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The Federal Trade Commission and Consumer Protections for Mobile Health Apps

Published online by Cambridge University Press:  01 January 2021

Jennifer K. Wagner
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Abstract

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.

Type
Symposium Articles
Information
Journal of Law, Medicine & Ethics , Volume 48 , Issue S1: Unregulated Health Research Using Mobile Devices , Spring 2020 , pp. 103 - 114
Copyright
Copyright © American Society of Law, Medicine and Ethics 2020

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References

Pew Research Center, “Mobile Fact Sheet,” February 5, 2018, available at <https://www.pewinternet.org/fact-sheet/mobile/> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Edwards, A., “mHealth: Healthcare Mobile App Trends in 2019,” Ortholive Blog, February 2, 2019, available at <https://www.ortholive.com/blog/mhealth-healthcare-mobile-app-trends-in-2019> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Pohl, M., “325,000 Mobile Health Apps Available in 2017-Android Now the Leading mHealth Platform,” Research 2 Guidance, 2017, available at <https://research2guidance.com/325000-mobile-health-apps-available-in-2017/> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Zion Market Research, “Global mHealth Apps Market Will Reach USD 111.1 Billion by 2025: Zion Market Research,” Globe Newswire, January 24, 2019, available at <https://www.globenewswire.com/news-release/2019/01/24/1704860/0/en/Global-mHealth-Apps-Market-Will-Reach-USD-111-1-Billion-By-2025-Zion-Market-Research.html> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
E.g., Roth, V. J., “The mHealth Conundrum: Smartphones & Mobile Medical Apps-How Much FDA Medical Device Regulation Is Required,” North Carolina Journal of Law & Technology 15 (2014): 359-424, at 364-65.Google Scholar
Apple, “Apple Introduces ResearchKit, Giving Medical Researchers the Tools to Revolutionize Medical Studies,” (Press release), March 9, 2015, available at <https://www.apple.com/newsroom/2015/03/09Apple-Introduces-ResearchKit-Giving-Medical-Researchers-the-Tools-to-Revolutionize-Medical-Studies/> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Wicklund, E., “ResearchStack Goes Live, Opening mHealth Studies to the Android Ecosystem,” mHealth Intelligence, October 7, 2016, available at <https://mhealthintelligence.com/news/researchstack-goes-live-opening-mhealth-studies-to-the-android-ecosystem> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
E.g., Fung, B., “The FTC Was Built 100 Years Ago to Fight Monopolists. Now, It’s Washington’s Most Powerful Technology Cop,” Washington Post, September 25, 2014, available at <https://www.washingtonpost.com/news/the-switch/wp/2014/09/25/the-ftc-was-built-100-years-ago-to-fight-monopolists-now-its-washingtons-most-powerful-technology-cop/> (last visited February 26, 2020); Tene, O., “With Ramirez, FTC became the Federal Technology Commission,” January 18, 2017, available at <https://iapp.org/news/a/with-ramirez-ftc-became-the-federal-technology-commission/> (last visited February 26, 2020).+(last+visited+February+26,+2020);+Tene,+O.,+“With+Ramirez,+FTC+became+the+Federal+Technology+Commission,”+January+18,+2017,+available+at++(last+visited+February+26,+2020).>Google Scholar
For a comprehensive review of the FTC, see Hoofnagle, C., Federal Trade Commission Privacy Law and Policy (New York, NY: Cambridge University Press, 2016).CrossRefGoogle Scholar
Id., at 26.Google Scholar
Federal Trade Commission Act, Pub. L. No. 63-203, 38 Stat. 717 (1914) codified at 15 U.S.C. §§41-58.Google Scholar
E.g., Federal Trade Commission, “Our History,” available at <https://www.ftc.gov/about-ftc/our-history> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Federal Trade Commission, “Bureau of Competition,” available at <https://www.ftc.gov/about-ftc/bureaus-offices/bureau-competition> (last visited February 26, 2020); Federal Trade Commission, “Bureau of Consumer Protection,” available at <https://www.ftc.gov/about-ftc/bureaus-offices/bureau-consumer-protection> (last visited February 26, 2020); and Federal Trade Commission, “Bureau of Economics,” available at <https://www.ftc.gov/about-ftc/bureaus-offices/bureau-economics (last visited February 26, 2020).+(last+visited+February+26,+2020);+Federal+Trade+Commission,+“Bureau+of+Consumer+Protection,”+available+at++(last+visited+February+26,+2020);+and+Federal+Trade+Commission,+“Bureau+of+Economics,”+available+at+Google Scholar
