Congress Should Side With Consumers on Contact Lenses, Not the Optometry Lobby
In 2002, Congress passed the Fairness to Contact Lens Consumers Act (FCLCA), making it easier for contact lens users to purchase their contact lenses from any outlet, provided they had a prescription from an optometrist. For over 20 years, the optometry lobby has fought this bill at every step—in state legislatures and in Congress—because they want to regain their monopoly on lens sales. And now they are at it again.
Even the American Optometric Association, the trade association of optometrists, knows it cannot get FCLCA repealed—too many Americans rely on it to get lenses more cheaply and conveniently. So instead, they are trying to weaken it with innocuous-sounding provisions like limiting automated calls by third-party sellers to verify prescriptions. The Contact Lens Prescription Verification Modernization Act (H.R. 2748), introduced by Reps. Michael Burgess (R-TX) and Lisa Blunt Rochester (D-DE), attempts to do that.
The law requires contact lens prescriptions to come from optometrists. If a patient then decides to have their prescription filled by someone else, FTC rules dictate that the retailer must call the prescribing optometrist and wait to receive a call back for a designated period of time before filling the prescription. Optometrists now want to add friction to that process. Instead of allowing competing retailers to fulfill their requirement with automated calls, the optometrists want to require them to use faxes, emails, or live calls, thereby watering down a recently enacted FTC rule that gives people the right to shop around for contact lenses. The FTC unanimously approved this Contact Lens Rule in 2020—with bipartisan support from 27 state attorneys general—after studying the issue for five years, with numerous hearings and voluminous input along the way.
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-priced providers, such as online contact lens companies or major 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’ choices. 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 manufacturer’s 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. The optometrists used this ruse to lock in their patients when it came time for lens purchases. 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 laid 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.
No surprise, optometrists are lobbying to weaken the FTC rule, particularly by making it harder and more expensive for third-party lens sellers to get approval for selling lenses. Congress should respect the FTC’s decision and not be seduced by these rent seekers’ arguments. Especially in a time of high inflation, consumers’ interests should come first.
