On the fifth season of ABC's hit show Shark Tank, entrepreneur Charles Michael Yim handed the sharks champagne as he pitched them on an irresistible invention: a smartphone-attached breathalyzer. Blow into the device and the app would calculate your alcohol levels, Yim explained, so you would know if it were safe to drive home. So charmed were all five investors that they offered to put $1 million in his startup, Breathometer, for a 30% stake.
But the Federal Trade Commission took a more sober view of the startup’s promises. On Monday, more than three years after the Shark Tank episode, the FTC said that Breathometer had settled allegations that "they lacked scientific evidence to back up their advertising claims."
Under the settlement, Yim and Breathometer are prohibited from making accuracy claims about a consumer breathalyzer product unless backed by “rigorous testing,” according to the FTC. They must also notify consumers of the potential inaccuracy and refund them.
“People relied on the defendant’s products to decide whether it was safe to get behind the wheel,” Jessica Rich, director of the FTC’s Bureau of Consumer Protection, said in a statement. “Overstating the accuracy of the devices was deceptive — and dangerous.”
The company acknowledged the settlement on its website, writing, “We feel it is important to clarify that this settlement does not undermine our achievements in creating quality consumer health devices.” It said that it had stopped making both Breathometer products in 2015, before the FTC’s inquiry.
As part of the settlement, Breathometer did not admit or deny the FTC’s allegations.
The Breathometer settlement is the latest in a series of incidents in which snazzy-sounding apps and gadgets make health claims that may be too good to be true. Scanadu, which was selling a Star Trek-style "tricorder" that claimed to instantly monitor your vital signs, recently told customers that it would deactivate support for the devices so they will no longer work per Food and Drug Administration orders. Last year, the company behind Lumosity, the online brain-training game, paid $2 million to settle FTC allegations that its marketing claims — that playing could stave off cognitive decline — were not scientifically validated.
The Breathometer device was sold online in two versions, Original ($49.99) and Breeze ($99.99), and generated $5.1 million in sales, according to the FTC. The company also raised nearly $140,000 in a successful Indiegogo campaign to make the gadget.
Ads for both products claimed that their accuracy was proven by “government-lab grade testing,” while Breeze was also touted as a “law-enforcement grade product,” according to the FTC. But the agency alleged that neither was properly tested for accuracy, and that the company knew that Breeze “regularly understated” blood alcohol concentration levels.
The startup has since switched gears and started selling a new device, Mint, in September. The $99.99 smartphone-attached device purports to measure your oral health by measuring gases correlated with bad breath and gum disease. “We stand behind our current product, Mint, and its quality and pioneering technology,” the company wrote on its website.
Yim told BuzzFeed News by email, "We are pleased to reach a resolution with the FTC through this settlement. Although we disagree with many of the FTC's allegations, after careful consideration, we chose to settle the matter so we can remain focused on the Breathometer's future, not its past."
Scanadu will deactivate support for its "tricorder"-style health information devices so they will no longer function. An earlier version of this story misstated the company's plans.
This story has been updated to include remarks from Breathometer's CEO.