E.g., Ramirez, E., “The FTC: A Framework for Promoting Competition and Protecting Consumers,” George Washington Law Review 83 (2015): 2049-2063; and Hoofnagle, supra note 9, at 83-96.Google Scholar
See Hoofnagle, supra note 9, at xvi.Google Scholar
See Hoofnagle, supra note 9, at 70 (footnote 18), citing Judge Learned Hand, “An Unseen Reversal,” The New Republic, January 9, 1915 at 7-8. 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).+(last+visited+February+26,+2020).>Google Scholar
See, e.g., Presidential Commission for the Study of Bioethical Issues, “Privacy and Progress in Whole Genome Sequencing,” October 2012, available at <https://bioethicsarchive.georgetown.edu/pcsbi/sites/default/files/PrivacyProgress508_1.pdf> (last visited February 26, 2020) (Figure 2: U.S. Federal Privacy Laws at 61); Zimmerman, H., “The Data of You: Regulating Private Industry’s Collection of Biometric Information,” University of Kansas Law Review 66 (2018): 637-671, at 643 and 645.+(last+visited+February+26,+2020)+(Figure+2:+U.S.+Federal+Privacy+Laws+at+61);+Zimmerman,+H.,+“The+Data+of+You:+Regulating+Private+Industry’s+Collection+of+Biometric+Information,”+University+of+Kansas+Law+Review+66+(2018):+637-671,+at+643+and+645.>Google Scholar
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 Stephens, J., “California Consumer Privacy Act,” ABA Business and Corporate Litigation Committee Newsletter, July 2, 2019, available at <https://www.americanbar.org/groups/business_law/publications/committee_newsletters/bcl/2019/201902/fa_9/> (last visited February 26, 2020).Google Scholar
Office of the Attorney General, “Guidance on Vermont’s Act 171 of 2018, Data Broker Registration, V.S.A. §§ 2430, 2433, 2436, and 2437,” December 11, 2018, available at <https://www.sec.state.vt.us/media/914592/2018-12-11-vt-data-broker-regulation-guidance.pdf> (last visited August 25, 2019); <https://ago.vermont.gov/wp-content/uploads/2018/12/2018-12-11-VT-Data-Broker-Regulation-Guidance.pdf>; Melendez, S., “A Landmark Vermont Law Nudges over 120 Data Brokers Out of the Shadows,” Fast Company, March 2, 2019, available at <https://www.fastcompany.com/90302036/over-120-data-brokers-inch-out-of-the-shadows-under-landmark-vermont-law> (last visited February 26, 2020).+(last+visited+August+25,+2019);+;+Melendez,+S.,+“A+Landmark+Vermont+Law+Nudges+over+120+Data+Brokers+Out+of+the+Shadows,”+Fast+Company,+March+2,+2019,+available+at++(last+visited+February+26,+2020).>Google Scholar
FTC v. Raladam Co., 283 U.S. 643, 51 S. Ct. 587 (1931).CrossRefGoogle Scholar
Federal Trade Commission Act, Pub. L. No. 75-447, §3, 52 Stat. 111 (1938) (aka the Wheeler-Lea Amendments).Google Scholar
See Hoofnagle, supra note 9, at 37.Google Scholar
FTC v. Sperry & Hutchinson, 405 U.S. 233, 92 S. Ct. 898 (1972); See also, Hoofnagle, supra, note 9, at 54.Google Scholar
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.Google Scholar
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 Beales, J. H., “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).+(last+visited+February+26,+2020).>Google Scholar
Federal Trade Commission Act, 15 U.S.C. § 45(a)(1) (2019).Google Scholar
See, e.g., Federal Food, Drug, and Cosmetic Act (FD&C Act), Pub. L. No. 75-717, 52 Stat. 1040 (1938) codified as amended at 21 U.S.C. §§ 301 et seq. (2019); 21st Century Cures Act, Pub. L. No. 114–255 (2016); U.S. Department of Health and Human Services, Food and Drug Administration, Center for Devices and Radiological Health, Office of the Center Director, Center for Biological Evaluation and Research, “Mobile Medical Applications Guidance for Industry and Food and Drug Administration Staff,” February 9, 2015, available at <https://www.fda.gov/media/80958/download> (last visited February 26, 2020); U.S. Department of Health and Human Services, Food and Drug Administration, “Software as a Medical Device (SaMD)” August 31, 2018, available at <https://www.fda.gov/MedicalDevices/DigitalHealth/SoftwareasaMedicalDevice/default.htm> (last visited February 26, 2020); Wagner, J.K., “Understanding FDA Regulation of DTC Genetic Tests Within the Context of Administrative Law,” American Journal of Human Genetics 87 (2010):451-456; Wagner, J.K., “The Sky is Falling for Personal Genomics! Oh Nevermind. It’s Just a Cease & Desist Letter from the FDA to 23andMe,” Genomics Law Report, December 3, 2013, available at <https://theprivacyreport.com/2013/12/03/the-sky-is-falling-for-personal-genomics-oh-nevermind-its-just-a-cease-desist-letter-from-the-fda-to-23andme/> (last visited February 26, 2020); Guerrini, C.J., Wagner, J.K., Nelson, S.C., Javitt, G.H., and McGuire, A.L., “Who’s on Third? Regulation of Third-Party Genetic Interpretation Services,” Genetics in Medicine 22 (2020): 4-11.CrossRefGoogle Scholar
