Can the FTC Write an Rx for the Contact Lens Market, or Is Legislation an Aye for an Eye?

Can the FTC Write an Rx for the Contact Lens Market, or Is Legislation an Aye for an Eye?
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A patient walks into an optometrist’s office for an eye exam. He walks out an hour later with a box of contact lenses, conveniently purchased in-office with the eye-care provider's encouragement.

If the patient is typical, he probably doesn’t stop to wonder why he wasn't provided a copy of his prescription. In fact, he's likely wholly ignorant of the significantly cheaper lens options available online. And he's almost certainly oblivious to the fact that his friendly optometrist just violated the law.

To prevent this kind of scenario and better protect consumer choice, the Federal Trade Commission is proposing changes to rules governing the process of prescribing contact lenses. The FTC’s renewed involvement in lens wear is the latest move in a battle over affordable contacts, one that has seen the medical lobby fight to preserve their moribund industry's profits and to resist the internet-driven expansion of the free market.

The entrance of online retailers and discount warehouses to the eyewear market has offered consumers less expensive alternatives to purchasing directly from a prescriber. Over time, declining profit margins and market share have prompted eye-care providers to respond by leveraging the one important lever over which they still have control: the prescription-verification process. Patients are more likely to purchase lenses in-office (usually at a higher price) when they aren't provided copies of their prescriptions. And even when patients do decide to shop around, it can be difficult for outside retailers to verify a prescription's details.

Though the FTC promulgated its Contact Lens Rule back in 2003—requiring that patients be issued copies of their prescriptions—a growing number of prescribers have chosen simply to ignore the requirement. Just this year, the FTC released 55 warning letters regarding potential violations. More recently, the commission moved to reassert its authority with a proposal to change the verification process set down in the original rule. 

The proposed changes, unveiled Nov. 10, would discourage prescribers from engaging in deliberate, profit-motivated noncompliance, while working to increase consumer choice and maintain high standards for patient safety. They require eye-care providers to collect signatures from patients verifying they received a copy of their prescription. The rules also allow for prescription verification through a number of other means, including telephone, fax, email and online. 

Unfortunately, patients may never get a chance to benefit from these changes. Physicians and other providers are pressuring Congress to pass the Contact Lens Consumer Protection Act of 2016, introduced earlier this year as S. 2777 in the Senate and H.R. 6157, in the House. If passed, the bill would allow prescribers to block verification requests by making it easier to dispute a prescription’s accuracy. Given the history, this change would have the effect of empowering eye-care providers to leverage this part of the process at the expense of customers, who could lose access to the prescription they paid for when they try to take it to other providers.

For its part, the FTC has taken note of recent misleading health claims made by the medical lobby—particularly the American Optometric Association—in both legislative and regulatory comments. The agency directly disputes these claims in the footnotes of their recent proposal for amendments to the Contact Lens Rule. The FTC often stands in the way of consumer choice, in everything from new technologies to breakfast cereals. But the agency’s involvement in the lens-wear market marks an encouraging sign of support for consumers everywhere.

Those who care about an open contact lens market can submit comments on the FTC’s proposal before the Jan. 30 deadline. After more than a decade of conflict between prescribers and sellers of contact lenses, the voice of the consumer might be the best hope for change.


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