FTC Settles False Advertising Action Against Breathometer, Inc.

Print Friendly, PDF & Email

January 26, 2017

false-advertisingOn Monday, the Federal Trade Commission (“FTC”) announced that it had settled claims against the marketer of two app-supported smartphone accessories allegedly advertised as having the ability to accurately measure a consumer’s blood alcohol content (“BAC”).  The apps offered by Breathometer, Inc. (“Breathometer”), as well as its founder, were featured on the television show “Shark Tank.”  As a result of his appearance on Shark Tank, Breathometer’s founder was able to obtain initial financing for his Breathometer app.  Breathometer offered two versions of the app, an original and an upgraded “law-enforcement grade product.”  According to the FTC, however, neither app had been “adequately tested for accuracy” by the company.  After undertaking its investigation, the FTC commenced a false action against Breathometer and its founder in the United States District Court for the Northern District of California, which was then immediately settled.

Why did the FTC Find Breathometer’s Marketing Misleading?

Breathometer Settles False Advertising Claims with the FTC

According to the FTC’s complaint, not only were the apps inadequately tested, but Breathometer and its founder were aware that the upgraded version of the app “regularly understated BAC levels.”  Nevertheless, Breathometer advertised the apps as having been “government-lab grade” tested.

Under the terms of the settlement, Breathometer and its founder are barred from making future accuracy claims for consumer breathalyzer products unless and until such claims are supported by “rigorous testing.”  Breathometer must also: 1) notify all consumers who purchased either of the apps about its false advertising claims; and 2) pay full refunds to consumers who purchased either of the apps.

Protect Yourself

Despite changes at the top levels of the FTC, the regulatory agency still has a mandate to enforce federal advertising laws and regulations, which it is expected to continue to vigorously pursue.  Just two weeks ago, we blogged about the FTC’s joint-action with the New York State Attorney General’s Office against marketers of a dietary supplement involving claims of false advertising.  In this regulatory climate, it remains imperative that marketers consult with competent counsel to ensure that their respective advertising practices are compliant with federal and state laws and regulations.

If you are interested in learning more about this topic, please visit the Telemarketing Law practice area of our website.  If you have been served with process concerning your marketing practices in general, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

Attorney Advertising

Similar blog posts:

All Natural Marketer Found to have Violated the FTC Act

FTC Complaint Filed Against IoT Businesses

FTC Addresses Homeopathic Drug Advertising

David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

Schedule a Call
In The Know

Trending Topics

New York Sweepstakes Law blog- Klein Moynihan Turco

New York Sweepstakes Law: Are You Compliant?

Print Friendly, PDF & Email

In general, a lottery exists when entrants pay for the chance to win a prize. States alone reserve the right to administer lotteries. Businesses can eliminate one element of what would otherwise be an illegal lottery, in order to transform it into a legal promotional game. If the requirement to

TCPA surveys

An Ad or not an Ad: NY Weighs in on TCPA Surveys

Print Friendly, PDF & Email

Another day, another court decision that refines constitutes a Telephone Consumer Protection Act (“TCPA”) unsolicited fax advertisement. A Manhattan-based federal court recently issued a decision that removes faxed invitations to participate in a survey from the TCPA definition of advertisement. In drawing this distinction for TCPA surveys, the Court held

NY sports gambling law- Klein Moynihan Turco

Agreement Reached to Enact NY Sports Gambling Law

Print Friendly, PDF & Email

This week, Governor Andrew Cuomo and the New York State Legislature agreed to a budget deal that will bring mobile sports betting to the State through a unique NY sports gambling law.  Upon the Governor’s signature, NY sports gambling is primed to become the nation’s largest market. However, New York

UK and US Social Media Influencer Laws

UK and US Social Media Influencer Laws

Print Friendly, PDF & Email

In September of 2020, the United Kingdom’s (“UK”) Committee of Advertising Practice (“CAP”) reviewed the Instagram accounts of 122 UK-based social media influencers to determine whether content was being properly flagged as advertising in accordance with applicable social media influencer laws. This past March, the UK Advertising Standards Authority (“ASA”)

Running a Telemarketing Business?

Get a Free Compliance Review From an Experienced TCPA Lawyer.

Share on facebook
Share on google
Share on twitter
Share on linkedin