E.F. Kaye, Commissioner, “Statement of Commissioner Elliott F. Kaye Regarding a Framework of Safety for the Internet of Things,” January 31, 2019, available at <https://www.cpsc.gov/s3fs-public/A_Framework_for_Safety_Across_the_Internet_of_Things_1-31-2019_0.pdf?1KJ.t4Tn04v9OtEBr-2s0wyLAP.KsuuQ3> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Averitt, N.W. and Lande, R. H., “Consumer Sovereignty: A Unified Theory of Antitrust and Consumer Protection Law,” Antitrust Law Journal 65 (1997): 713-756, at 713-714.Google Scholar
E.g., supra, note 9, at 98-117; Solove, D.J. and Hartzog, W., “The FTC and the New Common Law of Privacy,” Columbia Law Review, 114 (2014): 583-676, at 625; and Ramirez, supra, note 14.Google Scholar
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).+(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++(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).>Google Scholar
E.g., Hoofnagle, supra, note 9; Pardau, S.L. and Edwards, B., “The FTC, the Unfairness Doctrine, and Privacy by Design: New Legal Frontiers in Cybersecurity,” Journal of Business & Technology Law 12 (2017): 227-276, at 232-235; Solove and Hartzog, supra, note 30, at 640.Google Scholar
See, e.g., Pasquale, F., “Privacy, Antitrust, and Power,” George Mason Law Review 20 (2013): 1009-1024, at 1023. See also, generally, Pasquale, F., The Black Box Society: The Secret Algorithms That Control Money and Information (Cambridge, MA: Harvard University Press, 2015).Google Scholar
McSweeney, T. and O’Dea, B., “Data, Innovation, and Potential Competition in Digital Markets — Looking Beyond Short-Term Price Effects in Merger Analysis,” February 2018, available at <https://www.ftc.gov/system/files/documents/public_statements/1321373/cpi-mcsweeny-odea.pdf> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
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).+(last+visited+February+26,+2020).>Google Scholar
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 Hirsch, R. and Harrison, J., “Digital Health Privacy: Old Laws Meet New Technologies,” Competition: The Journal of Antitrust, UCL, and Privacy Section of the California Lawyers Association 27, no. 1 (2018): 21-28.Google Scholar
15 U.S.C. § 45(n) (2019).Google Scholar
Keegan, C. and Schroeder, C., “Unpacking Unfairness: the FTC’s Evolving Measures of Privacy Harms,” Journal of Law, Economics & Policy 15 (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).Google Scholar
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.Google Scholar
See Hoofnagle, supra, note 9, at 134-135.Google Scholar
POM Wonderful, LLC v. FTC, 777 F.3d 478 (D.C. Cir. 2015).Google Scholar
Federal Trade Commission, ‘Acne Cure’ Mobile App Marketers Will Drop Baseless Claims under FTC Settlements, Press Release, September 9, 2011, available at <https://www.ftc.gov/news-events/press-releases/2011/09/acne-cure-mobile-app-marketers-will-drop-baseless-claims-under> (last visited February 26, 2020); Federal Trade Commission, FTC Approves Final Settlement Orders Against Marketers Who Claimed Their Mobile Apps Could Cure Acne, Press Release, October 25, 2011, available at <https://www.ftc.gov/news-events/press-releases/2011/10/ftc-approves-final-settlement-orders-against-marketers-who> (last visited February 26, 2020); In the Matter of Koby Brown, individually, and d/b/a Dermapps, et al., FTC File No. 102-3205; In the Matter of Andrew N. Finkel, individually, FTC File No. 102-3206.+(last+visited+February+26,+2020);+Federal+Trade+Commission,+FTC+Approves+Final+Settlement+Orders+Against+Marketers+Who+Claimed+Their+Mobile+Apps+Could+Cure+Acne,+Press+Release,+October+25,+2011,+available+at++(last+visited+February+26,+2020);+In+the+Matter+of+Koby+Brown,+individually,+and+d/b/a+Dermapps,+et+al.,+FTC+File+No.+102-3205;+In+the+Matter+of+Andrew+N.+Finkel,+individually,+FTC+File+No.+102-3206.>Google Scholar
Id. (‘Acne Cure’ Mobile App Marketers Will Drop Baseless Claims Under FTC Settlements).Google Scholar
Id.Google Scholar
