On July 14, 2023, the Federal Trade Commission (FTC) announced that it has finalized its order against online counseling service BetterHelp, Inc. requiring the company to pay $7.8 million.

Under the final order, BetterHelp is prohibited from disclosing health information for advertising purposes, and cannot misrepresent its data sharing practices. BetterHelp must:

• obtain affirmative express consent before disclosing personal information to certain third parties for any purpose;
• put in place a comprehensive privacy program that includes strong safeguards to protect consumer data;
• direct third parties to delete the consumer health and other personal data that BetterHelp revealed to them; and
• limit how long it can retain personal and health information according to a data retention schedule.

When using personal health information (for advertising or otherwise), companies must be transparent and accurate with how they describe what information they collect, use and share with third parties.  And when it comes to using personal health information for advertising purposes, companies should now assume that the FTC expects them to obtain affirmative express consent to use and share that information with third-party advertisers.