| The Federal Trade Commission is taking aim at one of telehealth’s biggest success stories, accusing Hims & Hers of exploiting patients’ most sensitive health information to turbocharge its advertising business. The FTC alleges the telehealth platform illegally shared consumers’ sensitive health information with advertising platforms maintained by Meta and Snap — and failed to adequately disclose those practices before consumers enrolled. In a statement, Hims & Hers called the claims “baseless.” It disclosed that the FTC had been investigating the company for nearly three years, alleging that the lawsuit “disregards” evidence provided to the agency during that time and “contorts the law to try to manufacture claims.” “This is not enforcement grounded in consumer protection; it is an effort to generate headlines at our expense,” Hims & Hers said in its statement. Why it matters: Hims & Hers is among the largest telehealth companies in the country, valued at more than $6 billion. It offers patients direct access to treatments for hair loss, mental health, erectile dysfunction, as well as diagnostic testing and weight loss drugs. The company previously faced scrutiny from the Food and Drug Administration and Wegovy-maker Novo Nordisk about selling copycat versions of GLP-1 medications, but Hims & Hers has since eased tensions with federal health regulators and Novo by ceasing to publicly market them. → Now consumer protection officials, in partnership with California and Utah, are alleging that the platform failed to clearly disclose material terms of its subscriptions — including its data-sharing practices — in addition to billing patients before prescriptions were approved and failing to provide a simple way to cancel recurring subscriptions. Multiple lawyers with experience working at the FTC tell me that the case could be a test of how far the agency can go in trying to secure financial penalties through a law meant to protect consumers from being tricked into unwanted online subscriptions or recurring charges. The law, called the Restore Online Shoppers Confidence Act, or ROSCA, was enacted in 2010. → The backdrop: A 2021 Supreme Court ruling cut off one of the primary laws the FTC used to secure monetary damages. Legal experts tell me the agency has taken a broader approach to differing laws and regulations at its disposal as another way to extract penalties. “ROSCA has been a very important part of that,” Kathleen Benway, senior counsel at Alston & Bird and former chief of staff at the FTC’s Bureau of Consumer Protection, tells me. → In one part of the complaint against Hims & Hers, the FTC is alleging that the platform violated ROSCA by not telling consumers about “Hims’ practices of sharing consumers’ sensitive health information with advertising platforms.” The FTC considers this information among the “material terms” people should know about before making a purchase, along with the timing of any charges associated with a subscription and when patients will receive refills. ROSCA doesn’t contain any definitions of what constitutes a material term. While the agency has expanded what should be considered “material terms” when enforcing the law, Benway and others argue that applying it to privacy policies extends beyond details related to a financial transaction. “ROSCA is one of those statutes where they can seek money, so they’re trying to turn it into a privacy statute, and it’s not a privacy statute,” said a lawyer directly familiar with the Hims & Hers case, who spoke on the condition of anonymity to discuss details. “It is a stretch — and a very significant stretch.” However, another former FTC attorney, who spoke on the condition of anonymity to talk about the shift in the agency’s approach, says that it’s not so cut and dry. “The plain text statute supports a reading that companies must disclose all material terms of the transaction,” said the lawyer. “But what is material is open for interpretation.” The FTC declined to comment about claims it was overstepping the bounds of ROSCA. The Senate’s health committee on Thursday morning voted to advance a duo of Trump administration health agency picks: Erica Schwartz, nominated to lead the Centers for Disease Control, and Sean Kaufman, tapped to lead the Administration for Preparedness and Response (ASPR). Kaufman’s nomination had been in jeopardy, in part due to questions from Sen. Bill Cassidy (R-Louisiana), a physician who leads the panel, regarding his previous comments and social media posts about vaccines and their links to autism. Before voting to advance Kaufman’s nomination, Cassidy said his fears had been assuaged in conversations with Kaufman, and gained assurances that Kaufman would not be involved in vaccine policy. What’s notable: Cassidy also said that he’d extracted concessions from the Department of Health and Human Services, including “personnel changes,” though he did not provide any details. The key quote: “We know that some individuals within HHS have made, and continue to make, decisions undermining confidence in vaccines and public health. This includes pushing the dangerous lie that vaccines are related to autism, and that we should not invest in promising platforms like the mRNA vaccines,” Cassidy said. “After multiple conversations with senior HHS officials, several actions have been taken, and will be taken, to address these concerns, including key personnel changes and better oversight to ensure that science, not ideology, is driving decision-making,” he added. But: Cassidy had also received earlier promises from Health Secretary Robert F. Kennedy Jr. in order to secure support for his nomination to lead HHS. Kennedy had pledged, among other things, that the CDC would keep language on its website stating that vaccines do not cause autism. That promise later unraveled when the agency rewrote the page to cast doubt on the scientific consensus, before HHS made minor changes this month. Cassidy said that there would be more changes. “I will continue to make sure that these commitments are held. If they are not held, there’ll be future leverage points for this committee over future appointees if these commitments are not kept,” Cassidy said on Thursday. → When asked about the personnel changes, a spokesperson for the department declined to give specifics. “Secretary Kennedy and HHS leadership continue to build a talented team dedicated to advancing the Department’s mission and delivering on the Trump Administration’s Make America Healthy Again agenda,” HHS spokesperson Emily Hilliard told me in an emailed statement. This new KFF poll about abortion and the upcoming midterm elections: “KFF Health Tracking Poll: Mifepristone and the Midterms.” “Judge declines to block strict work rule for sick patients on Medicaid,” Politico’s Alice Miranda Ollstein reports. “Medicaid Insurers’ Contracts on the Line in Tight Governor’s Race,” Tony Leys writes at KFF Health News. “Capricor Duchenne cell therapy voted down by FDA panel,” Ben Fidler reports at BioPharma Dive. This newsletter is published by WP Intelligence, The Washington Post’s subscription service for professionals that provides business, policy and thought leaders with actionable insights. WP Intelligence operates independently from The Washington Post newsroom. Learn more about WP Intelligence. | 
