839 (1984), aff ’d, 791 F.2d 189 (D.C. Cir. 1986), cert. denied, 479 U.S. 1086 (1987).
32.
E.g., Hoofnagle, supra, note 9; S.L.Pardau and B.Edwards, “The FTC, the Unfairness Doctrine, and Privacy by Design: New Legal Frontiers in Cybersecurity,”Journal of Business & Technology Law12 (2017): 227-276, at 232-235; Solove and Hartzog, supra, note 30, at 640.
33.
See, e.g., F.Pasquale, “Privacy, Antitrust, and Power,”George Mason Law Review20 (2013): 1009-1024, at 1023. See also, generally, F.Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Cambridge, MA: Harvard University Press, 2015).
C.f. FTC v. Wyndham Worldwide Corp., 10 F. Supp. 3d. 612 (D.N.J. 2014), aff ’d 799 F.3d 236 (3rd Cir. 2015); LabMD, Inc. v. Federal Trade Commission, 894 F.3d 1221 (11 Cir. 2018), available at <http://media.ca11.uscourts.gov/opinions/pub/files/201616270.pdf> (last visited February 26, 2020).
36.
See, e.g., Beales, supra, note 25 (warning that “an unwar-ranted aversion” to the unfairness doctrine would cause over-reliance and a perversion of the principles of deception); Rosch, supra, note 31; Solove and Hartzog, supra, note 30, (noting a “dramatic” shift by the FTC to turn the focus away from “Broken Promises” and toward “Broken Expectations,” which could lead to the FTC requiring businesses to correct mistaken consumer expectations and explaining, at 640, that among the unfair trade practices that have emerged are retroactive policy changes); and R.Hirsch and J.Harrison, “Digital Health Privacy: Old Laws Meet New Technologies,”Competition: The Journal of Antitrust, UCL, and Privacy Section of the California Lawyers Association27, no. 1 (2018): 21-28.
37.
15 U.S.C. § 45(n) (2019).
38.
C.Keegan and C.Schroeder, “Unpacking Unfairness: the FTC’s Evolving Measures of Privacy Harms,”Journal of Law, Economics & Policy15 (2019): 19-40, at 19 and 28 (noting a “deception creep” and that the unfairness doctrine has been used in privacy cases as “an intensifier” of deceptive practices).
39.
Letter from James C. Miller III, FTC Chairman, to John D. Dingell, Chairman, House Comm. On Energy and Commerce 5-6 (October 14, 1984), appended to Cliffdale Associates, Inc., 103 F.T.C. 110, 174 (1984); see also, Rosch, supra note 31.
Federal Trade Commission, FTC Approves Final Order Barring Misleading Claims about App’s Ability to Diagnose or Assess the Risk of Melanoma, Press Release, April13, 2015, available at <https://www.ftc.gov/news-events/press-releases/2015/04/ftc-approves-final-order-barring-misleading-claims-about-apps> (last visited February 26, 2020). See also Complaint, supra note 49; In the Matter of Health Discovery Corporation, FTC File No. 132-3211; and FTC v. Avrom Boris Lasarow; L Health Ltd., formerly known as Lasarow Healthcare Technologies Ltd., a private company limited by shares; Kristi Zuhlke Kimball; and New Consumer Solutions LLC, a limited liability company, FTC File No. 132-3210.
Complaint for Permanent Injunction and Other Equitable Relief, Federal Trade Commission v. Aura Labs, Inc., a corporation, also d/b/a AuraLife and AuraWare, and Ryan Arch-deacon, individually and as an officer of Aura Labs, Inc., FTC File No. 152-3150, available at <https://www.ftc.gov/system/files/documents/cases/161212_aura_labs_complaint.pdf> (last visited February 26, 2020).
68.
Order for Permanent Injunction and Monetary Judgment, Federal Trade Commission v. Aura Labs, Inc., a corporation, also d/b/a AuraLife and AuraWare, and Ryan Archdeacon, individually and as an officer of Aura Labs, Inc., FTC File No. 152-3150, available at <https://www.ftc.gov/system/files/documents/cases/161212_aura_labs_final_order.pdf> (last visited February 26, 2020).
69.
Federal Trade Commission, ‘Breathometer’ Marketers Settle FTC Charges of Misrepresenting Ability to Accurately Measure Users’ Blood Alcohol Content: Pitched on TV’s “Shark Tank,” the App-Supported Smartphone Devices Targeted Consumers Who Wanted to Make Smart Driving Decisions after Drinking, Press Release, January23, 2017, available at <https://www.ftc.gov/news-events/press-releases/2017/01/breathometer-marketers-settle-ftc-charges-misrepresenting-ability> (last visited February 26, 2020).
Federal Trade Commission v. Pact, Inc.; Yifan Zhang, individually and as an officer of Pact, Inc.; and Geoffrey Oberhofer, Individually and as an Officer of Pact, Inc., FTC File No. 152-3010, (September 21, 2017).
77.
See Federal Trade Commission, Press Release, supra, note 75.
78.
Id.
79.
Complaint for Permanent Injunction and Other Equitable Relief, FTC v. Pact Inc., Yifan Zhang, individually and as an officer of Pact Inc., and Geoffrey Oberhofer, individually and as an officer of Pact, Inc., FTC File No. 152-3010, available at <https://www.ftc.gov/system/files/documents/cases/1523010pactcomplaint.pdf> (last visited February 26, 2020).
80.
Stipulation and Proposed Order for Permanent Injunction and Monetary Judgment, FTC v. Pact Inc., Yifan Zhang, Individually and as an Officer of Pact Inc., and Geoffrey Oberhofer, Individually and as an Officer of Pact, Inc., FTC File No. 152-3010, available at <https://www.ftc.gov/system/files/documents/cases/1523010pactstiporderjudgment.pdf> (last visited February 26, 2020).
81.
See, e.g., Federal Trade Commission, “Office of Technology Research and Investigation: Related Enforcement,”available at <https://www.ftc.gov/node/799871> (last visited February 26, 2020).
82.
C.Kang, “The Man Deciding Facebook’s Fate,”New York Times, March8, 2019, available at <https://www.nytimes.com/2019/03/08/technology/ftc-facebook-joseph-simons.html/> (last visited February 26, 2020) (quoting Chairman Simons as saying, “In antitrust, you want to focus on areas where there is likely to be market power or monopology power…So it is not unreasonable to look at big digital platforms and say, well, that might be an ripe area to look at.”).
Federal Trade Commission (in cooperation with the U.S. Department of Health & Human Services (HHS): the Office of the National Coordinator for Health Information Technology (ONC), the Office for Civil Rights (OCR), and the Food and Drug Administration (FDA), “Mobile Health Apps Interactive Tool,”April2016, available at <https://www.ftc.gov/tips-advice/business-center/guidance/mobile-health-apps-interactive-tool> (last visited February 26, 2020).
