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One of the few godsends in this pandemic has been the fact that we can take care of a lot of our personal business online—from ordering food to meeting with health-care providers. But if the eye-doctor lobby gets its way in Congress, many Americans will be forced to make otherwise unnecessary trips to an optometrist’s office whenever they need to refill their contact lens prescriptions. This is just the latest skirmish in a decades-long rearguard action that optometrists have been fighting to protect their lucrative industry from disruption. Lawmakers should see through the effort and side with consumers.
The optometrists’ immediate goal is to water down a newly enacted rule that gives people the right to shop around for contact lenses. The Federal Trade Commission unanimously approved this Contact Lens Rule in June—with bipartisan support from 27 state attorneys general—after studying the issue for five years, with numerous hearings and voluminous input along the way. (Disclosure: 1-800-Contacts provides financial support to my organization.)
The FTC’s final determination stemmed from the fact that, unlike medical doctors, who sell only their services (examining, diagnosing, and treating patients), optometrists sell both their services (eye exams) and the products they prescribe (contact lenses). It is against the law for consumers to buy lenses without a prescription, so the profession has powerful leverage to steer consumers away from buying their lenses from lower-cost providers, such as online contact lens companies or big-box retailers—even though the evidence is clear that giving consumers choice in their lens purchases is safe and saves them time and money.
Over the years, especially since the advent of e-commerce in the late 1990s, the optometry industry has done everything it can to limit consumers’ choice so it can make more money. For example, it pressured lens manufacturers into distributing only to licensed optometrists, not to alternative providers, by making it clear that optometrists would not prescribe a manufacturers’ lenses—even if they were right for patients—if the manufacturer also sold through third-party channels. A group of 32 state attorneys general filed suit against the American Optometric Association in 1994 to stop this practice, and in 2001 the AOA reluctantly agreed.
But optometrists were simultaneously pressuring state legislatures to block legislation that would require them to give prescriptions for patients to fill wherever they choose. Because of this pressure campaign, only 22 states were requiring optometrists to hand over prescriptions to patients as of 2002. Congress rightfully stepped in the next year, passing the Fairness to Contact Lens Consumers Act (FCLCA), which, among other things, gave patients the same rights when it comes to contact lenses that they have had with eyeglasses since 1979—the freedom to fill prescriptions anywhere they choose.
But after the FCLCA made it easier for consumers to buy lenses through other distribution channels, optometrists fought back yet again with further restrictive practices, this time by prescribing “doctor only” lenses—limited-distribution brands of lenses available only through eye-care professionals. This practice once again drew the ire of state attorneys general, 36 of whom banded together in 2006 to urge Congress to outlaw it.
The saga goes on and on. Over the last decade or so, the default way optometrists have kept their patients locked in has been to simply ignore their statutory obligation to give patients their prescriptions. For example, a 2008 article from Contact Lens Spectrum reported that their reader survey of optometrists “indicates that despite this federal legislation [FCLCA] only half of the respondents replied ‘yes to every patient’ when asked if they release contact lens prescriptions.”
To address this and other challenges, the new FTC rule lays out how contact lens prescriptions must be released, with obligations on both prescribers and other sellers. The rule includes stronger protections to make sure that consumers know they have a right to their prescription and a right to purchase their lenses from any licensed seller. For example, among other requirements, it requires sellers to request that a patient sign a prescriber-retained copy of the prescription that contains a statement confirming the patient has received it; to provide the patient with a digital copy of the prescription; and to retain evidence that the patient received it.
Prescribers must maintain proof that they have satisfied the confirmation of prescription release requirement for at least three years. Without this, there is no way for regulators to know if the industry is complying with the law. The rule also includes several new requirements for sellers, including recording entire calls with customers and preserving the recordings.
No surprise, optometrists are lobbying the Senate and House Commerce Committees to weaken the FTC rule. Senator Boozman (R-AK) recently introduced legislation to modify the Fairness to Contact Lens Consumers Act that would roll back a number of key FTC rules, including banning automated calls prescription verification (raising costs for consumers) and limiting the ability of the FTC to ensure that optometrists actually are complying with the law and providing patients with copies of their prescription.
Congress should respect the FTC’s decision and not be seduced by these rent seekers’ arguments. Especially in a time of pandemic, consumers’ interests should come first.