Breathalyzer accuracy is serious business. While the instructions may indicate “blow here,” that instruction does not apply to marketers of the device.  The Federal Trade Commission (“FTC”) drove this point home in a recent settlement with the marketer of an app-supported breathalyzer device that no doubt left the marketer feeling a bit hungover.  The settlement also serves as a reminder that the FTC maintains broad unfairness authority which in this case applied to degradation of product performance over time.  The settlement is also part of the FTC’s continuing focus on the burgeoning smartphone app marketplace.

The FTC in its complaint alleged that in advertising its “Original” and “Breeze” breathalyzer device variants, Breathometer falsely stated that the products were proven, through rigorous government lab-grade tests, to accurately measure consumers’ Blood-Alcohol-Content (“BAC”). Breathometer also claimed that its Original device was as accurate as other high-end breathalyzers, and that its Breeze variant was more accurate than other high-end breathalyzers and was a “law-enforcement grade product.”

The devices, available at stores such as BestBuy and online, work by connecting to a consumer’s smartphone either through the phone’s audio jack or Bluetooth, depending on the model.  The consumer would then open the Breathometer App, blow into the device, and within about 5 seconds, the smartphone would provide a purported BAC.

But according to the FTC, the devices were not as accurate as claimed.  In fact, the complaint alleges that Breathometer learned of accuracy problems with its Breeze devices in late 2014.  The devices suffered from a downward “drift” in BAC calculations over time.  While Breathometer originally tried to recalibrate the devices, in March 2015 the company discovered that the device’s BAC sensors significantly degraded over time, providing no reliable means of recalibrating the products in the field.  This degradation lead to a general understating of consumers’ BAC.  According the FTC, however, Breathometer failed to notify consumers that the devices were inaccurate and could understate the users’ BAC until June 2016.  The FTC found that this failure to act was likely to cause substantial injury and thus constituted an unfair act or practice in violation of Section 5 of the FTC Act.

Under the terms of the settlement, Breathometer’s future breathalyzer accuracy claims must be substantiated using a subset of the Department of Transportation’s Model Specifications for Devices to Measure Breath Alcohol.  This is a rigorous standard and is a much more specific form of substantiation than is usually required.  Nevertheless, the FTC concluded this standard was necessary under the circumstances.