A little piece of paper goes a long way to promote contact lens competition

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More than 40 million U.S. consumers benefit from contact lens competition. Demand for contact lenses has been growing over the past decade, and there are more places for consumers to shop for contact lenses and refill their prescriptions – in-person from eye-care providers, optical chains, and wholesale clubs, and on-line as well. Innovation has improved the comfort and convenience of contact lenses, and many people have switched from one-year lenses to daily disposable lenses.

Operating in the background to protect contact lens consumers’ access to competitive prices, convenience, and quality has been a federal law, the Fairness to Contact Lens Consumers Act. Under the FCLCA, the FTC adopted the Contact Lens Rule, which has been in place since 2004 and requires that consumers receive a written portable prescription at the completion of a contact lens fitting.

The crux of the Contact Lens Rule has always been a simple requirement: When a prescriber – an eye doctor – completes a patient assessment and contact lens fitting, the prescriber must provide the patient with a complete, fillable, copy of his or her prescription – automatically, and at no extra charge. The patient – a contact lens consumer – then gets to choose where to buy the lenses: if the eye doctor happens to sell contact lenses, the consumer can buy lenses on the spot if she chooses, but she always has the option to shop around for better prices or more convenient refills with the Rx in hand.

Some prescribing eye doctors routinely provided prescriptions to patients, even before the Contact Lens Rule. But some didn’t and still don’t; they refuse to release prescriptions, even when consumers ask, or charge an extra fee just to hand the prescription over. After a careful review of the Contact Lens Rule and its impact on consumers, prescribers, and the industry, the FTC is now proposing a change to make the Rule more effective.

Portable written prescriptions are key to vigorous contact lens competition. Prices for lenses vary, but without a prescription, it’s hard for consumers to shop around to see which seller best meets their needs for price, service, and convenience. And without the pressure from comparison shopping, retail sellers are less likely to compete on price, convenience, or anything else; and manufacturers, in turn, are less likely to develop the range of products that consumers want and can afford. There’s a health and safety risk to less competition too: when replacement lenses and other products are too expensive or difficult to obtain, more people tend to over-use their old lenses and solutions in ways that can lead to eye infections.

So why change the Contact Lens Rule? Based on evidence reviewed by staff, too many prescribers fail to follow the law and provide portable prescriptions. With the Notice of Proposed Rulemaking the Commission is proposing to add a requirement that prescribers obtain a simple signed acknowledgement form from patients. The form has many benefits: it reminds prescribers to release prescriptions, informs patients of their rights, reduces misunderstandings, and improves the Commission’s verification and enforcement ability. The patient will still receive the prescription automatically, but now the patient will be asked – not required – to sign a very brief paper or electronic form acknowledging receipt of the prescription. If the patient refuses to sign, the prescriber simply notes the refusal on the form. The forms are maintained for at least three years, so that the FTC can better identify where and how frequently problems occur, and can better investigate what actually happened when there are consumer complaints.

Portable prescriptions drive competition in contact lens markets, and the proposed revisions to the Contact Lens Rule will get portable prescriptions in the hands of more consumers.

Comments

Having always released a patient's contact lens prescription, I was disappointed to learn that the FTC will not, under its existing authority, seek to more-fully address unscrupulous business practices of online contact lens sellers that have been putting the health and safety of my patients at risk for more than a decade. I oppose the new FTC proposal to require that all contact lens wearing patients sign an acknowledgment of receipt of a contact lens prescription and that I keep this form on file for years. This requirement seems to be a heavy-handed step which presupposes that all doctors of optometry are not complying with federal law. It also would seem to disrupt the doctor-patient relationship by communicating to patients that they should be wary of their physician and assume that their doctor is a violator of federal law.

Patients already have the right to their prescription, and can purchase them wherever they choose. The proposed new rule imposes a burden on the prescriber, one which will make patients assume the doctor is creating a new burden on the patient to get the prescription they can already currently receive without such hurdles.

One might think the FTC is structuring this to purposefully interfere with the doctor-patient relationship in an effort to steer patients away from their doctors and to online contact lens sellers. As we saw in Arizona during the last legislative cycle, these online sellers will stop at nothing to drive a wedge between doctors and patients. They wish to disregard the health implications of wearing contact lenses and reduce contact lenses to a pure retail purchase like a carton of eggs.

The FTC says it wants competition - this is already in existence. The effect of the proposed rule will tilt the table in favor of online sellers, and favor them. Is this the goal of the FTC? If so, the rule will achieve this. Should the FTC remember part of their job is fair, level competition, they will allow the current system, which already requires contact lens prescription release to continue as is.

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