16 CFR Part 315; Agency Information Collection Activities: Review; Comment Request; Contact Lens Rule: FTC Project No. R511995 #00559

Submission Number:
00559
Commenter:
Eliot Milsky
Organization:
Comprehensive Eye Care Professionals
State:
New Jersey
Initiative Name:
16 CFR Part 315; Agency Information Collection Activities: Review; Comment Request; Contact Lens Rule: FTC Project No. R511995
Thank you for inviting comments on how existing rules are functioning and what can be done to improve them. I am a member of the New Jersey Society of Optometric Physicians, and serve on its board of directors. We think of members of the public, who might otherwise be called "contact lens consumers" in the retailing context, as our patients, patients that are using a regulated prescription medical device. I hope that my comments will be read in that light. Below is a condensed version of my recommendations regarding the Contact Lens Rule. An extended version, with supporting information and discussion, is included in the attachment to this comment. - The Commission may not be aware that a large of a proportion of internet contact lens (CL) sales take place as a result of the "eight (8) business hours" exception to the "direct communication" requirement for prescription verification, without the retailer actually seeing a prescription (Rx) and without a successful verification attempt. I would urge the FTC to collect information from the online contact lens industry regarding the amount of CL sales that take place due to this loophole, both the actual number of transactions and the fraction of total sales. - There is a disturbingly frequent pattern of eye doctors receiving verification requests from online CL retailers with names of people that have never been their patients. If the retailer has not received an image of the actual Rx (which smart phones should facilitate significantly), they should at least obtain some confirmation that the customer really is a patient of the prescriber that is being contacted for verification. Those patients that cannot provide an Rx, or any documentation at all of having had an exam, are of course also likely to be the least compliant with proper contact lens wear, hygiene and care, and are in the greatest danger of serious medical complications, such as infectious corneal ulcers, a condition often caused by poor contact lens care practices which can be vision-threatening. - Another common problem is, for example, an Rx for a year's supply of CLs getting filled 1 month before it expires, 11 months after any fitting; or for example, an Rx for a year's supply of CLs getting filled twice by two different retailers. There should be pro-rating in the filling of a CL Rx based on how much usage is actually remaining before the expiration date, as well as based on either the prescriber or retailer being aware of previous fills of the Rx. In other words, if CLs are ordered 6 months before the Rx's expiration, then the retailer should be authorized to only dispense a 6-month supply; or if during the verification process, the retailer is informed by the prescriber that the patient has previously been dispensed 9 months' worth of CLs, then the retailer should be authorized to only dispense a 3-month supply. - In order to allow eye doctors and the FTC to be able to track in detail what happens to internet CL orders, I would urge that online retailers be required to have a follow-up communication with the prescriber, which would state whether the transaction was cancelled or completed, and if so, what exactly was shipped and exactly when. A simple shipping tracking number, if the retailer were required to provide it to the doctor, would document whether the lenses were actually sold before any "verification" took place. - Finally, to make it a little more manageable for a busy eye care practice to meet the "eight (8) business hours" deadline to correct any errors in the verification request before the order is shipped and it's too late, I would urge the Commission to make it "eight (8) business hours or twenty-four (24) clock hours, whichever is later". The FCLCA provides the flexibility to do make that modification, in referring to "8 business hours, or a similar time as defined by the [FTC]". This would also address the fact that many practices do not keep the "9 to 5" hours assumed by the Rule.