If You Wear Contact Lenses, This Lawsuit Could Affect You.

We do not discuss the needs of healthcare consumers as much as we should. The COVID-19 pandemic has had a profound impact on how consumers access healthcare and healthcare products.

Over the course of 2020, we have witnessed the unprecedented success of Operation Warp Speed (getting COVID-19 vaccines to market in less than a year) – a genuine sign of medical progress. What’s more, during the COVID-19 pandemic, we have seen a remarkable, yet still emerging, expansion of digital-health, telehealth, and how health products and medical devices are delivered. The extraordinary utilization of telehealth and digital-health technologies from virtual doctor visits to the use of healthcare apps is a positive signal that we’ve turned a ‘tech corner’ when it comes to improving health and access to cures, treatments, devices, and therapies.

RealClearHealth has marked the changing medical/health landscape – and we have been encouraged. However, many challenges remain in the healthcare space, including questions over costs, pricing, transparency, and access. Patients and healthcare consumers suffered – and suffer still – through the pandemic – a year of missed preventive medical care and economic hardship. As the New York Times recently observed, “the coronavirus pandemic has yet to end, but we are already beginning to feel the aftershocks.”

What’s needed now is for the entire healthcare industry to invest more in patient outreach, communication, education, and access. Healthcare must be innovative and transparent – in other words we need a consumer-oriented and consumer-friendly healthcare sector. Healthcare providers and manufacturers must prioritize access to care and access to medical devices – putting patients and consumers first will set the stage for better health outcomes, more innovation, and greater profits. Yes, profits. Healthy revenue streams can lead to new cures, devices, products, and therapies.

However, some in the healthcare sector threaten medical progress by engaging in corporatism – i.e., bad corporate actors who use the coercive powers of government and the legal system to gain a competitive advantage they could not earn in the market. Such cronyism comes in the form of regulations or laws that hinder competitors, lawsuits that restrict entry into markets (or destroy markets), as well as government-sponsored cartels that fix prices and grant monopolies. This anti-competitive behavior is revealed, for instance, when bad corporate actors leverage the limitations on distribution channels to crush competitors who challenge the pricing and delivery systems locked in the past. Long past distribution gimmicks and advantages have no place in a pro-consumer market.

For years, contact lens manufacturers –including Alcon, and other large manufacturers, have from time to time attempted to protect their pricing and markets from Internet related competition that threatens their pricing model. Alcon, for example, is a powerful company, “a global leader in eye care.” Consumer organizations have warned that manufacturers have been “restricting consumer choice in an industry that has long been accused of anticompetitive practices.”

A long-lived crony tactic is to engage in frivolous lawsuits as a business strategy – a scheme to drive a competitor out of the market. We have seen this through the years in the medical device space, specifically, contact lenses. Litigation over medical devices, like contact lenses, exacts a staggering cost on an increasingly important part of the U.S. economy. Profits are critical to medical progress, however a singular focus on profits that puts patient access in jeopardy threatens consumers and limits access.

With retail stores operating at reduced capacity, restaurants closed, layoffs in the hospitality industry, and sluggish job growth, the economy continues to suffer – it has been a grueling twelve months. The economy gained just 49,000 jobs in January as the recovery sputters amid pressure from the virus. Indeed, the economy has nearly 10 million fewer jobs than it did at this time in 2020, recovering less than half of what was lost during the early days of the COVID crisis. At this rate, it would take more than 16 years to regain all those jobs.

For a post-COVID America to thrive and fully recover, consumers need fair, competitive prices. We need more choices not fewer. Healthcare services and devices, like contact lenses, can be costly.

Alcon filed a lawsuit against contact lens discounters who sell to consumers at lower prices. Alcon’s central claim in the suit is an alleged trademark infringement of a trivial packaging issue. However, the real concern for Alcon is shutting off the competition. The costs imposed on competitors from such litigation are a real threat intended to end price discounts enjoyed by consumers who shop for their contact lenses outside of Alcon’s distribution network. Ludicrous lawsuits focused on meaningless trivialities like packaging are meant to drive discounters out of the market because the costs of defending such crony suits can be enormous. Consumers want the best price for any commodity, including contact lenses.  Ultimately, Alcon’s lawsuit hurts consumers.

COVID times are the wrong time to limit consumer choices – not in the healthcare sector or any economic sector. In the contact lens market, consumers need the right product, at the right time, at the right cost. Competition is the key. Let’s not price-out middle class and working families from proper access to competitively priced contact lenses.

As we recover from the COVID crisis, healthcare reform must include a conversation on how predatory price fixing schemes and related aggressive lawsuits exact a toll on our economy and health. How these issues are resolved could affect the purchasing options of millions of Americans: “nearly 39 million consumers in the United States wear contact lenses, spending $4.2 billion annually, according to 1-800 Contacts”.

Alcon is a Fort Worth, Texas based company. The people of Texas need a break right now, not frivolous lawsuits aimed at eliminating consumer choice. After twelve months of the pandemic, we all need a break. Parents worrying about getting their kids back to school shouldn’t have to worry whether they can afford contact lenses.

Jerry Rogers is the editor of RealClearHealth and the host of the 'Jerry Rogers Show' on WBAL NewsRadio. Follow him on Twitter @JerryRogersShow.