Federal Register / Vol. 80, No. 41 / Tuesday, March 3, 2015 / Notices 11441 

10When the FTC cannot ‘‘conclude with 

confidence’’ that a specific implied claim is being 

made—for example, if the ad contains ‘‘conflicting 

messages’’—the FTC ‘‘will not find the ad to make 

the implied claim unless extrinsic evidence allows 

us to conclude that such a reading of the ad is 

reasonable.’’ In re Thompson Med. Co., 104 F.T.C. 

648, 788–89 (1984). 

11These onerous substantiation requirements 

cannot be defended as ‘‘fencing-in.’’ The FTC does 

not traditionally fence in companies by requiring a 

heightened level of substantiation. Instead, past 

FTC decisions fence in companies by extending the 

scope of a substantiation requirement beyond the 

specific product, parties, or type of conduct 

involved in the actual violation. See Federal Trade 

Commission v. Springtech 77376, LLC, et al. 

(‘‘Cedarcide Industries’’), Matter No. X120042, 

Dissenting Statement of Commissioner Maureen K. 

Ohlhausen at 3 (July 16, 2013). Requiring past 

violators to meet a higher burden of substantiation 

would not fence them in—it would only make it 

more difficult for them to make truthful claims that 

could be useful to consumers. Id. 

12 ‘‘Commissioner Ohlhausen . . . believes . . . 

that it is not reasonable to read the ads as claiming 

that the automated assessment is as accurate as a 

dermatologist. We disagree.’’ Statement of 

Chairwoman Ramirez, Commissioner Brill, and 

Commissioner McSweeny at 1. 

13See, e.g., Scott Gottlieb and Coleen Klasmeier, 

‘‘Why Your Phone Isn’t as Smart as It Could Be,’’ 

Wall Street Journal (Aug. 7, 2014) (blaming heavy 

regulation of consumer-directed health apps and 

devices for smartphones that are ‘‘purposely 

dumbed down’’ and ‘‘products that are never 

created because mobile-tech entrepreneurs choose 

to direct their talents elsewhere’’), available at 

http://online.wsj.com/articles/scott-gottlieb-andcoleen-klasmeier-why-your-phone-isnt-as-smart-asit-could-be-1407369163. 

as compared to an examination by a 

dermatologist.10

Thus, the orders impose a high level 

of substantiation despite lacking 

evidence that the marketing claims 

require such substantiation, and the 

complaints’ vague claim construction 

obscures this flawed approach.11

Despite the assurances in the majority’s 

statement as to what the orders require, 

the complaints imply—and the majority 

appears to agree 12—that reasonable 

consumers expected the apps to 

substitute for professional medical care. 

This disconnect raises the possibility 

that the Commission may use vague 

complaints to impose very high 

substantiation standards on healthrelated apps even if the advertising 

claims for those apps are more modest. 

This approach concerns me. Healthrelated apps have enormous potential to 

improve access to health information for 

underserved populations and to enable 

individuals to monitor more effectively 

their own well-being, thereby improving 

health outcomes. Health-related apps 

need not be as accurate as professional 

care to provide significant value for 

many consumers. The Commission 

should not subject such apps to overly 

stringent substantiation requirements, 

so long as developers adequately convey 

the limitations of their products. In 

particular, the Commission should be 

very wary of concluding that consumers 

interpret marketing for health-related 

apps as claiming that those apps 

substitute for professional medical care, 

unless we can point to express claims, 

clearly implied claims, or extrinsic 

evidence. If the Commission continues 

to adopt such conclusions without any 

evidence of consumers’ actual 

interpretations, and thus requires a very 

high level of substantiation for healthrelated apps, we are likely to chill 

innovation in such apps, limit the 

potential benefits of this innovation, 

and ultimately make consumers worse 

off.13

I therefore respectfully dissent. 

[FR Doc. 2015–04348 Filed 3–2–15; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Meeting of the National Preparedness 

and Response Science Board 

AGENCY: Office of the Secretary, 

Department of Health and Human 

Services. 

ACTION: Notice. 

SUMMARY: As stipulated by the Federal 

Advisory Committee Act, the 

Department of Health and Human 

Services (HHS) is hereby giving notice 

that the National Preparedness and 

Response Science Board (NPRSB), also 

known as the National Biodefense 

Science Board, will be holding a public 

teleconference. 

DATES: The NPRSB will hold a public 

meeting on March 30, 2015, from 1:00 

p.m. to 2:00 p.m. EST. The agenda is 

subject to change as priorities dictate. 

ADDRESSES: Individuals who wish to 

participate should send an email to 

NPRSB@HHS.GOV with ‘‘NPRSB 

Registration’’ in the subject line. The 

meeting will occur by teleconference. 

To attend via teleconference and for 

further instructions, please visit the 

NPRSB Web site at WWW.PHE.GOV/

NPRSB. 

FOR FURTHER INFORMATION CONTACT: 

Please submit an inquiry via the NPRSB 

Contact Form located at www.phe.gov/

NBSBComments. 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 319M of the Public Health 

Service Act (42 U.S.C. 247d–7f) and 

section 222 of the Public Health Service 

Act (42 U.S.C. 217a), HHS established 

the NPRSB. The Board shall provide 

expert advice and guidance to the 

Secretary on scientific, technical, and 

other matters of special interest to HHS 

regarding current and future chemical, 

biological, nuclear, and radiological 

agents, whether naturally occurring, 

accidental, or deliberate. The NPRSB 

may also provide advice and guidance 

to the Secretary and/or the Assistant 

Secretary for Preparedness and 

Response (ASPR) on other matters 

related to public health emergency 

preparedness and response. 

Background: This public meeting via 

teleconference will be dedicated to the 

NPRSB’s deliberation and vote on the 

findings from the ASPR Future 

Strategies Working Group. Subsequent 

agenda topics will be added as priorities 

dictate. Any additional agenda topics 

will be available on the NPRSB March 

30, 2015, meeting Web page, available at 

WWW.PHE.GOV/NPRSB. 

Availability of Materials: The meeting 

agenda and materials will be posted 

prior to the meeting on the March 30th 

meeting Web page at WWW.PHE.GOV/

NPRSB. 

Procedures for Providing Public Input: 

Members of the public are invited to 

attend by teleconference via a toll-free 

call-in phone number which is available 

on the NPRSB Web site at 

WWW.PHE.GOV/NPRSB. All members 

of the public are encouraged to provide 

written comment to the NPRSB. All 

written comments must be received 

prior to March 29, 2015, and should be 

sent by email to NPRSB@HHS.GOV with 

‘‘NPRSB Public Comment’’ as the 

subject line. Public comments received 

by close of business one week prior to 

each teleconference will be distributed 

to the NPRSB in advance. 

Dated: February 24, 2015. 

Nicole Lurie, 

Assistant Secretary for Preparedness and 

Response. 

[FR Doc. 2015–04303 Filed 3–2–15; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Disease Control and 

Prevention 

Advisory Committee on Immunization 

Practices (ACIP) 

Correction: This notice was published 

in the Federal Register on January 30, 

2015, Volume 80, Number 20, Page 

5116–5117. Due to inclement weather in 

the Atlanta, Georgia area, the first day 

of the meeting scheduled for February 

25 and 26, 2015 was not held. The 

second day of the meeting will take 

place as follows: 

mstockstill on DSK4VPTVN1PROD with NOTICES