Richard B. Newman
Member
New York Attorney General Eric Schneiderman recently announced settlements with three health-related applications sold in Apple’s App Store and Google Play pertaining to misleading claims and privacy practices.
The investigation revealed that two app developers claimed that their apps accurately measured heart rate after vigorous exercise using only a smartphone camera and sensors. The third developer claimed that its app transformed a smartphone into a fetal heart monitor, even though the app was not an FDA-approved fetal heart monitor.
Cardiio
The OAG alleged that the app claimed to help measure heart rate, and that the developer failed to test its accuracy with users that had engaged in vigorous exercise, despite marketing the app for such purposes. The OAG also stated that the developer impliedly represented that the app was endorsed by MIT.
Runtastic
A GPS running, walking and fitness tracker. The OAG alleged that the app claimed to measure heart rate and cardiovascular performance, despite not testing its accuracy with users that had engaged in vigorous exercise.
Matis
Seller of the My Baby’s Beat app. Previously claimed it could turn a smartphone into a fetal heart monitor, despite the fact that it has never been approved by the FDA. The OAG alleged that the seller encouraged consumers to use the app, rather than a fetal heart monitor or Doppler, despite never having conducted proper comparisons.
According to the OAG, the app developers initially marketed the products without possessing sufficient information to substantiate marketing claims, but have subsequently cooperated to modify promotional materials, warnings and privacy protocols.
Claims related to the measurement of vital signs and other health indicators using only a smartphone can be harmful to consumers if they provide inaccurate or misleading results.
“Mobile health apps can benefit consumers if they function as advertised, do not make misleading claims, and protect sensitive user information,” said Attorney General Schneiderman.“ “However, my office will not hesitate to take action against developers that disseminate unfounded information that is both deceptive and potentially harmful to everyday consumers.”
Pursuant to the settlements, the developers agreed to provide additional information about testing of the apps, to change their ads to make them non-misleading and to pay monetary penalties. Additionally, the developers must clearly and conspicuously utilize disclaimers informing consumers that the apps are not medical devices and are not approved by the FDA.
The developers also made changes to protect consumers’ privacy, according to the OAG. The developers now require affirmative consent to their privacy policies for these apps and disclose that they collect and share information that may be personally identifying (e.g., users’ GPS location, unique device identifier and “de-identified” data that third-parties may be able to use to re-identify specific users.
Follow the author on Twitter, here.
ADVERTISING MATERIAL. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result. Hinch Newman LLP | 40 Wall St., 35th Floor, New York, NY 10005 | (212) 756-8777.
The investigation revealed that two app developers claimed that their apps accurately measured heart rate after vigorous exercise using only a smartphone camera and sensors. The third developer claimed that its app transformed a smartphone into a fetal heart monitor, even though the app was not an FDA-approved fetal heart monitor.
Cardiio
The OAG alleged that the app claimed to help measure heart rate, and that the developer failed to test its accuracy with users that had engaged in vigorous exercise, despite marketing the app for such purposes. The OAG also stated that the developer impliedly represented that the app was endorsed by MIT.
Runtastic
A GPS running, walking and fitness tracker. The OAG alleged that the app claimed to measure heart rate and cardiovascular performance, despite not testing its accuracy with users that had engaged in vigorous exercise.
Matis
Seller of the My Baby’s Beat app. Previously claimed it could turn a smartphone into a fetal heart monitor, despite the fact that it has never been approved by the FDA. The OAG alleged that the seller encouraged consumers to use the app, rather than a fetal heart monitor or Doppler, despite never having conducted proper comparisons.
According to the OAG, the app developers initially marketed the products without possessing sufficient information to substantiate marketing claims, but have subsequently cooperated to modify promotional materials, warnings and privacy protocols.
Claims related to the measurement of vital signs and other health indicators using only a smartphone can be harmful to consumers if they provide inaccurate or misleading results.
“Mobile health apps can benefit consumers if they function as advertised, do not make misleading claims, and protect sensitive user information,” said Attorney General Schneiderman.“ “However, my office will not hesitate to take action against developers that disseminate unfounded information that is both deceptive and potentially harmful to everyday consumers.”
Pursuant to the settlements, the developers agreed to provide additional information about testing of the apps, to change their ads to make them non-misleading and to pay monetary penalties. Additionally, the developers must clearly and conspicuously utilize disclaimers informing consumers that the apps are not medical devices and are not approved by the FDA.
The developers also made changes to protect consumers’ privacy, according to the OAG. The developers now require affirmative consent to their privacy policies for these apps and disclose that they collect and share information that may be personally identifying (e.g., users’ GPS location, unique device identifier and “de-identified” data that third-parties may be able to use to re-identify specific users.
Follow the author on Twitter, here.
ADVERTISING MATERIAL. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result. Hinch Newman LLP | 40 Wall St., 35th Floor, New York, NY 10005 | (212) 756-8777.
