The Federal Trade Commission (“FTC”) has taken a number of actions this year against healthcare apps based on data practices that FTC alleges are a violation of federal law. The latest enforcement action, on May 17, 2023, is against Easy Healthcare Corporation (“Easy Healthcare”), which operates the Premom ovulation tracker application (“Premom”), for allegedly violating Section 5 of the FTC Act and the Health Breach Notification Rule (“HBNR”).

The FTC alleges that Easy Healthcare deceived users by disclosing users’ sensitive health data with third parties and failed to notify consumers of these unauthorized disclosures in violation of the HBNR. The proposed order, which was brought by the U.S. Department of Justice on behalf of the FTC, imposes a civil penalty of $100,000 and prohibits Easy Healthcare from sharing user personal health data with third parties for advertising, among other requirements. As part of a related action, Easy Healthcare has agreed to pay an additional $100,000 to Connecticut, the District of Columbia, and Oregon for violating their respective laws.

The latest enforcement action against Premom follows recent FTC actions against GoodRx Holdings, Inc. for violating Section 5 of the FTC Act and the HBNR and BetterHelp, Inc. for violating Section 5 of the FTC Act, which appears to be part of a larger effort by the FTC to monitor the practices of websites, apps, and connected devices that capture consumer’s sensitive health information. The action also signals the FTC’s spotlight on companies’ use of reproductive health data, particularly in menstrual cycle and fertility applications, in the wake of the Dobbs v. Jackson Women’s Health Organization (“Dobbs”) decision.

Digital health companies and other organizations across the health care industry should take note of the trend of enforcement actions and evaluate their business policies and practices.

For more detailed information, see FTC Announces Enforcement Action Against Ovulation Tracking App Premom.

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Photo of Jodi G. Daniel Jodi G. Daniel

Jodi Daniel is a partner in Crowell & Moring’s Health Care Group and a member of the group’s Steering Committee. She is also a director at C&M International (CMI), an international policy and regulatory affairs consulting firm affiliated with Crowell & Moring. She…

Jodi Daniel is a partner in Crowell & Moring’s Health Care Group and a member of the group’s Steering Committee. She is also a director at C&M International (CMI), an international policy and regulatory affairs consulting firm affiliated with Crowell & Moring. She leads the firm’s Digital Health Practice and provides strategic, legal, and policy advice to all types of health care and technology clients navigating the dynamic regulatory environment related to technology in the health care sector to help them achieve their business goals. Jodi is a contributor to the Uniform Law Commission Telehealth Committee, which drafts and proposes uniform state laws related to telehealth services, including the definition of telehealth, formation of the doctor-patient relationship via telehealth, creation of a registry for out-of-state physicians, insurance coverage and payment parity, and administrative barriers to entity formation.

Photo of Brandon C. Ge Brandon C. Ge

Brandon C. Ge is a counsel in Crowell & Moring’s Washington, D.C. office, where he is a member of the firm’s Privacy and Cybersecurity and Health Care groups.

Brandon advises clients on a wide range of privacy and cybersecurity laws, regulations, and standards.

Brandon C. Ge is a counsel in Crowell & Moring’s Washington, D.C. office, where he is a member of the firm’s Privacy and Cybersecurity and Health Care groups.

Brandon advises clients on a wide range of privacy and cybersecurity laws, regulations, and standards. His practice has a particular focus on advising clients – from start-up digital health companies to large health plans – on all aspects of compliance with the Health Insurance Portability and Accountability Act (HIPAA). Brandon regularly assists clients with responding to security incidents and has successfully represented clients in Office for Civil Rights investigations.

Photo of Allison Kwon Allison Kwon

Allison Kwon supports Crowell Health Solutions, a strategic consulting firm affiliated with Crowell & Moring, to help clients pursue and deliver innovative alternatives to the traditional approaches of providing and paying for health care, including through digital health, health equity, and value-based health…

Allison Kwon supports Crowell Health Solutions, a strategic consulting firm affiliated with Crowell & Moring, to help clients pursue and deliver innovative alternatives to the traditional approaches of providing and paying for health care, including through digital health, health equity, and value-based health care. She is a health care policy consultant in the Washington, D.C. office.