Digital health’s explosion in the last few years has led to the proliferation of new technologies and novel solutions to long-standing health problems. FemTech, in particular, has become a major movement in women’s healthcare, and the market appears ready to support this rapid growth. A recent report projects FemTech to grow by approximately 17% over the next five years with a market value over $60 billion.^[1] Despite FemTech’s initial focus on access to reproductive health services, the FemTech market has evolved to encompass a broad range of women’s health issues from fertility to cardiovascular disease while increasing access to traditionally stigmatized or ignored health conditions such as menopause, mental health, and sexual health.

Reproductive health and women’s health are among of the foremost health issues of today, especially in light of the Supreme Court’s recent ruling in Dobbs v. Jackson Women’s Health Organization (Dobbs). While Dobbs found that there is no federal constitutional right to an abortion, the decision has potential implications for maternal and fetal health in addition to fertility services, primary care, and mental health services. After the Dobbs decision was issued in June, a number of states introduced or passed legislation that prohibited or restricted access to reproductive health services that may limit access to reproductive health services beyond abortion and/or grant certain rights to fetuses at the time of conception.^[2] With its burgeoning social impact and support, FemTech is uniquely positioned to preserve access to medically necessary care in innovative and inclusive ways.

What is “FemTech”?

Female Health Technology or “FemTech” ranges from digital health software to technology-enabled service providers with a focus on the health needs of women. The term was coined in 2016 when CEO Ida Tin, female entrepreneur, used the phrase “FemTech” to legitimize her work in developing a women’s health application to attract investors.^[3] Today, FemTech is a growing force with hundreds of companies moving into this space to provide a wide-range of women-centric products and applications. Especially as the reproductive health landscape has shifted dramatically this year, FemTech innovators have offered novel approaches to preserving access to care as discussed below.

Exciting Innovations in FemTech

Wearables

FemTech companies are creating wearable wellness technology that integrates with smartphones. These technologies offer data-driven approaches for managing women’s healthcare and allow women to take control of their care and health-related data. Some examples include:

• A wearable device that tracks ultra-violet exposure and provides skincare advice back to its user; and

• A smart breast pump that tells its user when the milk container is full and automatically stops pumping.

Virtual Visits to Improve Care Delivery

Over the past few years, telehealth access has expanded rapidly offering women many more options for accessing specialized medical care without leaving home to receive services like:

• Online prescriptions and consultations with licensed providers for women’s wellness issues like skin care, hair loss, and mental health; and

• Whole body health in a virtual setting for women’s primary care, gynecology, and mental health.

Medical Screenings & Digital Therapeutics

More companies are exploring how to use digital health technology to provide improved screening and diagnoses including the use of:

• Digital platforms and artificial intelligence to more efficiently and accurately detect cervical cancer cells in women;

• A cryoablation medical device to freeze and remove abnormal cervical lesions; and

• Digital therapeutics as part of breast cancer treatment plans to promote behavior modifications to improve patient outcomes.

Integration With the Legal Data Privacy Regime

The United States has a patchwork of privacy and data security laws at the federal and state level. As the capabilities of digital health technology increases, FemTech companies may face additional legal risks when collecting and storing personal health information about their customers. In the wake of Dobbs decision, consumers have raised concerns that FemTech companies may disclose reproductive health data to law enforcement, which could then be used as evidence to prosecute them for obtaining illegal reproductive health services under state law.^[4] In response to these concerns and as a result of the changed data privacy climate, the Federal Trade Commission (“FTC”) has restated its commitment to enforcing the law against illegal use and sharing of highly sensitive data, such as location information.[5]

As a result of the evolving landscape, FemTech companies should anticipate an increase in the number of requests for sensitive information along with the possibility that the disclosure of users’ data will be compelled by law enforcement or other third parties, which can lead to costly litigation if not handled properly. In order to reduce exposure to hefty financial penalties for failure to comply with applicable federal and state privacy and security laws and the time and expense of litigation, FemTech companies should proactively develop strategies for navigating the data privacy and security landscape to comply with the applicable laws, effectively communicate data privacy of its users, and manage third party data storage.

While updates to privacy and security programs are multi-faceted and may take time to implement, it is important for FemTech companies to consider steps they can undertake now to mitigate potential legal exposure.

The Future of FemTech

FemTech is an exciting and burgeoning industry that shows promise for the future of meeting the specific healthcare needs of women. With advancements in digital health and telehealth, more companies and technologies will likely focus on addressing women’s medical needs. As a result of an energized consumer base, it is anticipated that investment in this area will continue to grow. As this industry grows, it is important for FemTech companies to take steps to appropriately manage and protect the privacy of the data of its users.

FOOTNOTES

^[1] “$60.7 Billion Worldwide Femtech Industry to 2031 – Identify Growth Segments for Investment,” AP News (July 1, 2022).

^[2] For additional information regarding the Dobbs decision, please see the following resources: Supreme Court Decision in Dobbs v. Jackson Women’s Health Organization Overturns 50 Years of Precedent on Abortion Laws and Rights | Healthcare Law Blog (sheppardhealthlaw.com), WHLC Dobbs Series Part 1 Where are we now?: Sheppard Mullin Webinar.

^[3] “FemTech Founder: An Interview with Clue CEO, Ida Tin,” FemTech Live (Feb. 11, 2021).

^[4] See Rina Torchinsky, How period tracking apps and data privacy fit into a post-Roe v. Wade climate, NPR (Jun. 24, 2022), https://www.npr.org/2022/05/10/1097482967/roe-v-wade-supreme-court-abortion-period-apps; see also Jack Gillum, Post-Dobbs America Is a Digital Privacy Nightmare (Aug. 4, 2022), https://www.bloomberg.com/news/articles/2022-08-04/period-tracking-apps-among-common-post-dobbs-privacy-risks?leadSource=uverify%20wall. .

^[5] See Kristin Cohen, Location, health, and other sensitive information: FTC committed to fully enforcing the law against illegal use and sharing of highly sensitive data, FTC (Jul. 11, 2022), https://www.ftc.gov/business-guidance/blog/2022/07/location-health-and-other-sensitive-information-ftc-committed-fully-enforcing-law-against-illegal.