Dear Chairman Ferguson,
The Coalition for Contact Lens Consumer Choice is a bipartisan coalition representing 45 million contact lens consumers and taxpayers in this country who strongly support the recently updated Federal Trade Commission (FTC) Contact Lens Rule (CLR) because it ensures competition in the contact lens marketplace, lower prices for consumers, and reduced costs for taxpayers in government-funded health programs. Our members include the Center for Freedom and Prosperity, Consumer Action, Costco Wholesale, Lens.com, National Taxpayers Union, the National Hispanic Health Foundation, Progressive Policy Institute, R Street Institute, 1-800 Contacts, and the Taxpayers Protection Alliance.
As a Coalition that has spent years working toward more competition in the marketplace for contact lens consumers and taxpayers, we applaud your recent call for public comments on efforts the FTC should undertake to reduce anti-competitive regulatory barriers. Such barriers exist in many areas of the economy. We were therefore surprised to learn that the American Optometric Association (AOA) has filed comments calling for repeal of the carefully crafted and pro-competitive amendments to the FTC Contact Lens and Eyeglass Rules.
The Fairness to Contact Lens Consumer Act (FCLCA) was enacted in 2004 with strong bipartisan support to promote competition and consumer choice in a marketplace that was saddled with state laws that protected optometrists’ ability to sell the products they prescribed as well as other burdensome regulations. Since the FCLCA was enacted, the contact lens marketplace has been positively transformed. Now, consumers nationwide have the right to shop for contact lenses wherever and whenever they choose — at their optometrist’s office, local big box store, neighborhood pharmacy, online vendors, over the phone, or through an app. This array of options also yields savings for consumers and for taxpayers, who help underwrite government employee insurance and other programs providing some form of vision care benefit. Consumers have a wide variety of choices when buying contact lenses, but they need their prescription to take advantage of this competitive marketplace by comparison shopping.
Yet, since the day the FCLCA was signed into law more than two decades ago and the FTC, at Congressional direction, promulgated the CLR, there have been continual attempts to weaken the law.
The AOA’s May 12 letter to the FTC primarily targets the 2020 amendments to the Contact Lens Rule and the 2024 amendments to the Eyeglass Rule, specifically the requirement for eye care practitioners to create a record confirming that a patient has been provided with a copy of their prescription, and to retain this documentation for three years. The AOA characterizes this as an “unnecessary regulatory burden” and “costly paperwork.” While several members of this coalition have previously noted to FTC that the concerns of any businesses about regulatory burdens must be taken seriously, we believe that AOA’s perspective should be put in context. The impact of these vital pro-competitive prescriber recordkeeping measures is, on net, positive for patients, the health care sector, and the economy as a whole.1
We call on the FTC to reject the AOA’s request to eliminate the 2020 amendments to the Contact Lens Rule and the 2024 amendments to the Eyeglass Rule. These provisions are crucial safeguards that uphold consumer rights, foster a competitive marketplace, and ensure the integrity of the prescription release process. Eliminating them would be a significant step backward for consumer choice and market competition.
After being presented with compelling empirical data and evidence that demonstrated significant problems with practitioners in automatically providing patients with copies of their prescriptions, the FTC added prescriber recordkeeping amendments to the updated rules to ensure that prescribers have an incentive to automatically release prescriptions.2 This process involved many years of hearings, deliberations, and direct input from both consumer advocates and the professionals serving them.
The Commission also adjusted its initial proposal to ease the burden on eye care practitioners by revising the consumer acknowledgement requirement to allow multiple ways for the prescriber to show that they provided the patient with the prescription. The prescriber can choose to have the patient acknowledge receipt of the prescription by signing a separate statement, signing a copy of the prescription itself, or signing a copy of the payment receipt. Alternatively, the prescriber may demonstrate that the patient was provided a digital copy of the prescription through an online portal, electronic mail, or text message. Many prescribers already have or can easily implement an electronic health record system that provides the capability to generate a digital copy of the prescription. The final rule also exempts prescribers who do not sell what they prescribe.
The fact that burdens on the prescribers have been thoughtfully addressed is further demonstrated by the AOA Contact Lens Compliance Tool Kit, which includes an example of a multi-part contact lens prescription form sold to optometrists by the AOA that is simple, low-cost, and easy to use. A sample of the form is attached.
It remains concerning that more than 20 years after the bipartisan FCLCA was signed into law and the FTC issued the CLR, not all consumers are fully benefiting from the law. The pro-competitive recordkeeping amendments to both the CLR and Eyeglass Rule are narrowly tailored tools to ensure that consumers benefit from competition at the best combination of value and price, to minimize the compliance costs to providers.
Now more than ever, consumers need to be able to access and utilize their contact lens prescriptions, and they require more options and choices for purchasing lenses, not fewer. Taxpayers, who help to fund government employee insurance and public health programs, also deserve the savings that contact lens choice can deliver.
The Coalition for Contact Lens Consumer Choice remains committed to assisting the Commission in its mission to protect consumers and promote competition. We stand ready to provide further data and insights that underscore the vital role these rules play in maintaining a healthy and competitive contact lens and eyeglass market for all Americans.
Thank you for your time and consideration of these critical issues.
Sincerely,
The Coalition for Contact Lens Consumer Choice
1) See, for example, the comments of National Taxpayers Union to FTC on the Contact Lens Rule Update, Re: Contact Lens Rule, Project No. R511995,RIN: 3084-AB36, July 30, 2019, at https://www.regulations.gov/comment/FTC-2019-0041-0149 and the Eyeglass Rule Update, Re: Eyeglass Rule, Project No. R511996, RIN: 3084-AB37, March 6, 2023, at https://www.regulations.gov/comment/FTC-2023-0001-0028
2) The AoA’s May 12 comment to FTC cites a small number of consumer complaints about prescription release as evidence that the amendments are unnecessary and should be repealed. Yet, this mistakenly assumes that consumers were well informed of their rights under FCLA, the CLR, and the Eyeglass Rule to obtain their prescriptions. A poll from Consumer Action, a member of the Coalition for Contact Lens Consumer Choice, vividly demonstrated that this is not the case, and that a majority of patients were unaware of their rights in the first place. See the poll at https://www.consumer-action.org/alerts/articles/protect_contact_lens_consumer_rights.