FTC Apps-olutely Reviewing Claims Made by Apps Marketers for Potential Enforcement

The FTC has been making novel headlines in going after affiliate marketers and use of endorsements on blogs and yesterday adds a new first — announcing consents involving allegedly deceptive health claims by mobile app marketers. The AcneApp available at iTunes for $1.99 and Acne Pwner available at the Android Marketplace for $.99 claimed to treat acne. The buyer was to hold her smartphone screen to the affected area and blue or red light would eliminate certain acne causing bacteria and reduce blemishes. Ads for the Apps relied on satisfied customer testimonials. Some AcneApp ads cited a study in the British Journal of Dermatology supporting it claims. The study did not test the efficacy of the mobil app. Readers of this blog know, the FTC has increasingly been requiring product testing to support health claims and not reliance on general studies for substantiation. Further, use of customer testimonials, even if truthful, do not provide the needed support that the product works. Such anecdotes must be supported by science showing typical results. In one of his customary cheeky comments, Chairman Leibowitz said in announcing the settlements, "unfortunately when it comes to curing acne, there's no app for that." The consents [available here and here] include injunctive relief as well as consumer redress. Before making any claims that apps or other devices cure acne, the respondents must have competent and reliable scientific evidence, defined to mean at least two adequate and controlled independent studies. While the redress amounts are modest, as a percentage of total sales they are significant (e.g., $1,700 in the case of Acne Pwner, but total downloads at $0.99 only totaled 3,300). Why go after such small potatoes? These cases are a reminder that health claims are a continued priority for the BCP. They should also stand as a warning to Apps makers to make sure the claims made for apps, even if not as life changing as a cure for acne, are substantiated. The disclaimer from AcneApp that "this app is for entertainment purposes only" did not deter the FTC from enforcement, presumably because a marketer can generally only use a disclaimer to add important clarifying information and not take away from the promises it makes it its ads. The FTC is clearly monitoring claims in the app space and we expect this will not be the last of such enforcement efforts. – Amy Mudge

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