1-800-CONTACTS bill tabled in Texas legislature

Issue: June 2001

ByBob Kronemyer

AUSTIN, Texas — It appears that 1-800-CONTACTS has lost the fight in the Texas House of Representatives to pass legislation that would make it easier for consumers to purchase contact lenses through the Utah-based dispenser. On May 10, the bill’s three sponsors pulled it from the House of Representatives, and a companion bill seems to have stalled in the Senate.

The pending bills had faced doom as the legislature rushed to complete more important matters before adjourning at the end of May. The next legislature session does not begin again until January 2003 (the Texas legislature meets only every other year).

The House bill, which was sponsored by Public Health Committee Chair Patricia Gray, D-Galveston; Rep. Glenn Maxey, D-Austin; and Rep. Jaime Capelo, D-Corpus Christi, would have required practitioners to release a contact lens prescription at the time of the exam. The bill also provided a defense to a contact lens distributor’s actions if it broke the law and the doctor had not cooperated in verifying a prescription a timely fashion.

Laurie L. Sorrenson, OD, legislative chair for the Texas Optometric Association (TOA), told Primary Care Optometry News: “We basically came to a compromise, where the Texas Optometric Association wrote a letter to the Texas Optometry Board asking the board to look at the rules concerning the contact lens prescription release act to make sure it complies with the spirit and intent of the 1997 contact lens law.”

Dr. Sorrenson, a former TOA president in private group practice in Austin, had been optimistic that legislation would not pass. “It was going to be a close vote, but we thought we had the votes and we were ready to stand up and fight for it,” she said.

“A scheduled Senate hearing on April 9 was cancelled because the sponsor objected to the tactics of 1-800-CONTACTS,” said Bj Avery, a legislative director at the TOA in Austin. The news media reported that about 100 consumers would have been flown from different towns in Texas to Austin in 1-800-CONTACT’s own private jet. Then, after testifying at the committee hearing, attendees would have lunched with the chief executive officer of the company.

Concerns about legislation

But practitioners were far more concerned about legislation that might result in contact lens ordering from a non-verified prescription, less follow-up care and increased record keeping for the originating doctor.

The TOA “worked very, very hard and diligently in 1997 to come up with a good contact-lens release bill and law that protects both consumers and doctors,” Ms. Avery said. In fact, “as an association, we have traveled all over the state informing and educating our doctors that the intent of the law is to release contact lens prescriptions.” However, “there have been numerous instances where the patient did not request that a distributor fax the doctor for a prescription,” she said. “The patient had simply contacted the company for a price check or general information.”

Effects on ophthalmology

Any changes in current Texas law would have affected ophthalmologists as well. “We’ve received several letters from ophthalmologists across the state who oppose any changes in the law,” Ms. Avery said. Furthermore, to the detriment of its own public relations campaign, 1-800-CONTACTS “has targeted optometrists, while erroneously stating in its ads and Web site that ophthalmology does not even sell contact lenses. This statement is blatantly false,” Ms. Avery said.

Mike Duncan, executive director of the Texas Ophthalmological Association in Austin, said his organization did not reach a consensus on the legislation. “1-800-CONTACTS and the bill’s sponsor certainly took a lot of our concerns into account” when drafting more recent versions, Mr. Duncan said. “The original drafting of the bill would have mandated a minimum 2-year prescription period and would have allowed for an unlimited number of contact lenses to be dispensed within the prescription period. These provisions no longer exist.” In essence, “we want to protect both consumer choice and consumer health,” Mr. Duncan said.

Immunity

Dr. Sorrenson was particularly disturbed by legislation that could have “basically provided a company a defense against any action brought by an agency or a lawsuit for breaking the law in instances where that company did not receive cooperation from a doctor. In other words, if a company such as 1-800-CONTACTS tried to verify a prescription and did not hear back from the doctor — perhaps the fax machine wasn’t operating properly — this would be a defense in court for that company to release a contact lens without a prescription. A contact lens should not be dispensed without a contact lens prescription,” Dr. Sorrenson said.

