Daniel Tozer is a partner at London law firm Harbottle and Lewis
What do smart fabric manufacturers and retailers need to consider from a legal and regulatory perspective in relation to wearables?
Wearable technology finally seems to be capturing the attention of the consumer. Smart fabrics may eventually become part of our everyday wardrobe, with technology progressing from being strapped to the wrist/in a pocket to embedded in a person’s clothes.
Where smart fabrics are sold to consumers, there is an implied term in any business-to-consumer sale of goods contract that the goods sold will be of satisfactory quality and reasonably fit for their purpose. When a garment is sold with ‘smart’ features (for example relaying data to a smartphone), the product’s ‘purpose’ is broadened beyond use as a traditional garment and, as a result, the scope for claims by consumers that the product is not fit for such purpose is also broadened.
Retailers must also be wary of how smart fabrics are advertised. The CAP and BCAP codes, which regulate non-broadcast and broadcast advertising respectively, require that advertisements cannot mislead consumers (for example by exaggerating features of a product) and any claims made in an advert must be capable of substantiation.
If smart fabric will be used to collect the ‘personal data’ of an individual, the individual should be clearly informed how his/her personal data will be processed and his/her consent to such processing secured. Statistics data such as heart rate and perspiration levels will not, on their own, be personal data.
However, if the company in control of the individual’s data is able to identify the individual through the statistics by combining them with other data in its possession (for example a user account which details the individual’s name, email address), then the statistics are likely to be personal data as well.