Federal Trade Commission
Office of the Secretary Constitution Center
400 7th Street, SW
Fifth Floor, Suite 5610 (Annex C) Washington, DC 20580
Re: Comments of 1-800 CONTACTS, Inc. Contact Lens Rule, 16 CFR part 315, Project No. R511995
1-800 CONTACTS, Inc. (“1-800”) respectfully submits these comments in response to the Federal Trade Commission’s (“Commission”) request for comments on proposed amendments to the Contact Lens Rule, (“CLR” or “Rule”)1 and other issues raised by the Agency’s Notice of Proposed Rulemaking (“NPRM”).2 These comments build on the evidence and remarks that 1-800 submitted on October 26, 2015 in response to the Commission’s initial request for comments on its ten-year review of the CLR.3
Established in 1995, 1-800 is a recognized innovator in the retail distribution of contact lenses. 1-800 began as a contact lens retailer taking orders placed through its easy-to-remember toll-free number. 1-800 built a reputation for providing customers with excellent service and competitive prices. Today, 1-800 offers its customers the convenience of ordering lenses 24/7 from any location through its website, smartphone application, and toll-free number.
As the largest seller of contact lenses in the United States, 1-800 has significant experience with the Fairness to Contact Lens Consumers Act (“FCLCA” or “Act”) and CLR. Since 2004, 1-800 has filled over 48 million orders; no organization has more experience with the history or day-to-day operation of the FCLCA and CLR.
1-800 appreciates the opportunity to comment on the NPRM. 1-800 supports the Commission’s conclusion that amendments to bolster prescription portability are necessary to achieve the goals of the FCLCA to advance competition and consumer choice in the contact lens marketplace. 1-800 urges the Commission to adopt the proposed amendment to require prescribers to obtain a patient’s signed acknowledgment of prescription release and to retain a record of the acknowledgment for at least three years, to be made available to the Commission for inspection upon request. For the small percentage of cases where a contact lens fitting is completed
through some means of communication outside the prescriber’s office (such as by phone call), the prescriber is currently required to release the prescription to the patient when the fitting is completed, and the proposed acknowledgment form could be provided in the same manner. When the fitting is completed through a remote communication, 1-800 recommends that the Commission permit prescribers to provide both the proposed acknowledgment form and the prescription to the patient by digital images sent via email or text, or, if necessary, by facsimile or mail. The prescriber may satisfy the recordkeeping requirements of the proposed amendment by simply noting the form of the prescription transmission (email, text, facsimile, or mail) on the acknowledgement form, signing the acknowledgement form, maintaining the form, and retaining proof of that transmission. Prescribers should not be permitted to sell contact lenses to patients before providing them with a prescription and the proposed acknowledgment form.
1-800 agrees with the Commission that the FCLCA requires prescribers to provide duplicate copies of prescriptions to patients and to their designated agents upon request and urges the Commission to impose a reasonable time frame of five business days for prescribers to respond to requests from designated agents.
Regarding the Commission’s initial determination that a patient or prescriber may present a prescription to a seller directly, by facsimile, or by use of a patient portal, 1-800 is concerned that privacy restrictions will prevent sellers from accessing a patient’s portal account, and there is no established standard for communication between patient portals and sellers. 1-800 encourages the development of such capabilities in patient portals, but without an industry standard for communication with portals, it will be difficult for sellers to establish efficient internal procedures to collect records from thousands of prescribers using different software and platforms. 1-800 thus requests that to the extent prescribers use portals to provide sellers with prescriptions, the portal should have the ability to send the prescription to the seller directly by email, text, or facsimile, and a seller should not be required to develop direct communication links to the portal.
1-800 encourages patient access to medical records through portals, as well as prescriber use of portals to send copies of prescriptions to sellers. However, 1-800 recommends against permitting prescribers to meet their obligation to automatically release prescriptions to patients by simply posting prescriptions to a portal. Posting a prescription may provide a patient with access to the prescription, but access is not automatic. Survey evidence shows that while use of patient portals is growing, adoption and use are still very limited. Only 30% of patients were offered access to a patient portal at their last eye exam, and just 29% of patients who are provided with access to a patient portal have used the service. Moreover, patient portals do not necessarily have printing, email, facsimile, or texting capabilities. Having a patient sign an acknowledgement form after receiving a prescription will increase consumers’ understanding of their rights, increase prescription portability, and provide consumers with the ability to immediately use a prescription, unrestricted by the capabilities of the portals that are adopted by their prescribers. Initial release solely to a portal would undercut the power of the proposed signed acknowledgement and recordkeeping amendment to enhance enforcement and would provide prescribers with an easy way to evade their obligations and frustrate the intent of the Rule.
1-800 supports the Commission’s decision to reject recommendations to impose additional hurdles on the verification process or restrictions on the quantity of lenses consumers can purchase based on pretextual health and safety claims. We also support the Commission’s continued endorsement of automated phone systems as a lawful method for sellers to transmit verification requests to prescribers. Our detailed comments and supporting evidence follow.