Complaint, In the Matter of Koby Brown, individually, and d/b/a Dermapps, et al., FTC File No. 102-3205, available at <https://www.ftc.gov/sites/default/files/documents/cases/2011/10/111021dermappscmpt.pdf> (last visited February 26, 2020) and Complaint, In the Matter of Andrew N. Finkel, individually, FTC File No. 102-3206, available at <https://www.ftc.gov/sites/default/files/documents/cases/2011/10/111021dermappscmpt.pdf> (last visited February 26, 2020).+(last+visited+February+26,+2020)+and+Complaint,+In+the+Matter+of+Andrew+N.+Finkel,+individually,+FTC+File+No.+102-3206,+available+at++(last+visited+February+26,+2020).>Google Scholar
Supra note 43.Google Scholar
Id.Google Scholar
Decision and Order, In the Matter of Koby Brown, individually, and d/b/a Dermapps, et al., FTC File No. 102-3205, at 2-3, available at <https://www.ftc.gov/sites/default/files/documents/cases/2011/10/111021dermappsdo.pdf> (last visited February 26, 2020); Decision and Order, In the Matter of Andrew N. Finkel, individually, FTC File No. 102-3206, at 2 https://www.ftc.gov/sites/default/files/documents/cases/2011/10/111021acnedo.pdf> (last visited February 26, 2020).+(last+visited+February+26,+2020);+Decision+and+Order,+In+the+Matter+of+Andrew+N.+Finkel,+individually,+FTC+File+No.+102-3206,+at+2+https://www.ftc.gov/sites/default/files/documents/cases/2011/10/111021acnedo.pdf>+(last+visited+February+26,+2020).>Google Scholar
Complaint, In the Matter of Koby Brown, individually, and d/b/a Dermapps, et al., FTC File No. 102-3205, at 3, available at <https://www.ftc.gov/sites/default/files/documents/cases/2011/10/111021dermappscmpt.pdf> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Federal Trade Commission, ‘Melanoma Detection’ App Sellers Barred from Making Deceptive Health Claims: FTC Charged Mole Detective Sellers with False Advertising Earlier This Year, Press Release, August 13, 2015, available at <https://www.ftc.gov/news-events/press-releases/2015/08/melanoma-detection-app-sellers-barred-making-deceptive-health> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Federal Trade Commission, FTC Approves Final Order Barring Misleading Claims about App’s Ability to Diagnose or Assess the Risk of Melanoma, Press Release, April 13, 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.+(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.>Google Scholar
See Federal Trade Commission, supra note 50.Google Scholar
Id.Google Scholar
Stipulated Final Judgment and Order for Permanent Injunction and Other Equitable Relief Against Defendant Avrom Boris Lasarow, available at <https://www.ftc.gov/system/files/documents/cases/150813lasarowstip.pdf> (last visited February 26, 2020); and Stipulated Final Judgment and Order for Permanent Injunction and Other Equitable Relief Against Defendants Kristi Zuhlke Kimball and New Consumer Solutions, LLC, at 6, available at <https://www.ftc.gov/system/files/documents/cases/new_consumer_solutions_5-1-15.pdf> (last visited February 26, 2020).+(last+visited+February+26,+2020);+and+Stipulated+Final+Judgment+and+Order+for+Permanent+Injunction+and+Other+Equitable+Relief+Against+Defendants+Kristi+Zuhlke+Kimball+and+New+Consumer+Solutions,+LLC,+at+6,+available+at++(last+visited+February+26,+2020).>Google Scholar
M.K. Olhausen, Commissioner, “Dissenting statement of Commissioner Maureen K. Olhausen In the Matter of Health Discovery Corporation, File No. 132-3211 and FTC v. Avrom Boris Lasarow, et al., File No. 132-3210,” February 23, 2015, available at <https://www.ftc.gov/system/files/documents/public_statements/626051/150223moledetectivemkodissstmt.pdf> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Id.Google Scholar
Federal Trade Commission, FTC Charges Marketers of ‘Vision Improvement’ App with Deceptive Claims, Press Release, September 17, 2015, available at <https://www.ftc.gov/news-events/press-releases/2015/09/ftc-charges-marketers-vision-improvement-app-deceptive-claims> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Federal Trade Commission, FTC Approves Final Order Prohibiting ‘Ultimeyes’ Manufacturer from Making Deceptive Claims that the App Can Improve Users’ Vision, Press Release, February 23, 2016, available at <https://www.ftc.gov/news-events/press-releases/2016/02/ftc-approves-final-order-prohibiting-ultimeyes-manufacturer> (last visited February 26, 2020); Decision and Order, In the matter of Carrot Neurotechnology, Inc., Adam Goldberg, and Aaron Seitz, FTC File No. 142-3132, available at <https://www.ftc.gov/system/files/documents/cases/160223carrotneurodo.pdf> (last visited February 26, 2020).+(last+visited+February+26,+2020);+Decision+and+Order,+In+the+matter+of+Carrot+Neurotechnology,+Inc.,+Adam+Goldberg,+and+Aaron+Seitz,+FTC+File+No.+142-3132,+available+at++(last+visited+February+26,+2020).>Google Scholar
