Congress Needs its Eyes Checked
Congress is at it again, trying to pass crony legislation that tips the market on contact lenses toward optometrists even greater than already exists. The powerful American Optometric Association (AOA) is trying to get the Senate to undo a Federal Trade Commission (FTC) update to the Contact Lens Rule (CLR) that guarantees optometrists release prescriptions to patients. Congressional supporters of this idea want to sneak this bill through Congress in the post-election Lame Duck session.
After the FTC passed the CLR, Senator John Boozman (R-AR), who is an optometrist, introduced S.4613, the Contact Lens Modernization Act, that will permit optometrists to post a sign in their office notifying patients of their right to their contact lens prescription rather than actually providing one. This sign serves to undermine the automatic release of the prescription. The bill also makes it harder for third party sellers to obtain a verification from the optometrist by banning so called “robocalls,” that are used by online sellers of contact lenses to verify prescriptions. The goal of this legislation is to promote more sales of contact lenses inside the optometrists’ office because they make so much money off the selling of the same product they prescribe.
The bottom line is that if this legislation passes, consumers will pay higher prices for contact lenses because they will have lost prescription portability – a hallmark of the FCLCA. This is a terrible development during a pandemic when family budgets are already stretched thin.
Optometrists enjoy a conflict of interest in their favor. The government has unwittingly granted them a monopoly to write prescriptions of medications and, in this case, contact lenses. They prescribe not only the specifications of a lens, but the brand too. Optometrists make up to half their income selling contact lenses and glasses, therefore the government needs to provide protections to consumers from the power they granted Optometrists to issue prescriptions.
This conflict of interest led to some egregious behavior over the years from optometrists who limited their patients' choice, resulting in the Fairness to Contact Lens Consumers Act (FCLCA) passed in 2004. The results have been a competitive vibrant third-party market for contact lenses. Just look at the number of stores and online sellers of prescription glasses and contact lenses to see a market that has driven down costs and provided consumer choice.
The Senate Commerce Committee may take action on this legislation in the Lame Duck session of this Congress. There are only three committee members who are cosponsors of the bill, therefore there is no need to rush this bill through Congress. This is not an issue that rises to the level of a crisis that needs to be considered with a coronavirus relief effort nor a year-end spending measure.
It was the problematic history by the optometrist industry that necessitated a change in law in the first place. The Coalition for Contact Lens Consumer Choice cited the fact that “in 1994, 32 state Attorneys General brought an MDL (multi-district litigation) alleging collusion among, the AOA, individual eye doctors and contact lens manufacturers – that they conspired to prevent the release of contact lens prescriptions to consumers, and to eliminate sales of contact lenses by pharmacies, mail order, and other alternative retailers.” In the end, “defendants settled and had to pay over $90 million in financial penalties.” The Coalition also reported that “starting in 2013, all four major contact lens manufacturers—Johnson & Johnson, Alcon, Bausch & Lomb, and Cooper Vision—began engaging in anti-competitive price fixing policies known as a Unilateral Pricing Policy (UPP), where they forced retailers to sell lenses at higher prices” or risk being cut off. Free market advocates are needed to protect consumers from these actions that seek to limit choice and hike prices on the consumers of contact lenses.
Conservative, Senators Ted Cruz (R-TX), Mike Lee (R-UT) and Ron Johnson (R-WI) are strong advocates for open markets and are also members of the Senate Commerce Committee. They understand that when an optometrist is granted, by government, the power to prescribe a contact lens or a pair of glasses, consumers are benefitted when they have the freedom to seek less expensive alternatives. Using the power of government to hide information from consumers will lead to distortions in the market that benefit the membership of the powerful American Optometric Association and its members and hurt the consumer.
Cronyism has no place in politics and Congress should not pass this legislation during the Lame Duck session.
Bob Haueter is former Deputy Chief of Staff to the former Chairman of the House Armed Services Committee.
