Protecting Public Health Amidst Data Theft, Sludge, and Dark Patterns: Overcoming the Constitutional Barriers to Health Information Regulations

62 Pages Posted: 26 Sep 2023

See all articles by Jon Garon

Jon Garon

Shepard Broad College of Law

Date Written: March 1, 2023


Public health has grown to over $4.1 trillion in spending in the past year, yet for millions of people, their health care is ineffective and sometimes harmful. New technologies have improved health access and treatment, but they can expose an individual’s personal health information to theft and misuse. There is little or no regulation for the reuse of data once it has been lawfully collected for general purposes. Any observer can create a detailed personal diary of an individual or a population by building from a mosaic of inferential data—such as lawfully obtained zip code information, non-regulated health care application data, purchasing patterns, location information, and social media engagement. Using behavioral economics, companies manipulate the public to make unhealthy lifestyle choices and promote health care scams. The FTC has labeled these practices as dark patterns, designed to nudge consumers into overpayments and choices that maximize revenue rather than wellness.

The article first addresses the nature of the health care threat posed by the unregulated marketplace and the limited role the FTC plays in stopping unfair and deceptive practices that harm the public. The article next addresses the evolution of commercial speech and the extent to which the FTC will be able to expand its protections in light of recent case law. The article identifies new approaches for the FTC to expand its regulatory protection in a manner consistent with the heightened scrutiny applied by the Supreme Court.

Finally, while calling for increased enforcement that meets First Amendment scrutiny, the article also promotes a new governmental strategy to meaningfully fund public health information with sufficient resources to overcome the existing public health disinformation industry to provide accurate, timely, and behaviorally motivating information to the public in order to save lives and promote better health. Recognizing that the police power is insufficient to stem the tide of disinformation, the article calls for a comprehensive approach to producing public health information that benefits all members of the public.

Keywords: FTC, Dark Patterns, Privacy, Data Theft, First Amendment, Regulation, behavioral advertising, misinformation, disinformation

JEL Classification: I11, I18, I19, K1, K32, K42, L14, L41, L50, L65, L66

Suggested Citation

Garon, Jon M., Protecting Public Health Amidst Data Theft, Sludge, and Dark Patterns: Overcoming the Constitutional Barriers to Health Information Regulations (March 1, 2023). Akron Law Review, Vol. 56, No. 2, 2023, Available at SSRN:

Jon M. Garon (Contact Author)

Shepard Broad College of Law ( email )

3301 College Avenue
Ft. Lauderdale, FL 33314
United States

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