Ohlhausen, M.K., Commissioner, “Concurring Statement of Commissioner Maureen K. Ohlhausen In the Matter of Carrot Neurotechnology, Inc., Matter No. 1423132,” February 23, 2016, available at <https://www.ftc.gov/system/files/documents/public_statements/922213/160223carrotneurostatement.pdf> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Federal Trade Commission, Lumosity to Pay $2 Million to Settle FTC Deceptive Advertising Charges for Its “Brain Training” Program: Company Claimed Program Would Sharpen Performance in Everyday Life and Protect Against Cognitive Decline, Press Release, January 5, 2016, available at <https://www.ftc.gov/news-events/press-releases/2016/01/lumositypay-2-million-settle-ftc-deceptive-advertising-charges> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
FTC v. Lumos Labs, Inc., a corporation, d/b/a Lumosity, and Kunal Sarkar and Michael Scanlon, FTC File No. 132-3212.Google Scholar
See Federal Trade Commission, supra note 60; Stipulated Final Judgment and Order for Permanent Injunction and Other Equitable Relief, available at <https://www.ftc.gov/system/files/documents/cases/160105lumoslabsstip.pdf> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Brill, J., Commissioner, “Concurring Statement of Commissioner Julie Brill in the Matter of Lumos Lab, Inc. (“Lumosity”, Kunal Sarkar, and Michael Scanlon,” January 5, 2016, available at <https://www.ftc.gov/public-statements/2016/01/concurring-statement-commissioner-julie-brill-matter-lumoslab-inc> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
See Commissioners, Chairwomen and Chairmen of the Federal Trade Commission November 2018, available at <https://www.ftc.gov/system/files/attachments/commissioners/commissioner_chart_november_2018_0.pdf> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Federal Trade Commission, Marketers of Blood-Pressure App Settle FTC Charges Regarding Accuracy of App Readings, Press Release, December 12, 2016, available at <https://www.ftc.gov/news-events/press-releases/2016/12/marketers-blood-pressure-app-settle-ftc-charges-regarding> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Id.Google Scholar
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).+(last+visited+February+26,+2020).>Google Scholar
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).+(last+visited+February+26,+2020).>Google Scholar
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, January 23, 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).+(last+visited+February+26,+2020).>Google Scholar
Id.Google Scholar
Id.Google Scholar
Id.Google Scholar
Stipulated Final Order for Permanent Injunction and Other Equitable Relief, FTC v. Breathometer, Inc. and Charles Michael Yim, individually and as Chief Executive Officer of Breathometer, Inc., FTC File No. 162-3057, available at <https://www.ftc.gov/system/files/documents/cases/170123breathometer_dkt._4-1_-_stipulated_order.pdf> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Ohlhausen, M.K., Commissioner, “Concurring Statement of Commissioner Maureen K. Ohlhausen In the Matter of Breathometer, Inc., Matter No. 1623057,” January 18, 2017, available at <https://www.ftc.gov/system/files/documents/public_statements/1054953/170123breathometerohlhausenstatement.pdf> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
See Commissioners, Chairwomen and Chairmen of the Federal Trade Commission November 2018, available at <https://www.ftc.gov/system/files/attachments/commissioners/commissioner_chart_november_2018_0.pdf> (last visited February 26, 2020); and Federal Trade Commission, Mobile App Settles FTC Allegations That It Failed to Deliver Promised Cash Rewards for Meeting Exercise and Diet Goals: Operators of Pact App to Pay More Than $940,000 in Settlement, Press Release, September 21, 2017, available at <https://www.ftc.gov/news-events/press-releases/2017/09/mobile-app-settles-ftc-allegations-it-failed-deliver-promised> (last visited February 26, 2020).+(last+visited+February+26,+2020);+and+Federal+Trade+Commission,+Mobile+App+Settles+FTC+Allegations+That+It+Failed+to+Deliver+Promised+Cash+Rewards+for+Meeting+Exercise+and+Diet+Goals:+Operators+of+Pact+App+to+Pay+More+Than+$940,000+in+Settlement,+Press+Release,+September+21,+2017,+available+at++(last+visited+February+26,+2020).>Google Scholar
