medical appsAs 2017 quickly approaches, and consumers look for gift ideas or help with their New Year’s resolutions, “apps” that focus on fitness and health are increasingly popular. A recent FTC settlement against Aura Labs, Inc. (“Aura Labs” or “Aura”) and its principal, for allegedly making deceptive claims regarding the accuracy of its blood pressure measuring app, confirms that the same advertising rules apply to claims made for an app as for “hard goods.”

Aura Labs sold the “Instant Blood Pressure App,” a mobile device software application that uses mathematical algorithms, mobile device measurements, and consumer inputs (gender, birthdate, height, and weight) for the purported purpose of blood pressure measurement. The app was available for purchase and download through the Apple App Store or the Google Play marketplace for $3.99 or $4.99.

According to the FTC’s complaint, Aura Labs represented that the Instant Blood Pressure App measures blood pressure as accurately as a traditional blood pressure cuff and serves as a replacement for the traditional cuff. The FTC, however, found that claim to be both unsubstantiated and false because, according to the FTC, studies demonstrate clinically and statistically significant deviations between the app’s measurements and those from a traditional blood pressure cuff. Thus, the close look that the FTC gives to claims involving dietary supplements, food or devices will also be brought to bear on health apps.

In the consent order, the FTC specifically calls out a concern for claims made to vulnerable audiences noting “when a representation or sales practice targets a specific audience, such as children, the elderly, or terminally ill, ‘ordinary consumers’ includes reasonable members of that group.” This is consistent with statements by the current Consumer Protection Bureau Director we flagged in a prior blog that policing claims targeting ageing Baby Boomers was an area of priority, as well as the FTC workshop held last week on The Changing Consumer Demographics.

As part of the settlement, Aura Labs is prohibited from making any claim or representation that its products measure blood pressure as accurately as a traditional blood pressure cuff, measure blood pressure with a specified degree of accuracy, or serve as a replacement for a traditional blood pressure cuff unless Aura Labs possess and relies upon competent and reliable scientific evidence to substantiate that the representation is true. Aura Labs is also prohibited from making other health-related claims without the proper scientific evidence.

The case also focuses on online reviews and failure to disclose a material connection. Online reviews can be critically important in influencing consumer purchasing decisions, particularly for new products where potential buyers will look to the experiences of earlier adopters. A glowing review in the Apple App Store was found to have been written by Aura’s CEO. Other reviews were allegedly left by relatives of the Company co-founders. Under the consent order, Aura Labs must disclose all material connections in the use of endorsements.

Judgment in the amount of $595,945.27 was entered in favor of the Commission against both the company and the individual, but that judgment is suspended based on the financial statements provided by the defendants.

The FTC’s action here reiterates the Commission’s active stance in policing unsubstantiated and deceptive claims – especially those that may have an impact on consumers’ health. This action also highlights the obvious, but somehow recurring, problem with undisclosed material connections in testimonials. Testimonials should reflect honest consumer opinions, and any material connection (monetary or otherwise) between the brand and the endorser must be clearly disclosed. There is no app that excuses either of these obligations.