Marketplace changes compel FTC to reevaluate Contact Lens Rule

Thomas B. Pahl

One goal of yesterday’s FTC workshop on the Contact Lens Rule was to evaluate changes in the contact lens marketplace that may create opportunities to obtain lenses safely and at competitive prices, Thomas B. Pahl, acting director at the Bureau of Consumer Protection, said during the Washington workshop and by webcast.

“The Contact Lens Rule, in place since 2004, has contributed to the diversity and growth of the contact lens marketplace,” Pahl said at “The Contact Lens Rule and the evolving contact lens marketplace” workshop.

Pahl worked on the original rule in 2004 as an FTC staff member.

“Often what people think of as requirements proposed by the FTC through the Contact Lens Rule are spelled out in the statute as the Fairness to Contact Lens Consumer Act (FCLCA), which went into effect in 2004,” Pahl said.

The heart of the act is automatic prescription release and passive verification, he said. To substantially alter these, he warned, would take legislative action.

“At time of the act’s passage, two-thirds of states had a statute requiring some form of prescription release to consumers,” he said.

Despite these laws, Congress determined that many consumers were still not receiving copies of their prescriptions and were having a difficult time obtaining lenses from third-party sellers due to prescription verification obstacles, he said.

“Problems with prescription release and verification hampered competition and limited consumer ability to comparison shop,” Pahl said.

Congress also had concerns that some vendors were selling lenses without requiring a valid prescription, which the act was intended to remedy, he said.

The automatic prescription release requirement mandates that prescribers give consumers a free copy of their prescription to use at any seller.

Congress then opted for a framework for three methods of verification, including passive verification, when the doctor fails to respond within 8 business hours. Prescribers are not able to block third parties from selling to consumers by ignoring verification requests.

“Today, our focus is on the Contact Lens Rule, which the FTC issued in 2004 to implement the act, and tracks a statute very closely with the same requirements for prescription release, prescription verification and that providers cannot charge extra for doing so,” Pahl said.

Additional provisions include: sellers are required to keep records, business hours must be defined, and sellers must provide an opportunity for communication from the doctor during that 8-hour period.

In September 2015, the FTC sought public comment on the rule to determine how it was functioning. They received 660 comments and decided there was a continuing need for the legislation, as it benefits consumers and market competition, Pahl said.

Some commenters said the verification requests and primarily, robocalls, were a burden for eye doctors.

The comments also indicated that, after a decade, many doctors were still not releasing prescriptions, he said.

In November 2016, the FTC decided there was need for improved compliance and a mechanism for monitoring and enforcing the rule.

“They proposed to amend the rule to have consumers receive a signed acknowledgment form confirming receipt of the prescription. Prescribers would have to save the signed form for 3 years, leading to an increase in prescription release, enhanced patient choice, flexibility and reduced verification errors,” he said.

“In response to the proposed amendment, we received over 4,000 comments, including 800 from doctors alone,” he said. “While many supported the proposed amendment, the comments raised many issues that the commission decided needed more attention and examination.” – by Abigail Sutton

Editor’s note: This is the first in a series of articles covering the workshop.

Disclosure: Pahl is the acting director at the FTC Bureau of Consumer Protection.