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).Google Scholar
See Federal Trade Commission, Press Release, supra, note 75.Google Scholar
Id.Google Scholar
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).+(last+visited+February+26,+2020).>Google Scholar
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).+(last+visited+February+26,+2020).>Google Scholar
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).+(last+visited+February+26,+2020).>Google Scholar
Kang, C., “The Man Deciding Facebook’s Fate,” New York Times, March 8, 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.”).+(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.”).>Google Scholar
See supra note 35. See also, Federal Trade Commission, FTC Releases Staff Perspective Examining Informational Injuries, Press Release, October 19, 2018, available at <https://www.ftc.gov/news-events/press-releases/2018/10/ftc-releases-staff-perspective-examining-informational-injuries> (last visited February 26, 2020); Andrews, L., “A New Privacy Paradigm in the Age of Apps,” Wake Forest Law Review (2018): 421-477 (finding “egregious practices” regarding diabetes and psychiatry mHealth apps that at the very least would garner FTC’s attention for misrepresentations if there are inconsistencies between data sharing and privacy policies, at 447-449); Terry, N.P., “Appification, AI, and Healthcare’s New Iron Triangle,” Journal of Health Care Law and Policy 20 (2018): 117-180 (underscoring, “Big data brokers have been voracious consumers of healthcare data”, at 156). For general signs that anti-trust activities are possibly on the horizon, see, e.g., Federal Trade Commission, FTC Charges Surescripts with Illegal Monopolization of E-Prescription Markets, Press Release, April 24, 2019, available at <https://www.ftc.gov/news-events/press-releases/2019/04/ftc-charges-surescripts-illegal-monopolization-e-prescription> (last visited February 26, 2020); McKinnon, J.D. and Grimaldi, J.V., “Justice Department, FTC Skirmish Over Antitrust Turf,” Wall Street Journal, August 5, 2019, available at <https://www.wsj.com/articles/justice-department-ftc-skirmish-over-antitrust-turf-11564997402> (last visited February 26, 2020); Syrett, T., “The FTC’s Qualcamm Case Reveals Concerning Divide with DOJ on Patent Hold-Up,” June 28, 2019, IP Watchdog, available at <https://www.ipwatchdog.com/2019/06/28/ftcs-qualcomm-case-reveals-concerning-divide-doj-patent-hold/id=110764/> (last visited February 26, 2020); Isaac, M. and Singer, N., “Facebook Antitrust Inquiry Shows Big Tech’s Freewheeling Era Is Past,” New York Times, July 24, 2019, available at <https://www.nytimes.com/2019/07/24/technology/facebook-ftc-antitrust-investigation.html> (last visited February 26, 2020); Durkee, A., “Huge Group of States Considering Antitrust Probe of Facebook, Google, Amazon, and Apple,” Vanity Fair, August 20, 2019, available at <https://www.vanityfair.com/news/2019/08/tech-antitrust-investigation-state-attorney-general> (last visited February 26, 2020); and Wakabayashi, D., Benner, K., and Lohr, S., “Justice Department Opens Antitrust Review of Big Tech Companies,” New York Times, July 23, 2019, available at <https://www.nytimes.com/2019/07/23/technology/justice-department-tech-antitrust.html?module=inline> (last visited February 26, 2020).Google Scholar
See, e.g., Eisenach, J.A. and Gotts, I. Knable, “Looking Ahead: The FTC’s Role in Information Technology Markets,” George Washington Law Review 83 (2015): 1876-1901 (explaining how the FCC’s authority converges with the FTC’s in the “internet ecosystem” and warning of an expanded FCC role in net neutrality and information technology markets as potentially limiting the FTC); and Fair, L., “FTC-FDA warning letters: Influential to influencers and marketers,” FTC Business Blog, June 7, 2019, available at <https://www.ftc.gov/news-events/blogs/business-blog/2019/06/ftc-fda-warning-letters-influential-influencers-marketers> (last visited February 26, 2020) (reporting on the FTC and FDA jointly sending warning letters to companies regarding their endorsement-related responsibilities implicated by social media influencers of their brands). See also, generally, Ross, P. and Vorhaus, D., “mHealth on the Horizon: Federal Agencies Paint Regulatory Landscape with Broad Brushstrokes,” Genomics Law Report, December 5, 2012, available at <https://theprivacyreport.com/2012/12/05/mhealth-on-the-horizon-federal-agencies-paint-regulatory-landscape-with-broad-brushstrokes/> (last visited February 26, 2020).Google Scholar