The proposed legislation also did not permit a doctor to require a patient follow-up visit unless there was an ocular health reason. “To the layperson, this may sound reasonable, but the majority of follow-up visits we require on contact lens patients involve fitting and optical characteristics vs. ocular health reasons,” Dr. Sorrenson said. In essence, “you would be trying to micromanage medical care from the legislature instead of leaving it in the doctor’s and patient’s hands.”

Dr. Sorrenson further noted that any cost savings to the consumer from purchasing from a dispenser vs. a health care professional “is extremely minor. To state that one will save 50% is a fabrication,” she said. Overall, “90% of disposable contacts sold are priced within $3 to $5 of each other, according to a TOA survey.”

“Voices heard”

1-800-CONTACTS, a publicly traded company (NASDAQ: CTAC), declined repeated attempts to be interviewed for this story. However, in an article that appeared earlier this year in the Dallas Morning News, there was one comment from Kevin McCallum, vice president of marketing for the distributor: “We were providing people with a means to get their voices heard,” he said in reference to the perceived extreme measures his company planned on using to bring consumers to Austin for testifying. 1-800-CONTACTS simply wants to make it easier for contact lens distributors to sell contacts to consumers and for customers to obtain their prescriptions from doctors, he said.

“We already have good legislation that works properly,” said Marcus G. Piccolo, OD, an associate professor of optometry at the University of Houston College of Optometry and chairman of the Department of Clinical Sciences. Dr. Piccolo was troubled by legislation that would have “created increased amount of work within the eye practitioner’s office.” For example, “as a patient filled a prescription for contact lenses, the dispenser would need to contact the originating doctor. The doctor then would need to keep track of how many lenses had been dispensed and how many lenses are left, until that prescription has expired in terms of quantity,” he said.

Increasing cost of business

These bookkeeping chores could become staggering, especially for disposable lenses. In Texas, “we have 2.4 million contact lens wearers,” said Dr. Piccolo, a former TOA president. “If all of these contact lens wearers were to use a mechanism that required all of those eye care practitioners to keep tabs, it would be extremely difficult. It would be like a doctor prescribing an oral medication and the pharmacist having to contact the doctor every time the prescription is refilled.

“I don’t imagine 1-800 will go away from Texas. They are pushing similar legislation in numerous other states,” Dr. Piccolo said. Furthermore, “whether 1-800 wins or loses in any legislature, they essentially have already won by creating a massive marketing campaign. They’ve generated a lot of business even if they lose.”

Ms. Avery noted the scarcity of complaints. “We believe this has been a manufactured issue,” she said. “Out of 2.4 million contact lens wearers, there were only 14 complaints to the Texas Optometry Board in the year 2000.”

For Your Information:

Bj Avery can be reached at Texas Optometric Association, 1503 South I-35, Austin, TX 78741; (888) 263-6761; fax: (512) 326-8504; e-mail: texop@aol.com.

Laurie L. Sorrenson, OD, can be reached at Lakeline Vision, 12233 RR 620 North, Suite 103, Austin, TX 78750; (512) 918-3937; fax: (512) 918-3260; e-mail: sorrenson@attglobal.net.

1-800-CONTACTS Inc. can be reached at 51 W. Center St., Orem, UT 84057; 1-800-CONTACTS; fax: (801) 924-9900; Web site: 1800contacts.com.

Mike Duncan can be reached at the Texas Ophthalmological Association, 401 W. 15th St., Suite 825, Austin, TX 78701; (512) 370-1504; fax: (512) 370-1637; e-mail: mike@txeyenet.org.

Marcus G. Piccolo, OD, can be reached at University of Houston College of Optometry, 4901 Calhoun Rd., Houston, TX 77204; (713) 743-1971; fax: (713) 743-0730; e-mail: mpiccolo@uh.edu.