Fitness wearables have been around for a while. It all started with the humble pedometer and the now hallowed 10,000 steps a day. Then came wireless heartrate monitors and later smartphones with accelerometers capable of measuring movement in three-dimensional space and, more recently, the smartwatch.
Wearable fitness technology is undoubtedly big business: some estimates suggest that by 2023 the global market for fitness trackers could reach US$60 billion. It is therefore unsurprising that some of the technology giants are now jostling for market share – what was once niche has become mainstream.
Enter the giants
Amazon launched its new Amazon Halo Band in late August. The device itself is for data gathering only and separately pairs with the Halo app. The device contains an accelerometer, temperature sensor, heart rate monitor and two microphones and is billed as being able to provide a suite of AI-powered health features that provide insights into overall wellness – a divergence from the more traditional fitness trackers. It is also possible for customers to link their Amazon Halo accounts to third party programs.
Hot on the heels of the Amazon Halo Band, Apple has unveiled its latest iteration of its smartwatch (the Series 6) which features, among other things, an ECG monitor and blood oxygen measurement. It can be used with Apple Fitness+, a new virtual workout service from Apple, which incorporates metrics collected by the device to create a personalised workout experience.
Not wishing to be left behind in the fast-growing fitness wearables market, Google struck a deal to acquire Fitbit in late 2019 (subject to shareholder and regulatory approval) which would give Google a well-established foothold in the market.
Clearly the race is on to commercialise an ever-increasing array of data generated by fitness wearables and, for these latest generation of devices, the lines are becoming blurred as to what is fitness and wellbeing data and what is medical. For example, blood oxygen measurement has been thrust into the spotlight recently as abnormally low readings could serve as early signs of respiratory conditions such as COVID-19.
As wearables become more technologically advanced and collect ever more data from us, it is likely that there will be much more focus on privacy and use of the data – especially if the data is being shared with third parties (for example with third party app providers in the Apple or Amazon ecosystems) – and security. You might not particularly care who knows that you achieved 10,011 steps yesterday; but you might care a lot more about who knows that this week you've got lower than normal blood oxygen levels and an elevated heart rate (and may therefore have COVID-19 or other respiratory illness). You might really care about how your data is stored, how it is kept secure, who can access it and whether you can control how and when it is deleted.
This has not escaped the attention of the regulators. The European Commission recently announced that it has opened an in-depth investigation to assess the proposed acquisition of Fitbit by Google under EU Merger Regulation. The Commission's primary focus is not privacy per se but rather whether control by Google over data collected via Fitbit's wearable devices would distort competition in the online search advertising services and ad tech services markets (by virtue of the data advantage Google would gain in the personalisation of the ads it serves). However, the Commission is liaising with the European Data Protection Board in respect of data protection issues and the Commission has granted Privacy International interested third party status allowing Privacy International to make submissions on privacy issues direct to the Commission during the course of the investigation. Interventions by civil bodies in this manner are extremely rare – to say that the Commission is taking this seriously is an understatement.
Business and consumer wearables
It is not just the consumer wearables market that is growing rapidly; the B2B market has also seen robust growth. For example, the use of fitness trackers and analytics is now ubiquitous in elite-level sport. Despite the recent foray of consumer wearables into health/wellness (such as the latest smartwatches measuring blood oxygen levels), there remains a fundamental divergence in purpose and design between consumer wearables and B2B wearables. Taking blood oxygen measurement as an example, smartwatches are designed as much for their aesthetic appeal as they are their use – we are all used to wearing watches on our wrists – and although they may contribute to overall wellness, they are not medical-grade devices and cannot be used for medical purposes. If medical-grade, and regulatory approved, devices are required (e.g. for use is clinical trials) then this gap in the market is currently filled by the B2B players.
However, this does not mean that the consumer and B2B market will remain completely segmented. As Anmol Sood, CEO of Equivital, which develops professional wearable tech products commented: "The internet and GPS tracking were originally military inventions and it took years for them to become widespread in consumer use – now they are both cornerstones of our consumer lives. Ultimately the end-user of wearables are consumers, even in the case of B2B wearables. If the technology is good enough and the use-case compelling enough, there is no reason why some of the technology we are now seeing in the B2B wearable space won't become widely adopted in the consumer market."
Perhaps this means we might yet see some consolidation between the B2B and consumer players.
Navigating the regulatory landscape
This type of data clearly has the potential to be both very valuable and very personal. COVID-19 has made us all armchair epidemiologists and one doesn't need a doctorate in epidemiology to appreciate the appeal in exploring the potential to track the spread of COVID-19 (or other illnesses) by analysis of biodata from wearable devices; or the potential value in harvesting such biodata to the healthcare industry in general.
This raises interesting legal issues around privacy, data protection and regulatory compliance. Our Technology, Life Sciences, Data and Competition teams are experts in advising on digital health projects for their clients. They pair best-in-class technical experts with leading lawyers and advisors, and advise on all strategic, technical, legal and regulatory matters to ensure compliance by design.