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,” April 2016, available at <https://www.ftc.gov/tips-advice/business-center/guidance/mobile-health-apps-interactive-tool> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Federal Trade Commission, “Mobile Health App Developers: FTC Best Practices,” Guidance, April 2016, available at <https://www.ftc.gov/tips-advice/business-center/guidance/mobile-health-app-developers-ftc-best-practices> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Federal Trade Commission, “Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers,” Preliminary FTC Staff Report, December 2010, available at <https://www.ftc.gov/reports/preliminary-ftc-staff-report-protecting-consumer-privacy-era-rapid-change-proposed-framework> (last visited February 26, 2020); Federal Trade Commission, “Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers,” FTC Report, March 2012, available at <https://www.ftc.gov/reports/protecting-consumer-privacy-era-rapid-change-recommendations-businesses-policymakers> (last visited February 26, 2020); Federal Trade Commission, “Mobile Privacy Disclosures: Building Trust Through Transparency,” FTC Staff Report, February 2013, available at <https://www.ftc.gov/reports/mobile-privacy-disclosures-building-trust-through-transparency-federal-trade-commission> (last visited February 26, 2020); Federal Trade Commission, “Data Brokers: A Call for Transparency and Accountability,” FTC Report, May 2014, available at <https://www.ftc.gov/reports/data-brokers-call-transparency-accountability-report-federal-trade-commission-may-2014> (last visited February 26, 2020); Federal Trade Commission, “Careful Connections: Building Security in the Internet of Things,” Guidance, January 2015, available at <https://www.ftc.gov/system/files/documents/plain-language/pdf0199-carefulconnections-buildingsecurityinternetofthings.pdf> (last visited February 26, 2020); Federal Trade Commission, “Big Data: A Tool for Inclusion or Exclusion? Understanding the Issues,” FTC Report, January 2016, available at <https://www.ftc.gov/reports/big-data-tool-inclusion-or-exclusion-understanding-issues-ftc-report> (last visited February 26, 2020); and Federal Trade Commission, “The Sharing Economy: Issues Facing Platforms, Participants & Regulators,” FTC Staff Report, November 2016, available at <https://www.ftc.gov/reports/sharing-economy-issues-facing-platforms-participants-regulators-federal-trade-commission> (last visited February 26, 2020).+(last+visited+February+26,+2020);+Federal+Trade+Commission,+“Protecting+Consumer+Privacy+in+an+Era+of+Rapid+Change:+Recommendations+for+Businesses+and+Policymakers,”+FTC+Report,+March+2012,+available+at++(last+visited+February+26,+2020);+Federal+Trade+Commission,+“Mobile+Privacy+Disclosures:+Building+Trust+Through+Transparency,”+FTC+Staff+Report,+February+2013,+available+at++(last+visited+February+26,+2020);+Federal+Trade+Commission,+“Data+Brokers:+A+Call+for+Transparency+and+Accountability,”+FTC+Report,+May+2014,+available+at++(last+visited+February+26,+2020);+Federal+Trade+Commission,+“Careful+Connections:+Building+Security+in+the+Internet+of+Things,”+Guidance,+January+2015,+available+at++(last+visited+February+26,+2020);+Federal+Trade+Commission,+“Big+Data:+A+Tool+for+Inclusion+or+Exclusion?+Understanding+the+Issues,”+FTC+Report,+January+2016,+available+at++(last+visited+February+26,+2020);+and+Federal+Trade+Commission,+“The+Sharing+Economy:+Issues+Facing+Platforms,+Participants+&+Regulators,”+FTC+Staff+Report,+November+2016,+available+at++(last+visited+February+26,+2020).>Google Scholar
Federal Trade Commission, “Hearings on Competition and Consumer Protection in the 21st Century,” available at <https://www.ftc.gov/policy/hearings-competition-consumer-protection> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
See Yakus v. United States, 321 U.S. 414, 425, 64 S.Ct. 660, 668 (1944).Google Scholar
FTC v. R.F.Keppel & Bro., 291 U.S. 304, 314, 54 S.Ct. 423, 427 (1934); Sperry, supra, note 23.Google Scholar
