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FTC Brings First Health-Related Mobile Apps Cases

4 Oct, 2011 By: Linda A. Goldstein


The Federal Trade Commission (FTC) has expanded its look into the mobile application marketplace with the announcement of two recent actions against the developers of mobile software applications that were promoted for the treatment of acne. Upon enforcement, the settlement orders would bar both companies from making certain health-related claims without substantiation and would require each company to pay a fine. These cases are the first the FTC has brought targeting health claims in the mobile application marketplace.

The cases involve the mobile apps “AcneApp” and “Acne Pwner.” AcneApp was developed and distributed by Koby Brown, a developer, and Gregory W. Pearson, a dermatologist. According to the complaint, the defendants, doing business as DERMAPPS, have advertised and sold AcneApp to consumers, including teens, through Apple's iTunes store since at least September 2009. There were approximately 11,600 downloads of AcneApp which was offered for sale for $1.99. The “Acne Pwner” app was developed and sold by Andrew N. Finkel through Google’s Android Marketplace. The complaint states that from February 2010 through October 2010, there were approximately 3,300 downloads of Acne Pwner, selling for 99 cents.

The marketers of both claimed that the apps could treat acne through the emission of colored lights from a smartphone or other mobile device. Consumers were instructed to hold the phone's display screen next to the area of the skin to be treated for a few minutes daily while the app was activated. Ads for Acne Pwner stated, “Kill ACNE with this simple, yet powerful too.”

The marketers of AcneApp boasted the involvement of a dermatologist in the development of the app and represented that “[a] study published by the British Journal of Dermatology showed blue- and red-light treatments eliminated p-acne bacteria (a major cause of acne) and reduces skin blemishes by 76 percent.” The AcneApp advertisements also included testimonials from consumers touting successful results from use of the app.

The FTC charged that these claims were unsubstantiated. Furthermore, the FTC charged that the marketers of AcneApp falsely represented that the study in the British Journal of Dermatology proves that blue- and red-light therapy, such as the one provided by AcneApp, is an effective treatment for acne. The settlement orders prohibit these app developers from making acne-treatment claims about their mobile apps, including any safety, performance, benefits, or efficacy claims, without providing competent and reliable scientific evidence. The settlement orders also require AcneApp to pay $14,294 and Acne Pwner to pay $1,700.

This case underscores the FTC’s heightened interest in and scrutiny of the mobile marketplace and should send a strong signal to marketers that the obligation to substantiate product claims is the same, irrespective of the media in which the claims are presented. Last month, we reported on the FTC’s first privacy case involving the application of the Children’s Online Privacy Protection Act to mobile apps. These recent cases make clear that the FTC intends to apply all of its rules and regulations, including the obligation to substantiate product claims to the mobile marketing space.

Linda Goldstein is chair of the Advertising, Marketing and Media division of Manatt, Phelps & Phillips LLP, based in the firm’s New York office. She can be reached at lgoldstein@manatt.com.


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