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Vistakon the last of four to settle contact lens antitrust lawsuit
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JACKSONVILLE, Fla. — The final chapter of a large contact lens antitrust case has been closed following a settlement agreement by Vistakon here. The attorneys general of 32 states, as well as a certified nationwide class of consumers, brought lawsuits in 1994 alleging that retail prices of replacement contact lenses were too high because Vistakon agreed with the American Optometric Association (AOA) that its lenses would only be made available through eye care professionals or retail optical and mass merchandisers. Vistakon has denied participating in the alleged agreement and has denied that its actions have increased retail prices of replacement contact lenses.
As part of the settlement, Vistakon will pay the plaintiffs $25 million, inclusive of fees and expenses. The settlement also includes a guaranteed Benefits Package Fund of $30 million, consisting of products and services related to contact lenses.
Vistakon is the fourth and final party to settle in the antitrust case, which also included Bausch & Lomb, CIBA Vision and the AOA. CIBA settled in 1997, Bausch & Lomb this past February and the AOA in May.
Philip R. Keefer, president of Vistakon Americas, said that one reason the company ultimately decided to settle was the media attention focused on the 1-day Acuvue contact lens lawsuit that is still being resolved. “Both sides felt that the publicity would contaminate the jury and that there would be a mistrial,” he told Primary Care Optometry News. “So the judge pushed for a settlement.”
A victory for Vistakon
One unique part of the settlement, and the other reason Vistakon agreed to settle, is that the 32 state attorneys general have agreed to enforce their state laws and regulations regarding the sale and dispensing of contact lenses. The court in Jacksonville, Fla., where the cases were pending, will retain jurisdiction over the cases for 5 years to enforce the terms of the parties’ agreement.
Also as part of the settlement agreement, Vistakon agrees to sell its Acuvue contact lenses to appropriate alternative channels of distribution, such as mail-order businesses, in a commercially reasonable and nondiscriminatory manner, provided that such businesses sell contact lenses only to consumers, based upon a valid prescription and in compliance with all federal and state laws and regulations regarding the sale or dispensing of contact lenses, according to a company statement.
Assuring regulations are met
Mr. Keefer said that much activity will be taking place to ensure the enforcement of the state laws. “We plan to meet with the state licensing boards, one at a time, understand exactly what the laws and regulations are surrounding the dispensing and selling of contact lenses in each state, and then determine what evidence is required for attorneys general to take action,” he said. “If laws are being broken with Acuvue, we will gather the necessary evidence and take it forward. If the attorneys general refuse to act on it, the federal judge who is monitoring the agreement for 5 years will call them back into federal court and make them explain why they’re not enforcing it or will hold them in contempt.”
The settlement is different for Vistakon than for the other two contact lens companies, said Mr. Keefer. “Our understanding is that they have to sell to mail-order companies unconditionally for 5 years,” he said. “We don’t have to sell to any new accounts unless they only sell with a valid prescription and comply with federal and all state laws regarding the sale and dispensing of contact lenses. So if they comply with 49 state laws, they are not compliant with all state laws, and we don’t have to sell to them.”
The third major difference is the fact that businesses cannot sell Vistakon’s diagnostic lenses to consumers.
Other terms of the settlement
The Benefits Package Fund totaling $30 million ensures that any consumer who purchased a CIBA Vision, Bausch & Lomb or Vistakon brand replacement contact lens from an eye care professional from 1988 to the present is eligible to receive a $50 discount off a purchase of four or more multi-packs of Acuvue contact lenses, a $25 discount on an eye examination and a $25 coupon for a future purchase of four or more multi-packs. Vistakon is required to offer the total package, worth $100, to at least 300,000 people, said Mr. Keefer.
Vistakon will also set up a Compensation Fund, worth $5 million in cash or coupons, for consumers who once wore Vistakon contact lenses but no longer do so. Vistakon will provide $50 in Johnson & Johnson product coupons or $35 in cash to previous Acuvue patients who no longer wear contact lenses.
Eye care professionals should direct eligible patients to call Vistakon’s toll-free line at (888) 437-1294, or to log on to the Web site, www.acuvue.com, where they can register for the benefits package.
For Your Information:
- Philip R. Keefer is the president of Vistakon Americas. He may be reached at 7596 Centurion Pkwy., Jacksonville, FL 32256; (904) 443-1002; (904) 443-1574; e-mail: pkeefer1@visus.jnj.com.