FTC, “FTC Chief Technologists,” available at <https://www.ftc.gov/about-ftc/biographies/ftc-chief-technologist> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Chopra, R. and Slaughter, R.K., Commissioners, “Statement of Commissioners Rohit Chopra and Rebecca Kelly Slaughter: Federal Trade Commission Reprot on the Use of Section 5 to Address Off-Patent Pharmaceutical Price Spikes,” June 24, 2019, available at <https://www.ftc.gov/system/files/documents/reports/ftc-report-standalone-section-5-address-high-pharmaceutical-drug-biologic-prices/p180101_section_5_report_dissenting_statement_by_chopra_and_slaughter_6-27-19.pdf> (last visited February 26, 2020) (quoting Fed. Trade Comm’n v. Cement Inst., 333 U.S. 683, 693, (1948)).+(last+visited+February+26,+2020)+(quoting+Fed.+Trade+Comm’n+v.+Cement+Inst.,+333+U.S.+683,+693,+(1948)).>Google Scholar
See, e.g., Wood, M., “The FTC Has No Chief Technologist as It Weighs Big Tech Investigations,” Marketplace Tech, April 2, 2019, available at <https://www.marketplace.org/2019/04/02/should-we-care-ftc-doesnt-have-chief-technologist/> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
Office of Technology Research and Innovation, available at <https://www.ftc.gov/about-ftc/bureaus-offices/bureau-consumer-protection/office-technology-research-investigation> (last visited February 26, 2020), which was last updated April 25, 2018; Tech@FTC, available at <https://www.ftc.gov/news-events/blogs/techftc> (last visited February 26, 2020), which last post was dated April 12, 2018.+(last+visited+February+26,+2020),+which+was+last+updated+April+25,+2018;+Tech@FTC,+available+at++(last+visited+February+26,+2020),+which+last+post+was+dated+April+12,+2018.>Google Scholar
House Committee on Energy and Commerce Staff, “Memorandum to the Subcommittee on Consumer Protection and Commerce Members and Staff,” May 3, 2019, at 4, available at <https://energycommerce.house.gov/sites/democrats.energy-commerce.house.gov/files/documents/FTC%20Oversight%20Memo%20050319.pdf> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
United States Cong. House. Subcommittee on Consumer Protection and Commerce of the Committee on Energy and Commerce, Hearing on ‘Oversight of the Federal Trade Commission: Strengthening Protections for Americans’ Privacy and Data Security, May 8, 2019. Washington, DC, Materials are available at <https://energycommerce.house.gov/committee-activity/hearings/hearing-on-oversight-of-the-federal-trade-commission-strengthening> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
FTC, “Prepared Statement of the Federal Trade Commission on ‘Legislative Hearing on 17 FTC Bills’ Before the Committee on Energy and Commerce Subcommittee on Commerce, Manufacturing, and Trade on May 24, 2016,” available at <https://www.ftc.gov/system/files/documents/public_statements/950403/160524commtestimony-17-bills.pdf> (Last visited February 26, 2020).+(Last+visited+February+26,+2020).>Google Scholar
E.g., Hoofnagle, C.J., Hartzog, W., and Solove, D., “The FTC Can Rise to the Privacy Challenge, but Not without Help from Congress,” Brookings, August 8, 2019, available at <https://www-brookings-edu.cdn.ampproject.org/c/s/www.brookings.edu/blog/techtank/2019/08/08/the-ftc-can-rise-to-the-privacy-challenge-but-not-without-help-from-congress/amp/> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar
See, e.g., Sohoni, M., “Opinion Analysis: Court Refuses to Resurrect Nondelegation Doctrine,” SCOTUSblog, June 20, 2019, available at <https://www.scotusblog.com/2019/06/opinion-analysis-court-refuses-to-resurrect-nondelegation-doctrine/> (last visited February 26, 2020); Stern, M.J., The Supreme Court’s Conservatives are Ready to Take a Wrecking Ball to the Entire Federal Bureaucracy, Slate, June 20, 2019, available at <https://slate.com/news-and-politics/2019/06/neil-gorsuch-supreme-court-conservatives-gundy-sex-offender.html> (last visited February 26, 3030); Zoldan, E., “Gundy v. United States: A Peek into the Future of Government Regulation,” The Hill, June 21, 2019, available at <https://thehill.com/opinion/judiciary/449687-gundy-v-united-states-a-peek-into-the-future-of-government-regulation> (last visited February 26, 2020); Hickman, K.E., “Gundy, Nondelegation, and Never-Ending Hope,” The Regulatory Review, July 8, 2019, available at <https://www.theregreview.org/2019/07/08/hickman-non-delegation/> (last visited February 26, 2020).Google Scholar
See, e.g., National Consumer Law Center, “Consumer Protection in the States: A 50-State Evaluation of Unfair and Deceptive Practice Laws,” March 2018, available at <http://www.nclc.org/issues/how-well-do-states-protect-consumers.html> (last visited February 26, 2020).+(last+visited+February+26,+2020).>Google Scholar