RE: Contact Lens Rule Review, 16 CFR part 315, Project No. R511995
Consumer Action1, while we appreciate the hard work of the Federal Trade Commission and staff on updating the Contact Lens Rule, is disappointed by how long this process is taking. Consumers have the right to get a copy of their contact lens prescriptions automatically, without asking, following an eye exam, and to buy the lenses at the retailer of their choice. That is clear. But, based on a survey2 Consumer Action did in late 2016, consumers are not getting their prescriptions automatically, which to us means the existing law is not being followed by providers. Our survey also showed a fundamental lack of understanding by consumers about their automatic right to receive a copy of their prescription. The more time the staff has to spend writing an updated rule, the less time it has to educate consumers and enforce the rule.
Even more distressing is the finger pointing by optometrists and contact lens sellers. One would think that the FTC updates would be welcomed, because they have been carefully crafted to address the complaints of both sides. The automated call verification system appears to be working in the majority of cases so we agree with the FTC that it’s not necessary to prohibit this method of verifying prescriptions. If providers are concerned about consumers being provisioned with the wrong contact lenses based on outdated prescriptions, they should design more responsive systems for handling the requests, which from comments, seem far from burdensome. We agree with the FTC that there is a system in place that allows the prescriber to let the third-party seller know the reason (if any) that a verification request is invalid, and prescribers can invoke invalidity within the allowable time frame and avoid the complaint that consumers will be allowed to buy the wrong contact lenses.
We find the argument that the passive verification system allows cheating and doctored prescriptions to be completely anecdotal. It just doesn’t seem to us that sellers with reputations to protect would play this zero-sum game. And those that do would be breaking the law, and would be subject to enforcement.
That said, we are submitting these short comments about the current SNPRM.
Consumer Action is glad to see that the newly updated proposal maintains the requirement that prescribers must provide a way for patients to affirmatively acknowledge that they got a copy of their prescription. This is crucial because some prescribers continue to break the law and rely on consumers’ lack of knowledge about their rights. Here we’d like to point out that signs advising consumers of their rights, do not appear to have a strong influence on consumers’ knowledge in this area, but we believe that the signage requirement should be preserved nonetheless.
We agree with the FTC proposal that technology—especially secure patient portals— should be an option where possible to make it easier for many patients to get their prescription online, access it on demand, or store an electronic copy that they can easily submit to online sellers if they desire. Simply having access to a portal, however, should not excuse eye exam providers from presenting patients with an automatic paper copy of their prescription following the exam. We see portals as more of a “belt and suspenders” approach rather than an alternative. More pointedly, providers should not provide a digital copy in lieu of a paper copy even if (or when) the patient gives verifiable affirmative consent.
As to portal design, we would hope that some standardization would emerge in the industry—perhaps a universal, interoperable software option—so that no matter where consumers get their eye exams, they have access to the same (or closely similar) portal. We would welcome guidance from the FTC preventing providers from designing a system that might coerce subscribers into purchasing contact lenses from the provider or confusing them to the degree that they give up their attempts to download their prescription in order to purchase lenses from vendor of their choice.
Consumer Action supports the FTC’s effort to clarify that consumers are entitled to extra copies of their prescription when they need them.
While there may be valid medical reasons that some consumers need specific contact lens brands, we have some concerns that the proposal would de-legitimize “generic brands” that might serve some consumers and their families just as well as the brand prescribed. This appears to reinforce an anti-consumer regime in which the eye exam provider may favor—and prescribe—certain brands for reasons other than the health of their patients.
As we’ve noted in previous comments and at the workshop held by the FTC, we do not see a particular burden on providers to obtain, document and retain a consumer’s affirmative receipt of their contact lens prescription. Similarly, we believe that consent to receive an electronic copy—if that ends up in the final rule—should be retained for whatever period that that consumer’s state law requires for a valid prescription. We see no reason to require that these records be kept on paper in filing cabinets at the provider’s office, if they can be digitalized and time-stamped. The price of storing records in the “cloud” had fallen over time insomuch that this storage doesn’t present any particular burden in our view, and such retention is a cost of doing business as we see it.
In fact, providers should welcome this recordkeeping, because it is a way to prove that they are following the law if they are challenged.
Thank you for the invaluable work you do on behalf of consumers!
Director of National Priorities