A Discussion on What's Shaping the Future of FemTech

Key Takeaways on Policy, FDA Oversight, Privacy, and Investment

By Traci L. Vitek, Daniel A. Cody, Benjamin M. Zegarelli

As FemTech products move from lifestyle apps toward diagnostic and clinical tools, the industry is being reshaped by changes happening at the same time in investment, federal policy, US Food and Drug Administration (FDA) oversight, and federal and state privacy laws and enforcement.

During the recent Mintz webinar, Women's Health at a Turning Point: What the Federal Policy & Regulatory Outlook Means for the FemTech Industry, ML Strategies Senior Vice President of Government Affairs Traci Vitek joined Mintz Digital Health Practice Chair Daniel Cody and Mintz Of Counsel Benjamin Zegarelli to discuss how these changes intersect and what they mean for companies across the FemTech industry.
 

Key Takeaways:

Fertility policy signals where Washington moves next

Ongoing debates surrounding fertility access, coverage, and reproductive health care are likely to influence how policymakers approach adjacent areas of women's health, including menopause, maternal health, and pelvic health solutions. While there appears to be bipartisan support for leveraging innovation and technology to address women's health challenges, significant questions remain regarding the policy and regulatory mechanisms that will ultimately be employed.

FDA regulatory considerations should be assessed early in product development

Determining whether a product qualifies as a medical device or is subject to enforcement discretion has significant implications for product design, clinical strategy, commercialization, and market access. Although some FemTech products clearly fall outside FDA's device framework, many technologies occupy regulatory gray areas or may be subject to enforcement discretion. Conducting a regulatory assessment early in the development life cycle is vital so companies can avoid costly redesigns and delays later in the commercialization process.

Wellness claims require careful positioning

FDA's evolving guidance continues to provide opportunities for certain noninvasive wellness technologies to operate outside traditional medical device requirements. However, companies seeking to rely on this pathway must ensure that product claims, labeling, user manuals, and promotional materials remain firmly within the general wellness context. Claims that imply diagnosis, treatment, or substitution for FDA-authorized products may trigger additional regulatory obligations.

Mind the HIPAA coverage gap

Many direct-to-consumer FemTech products, including fertility and menstrual tracking applications, fall outside the scope of HIPAA. As a result, regulators such as the Federal Trade Commission (FTC) and state lawmakers have increasingly focused on filling perceived privacy gaps through consumer protection and health data laws. Companies should adopt a proactive privacy strategy, including data minimization, thoughtful data retention practices, and robust safeguards for sensitive health information.

Regulatory maturity is increasingly viewed as a marker of investment readiness

Investors are gravitating toward companies with clinically validated solutions and well-developed regulatory frameworks. A lack of thoughtful consideration of FDA requirements and broader regulatory obligations can be a significant diligence concern. Companies that demonstrate regulatory preparedness, compliance infrastructure, and a clear advocacy strategy are better positioned to attract investment and scale successfully in a rapidly evolving FemTech landscape.

Looking Ahead

For FemTech companies, policy, regulatory strategy, privacy, and investment readiness are closely connected. Companies that address these issues early in their planning will be better prepared to grow as the industry continues to change.

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    Women's Health at a Turning Point: What the Federal Policy & Regulatory Outlook Means for the FemTech Industry

    Authors

    Traci L. Vitek

    Traci L. Vitek

    Senior Vice President

    Traci L. Vitek, Senior Vice President at ML Strategies in Washington, DC, advises clients on federal health care policy, legislative strategy, and executive branch engagement.
    Daniel A. Cody

    Daniel A. Cody

    Member

    Daniel A. Cody is a Member at Mintz who represents clients across the health care and life sciences sectors, including the digital health industry, providing strategic counseling and leading civil fraud and abuse investigations. His practice encompasses a broad range of complex regulatory, compliance, privacy, and transactional matters.
    Benjamin M. Zegarelli

    Benjamin M. Zegarelli

    Of Counsel

    Benjamin M. Zegarelli is Of Counsel at Mintz. He advises pharmaceutical, medical device and biotech companies on the FDA regulatory process to identify the correct regulatory pathway, assisting with FDA communications and strategy.