Senators Orrin Hatch (R-UT) and Richard Blumenthal (D-CT) sent a letter to the Honorable Maureen Ohlhausen—the Acting Chairman of the Federal Trade Commission (FTC)—urging that the proposed amendments to the Contact Lens Rule be finalized to spur competition and consumer choice in the marketplace for prescription contact lenses.

This letter was submitted as formal comments for a workshop the FTC is holding today on “Examining the Contact Lens Marketplace and Proposed Changes to the Commission’s Contact Lens Rule.”

The Fairness to Contact Lens Consumer Act (FCLCA) guarantees contact lens wearers the right to a copy of their prescription, so they can comparison shop and purchase from the seller of their choice. Unfortunately, many contact lens prescribers have been flouting the requirements to release prescriptions, forcing consumers to buy their lenses straight from prescribers. The FTC proposed reforms will improve the eye care providers’ compliance in releasing contact lens prescriptions.

“We applaud the FTC for proposing pro-consumer and pro-market reforms to the Contact Lens Rule that will ensure robust competition in the contact lens marketplace, and help improve eye care providers’ compliance with automatic prescription release,” Senators Hatch and Blumenthal wrote. “Specifically, we strongly support the provision calling for simple signed acknowledgements that consumers have received their prescriptions and the clarification that consumers may substitute the same lens made by the same manufacturer. In enacting the FCLCA, Congress recognized that Americans benefit from a competitive and vibrant contact lens marketplace that rewards innovation and provides choice.”

The full letter, as delivered to Acting Chairman Ohlhausen, is included below:

The Honorable Maureen Ohlhausen

Acting Chairman

Federal Trade Commission

600 Pennsylvania Ave., NW

Washington, DC 20580

Dear Acting Chairman Ohlhausen:

We commend the Federal Trade Commission (“the Commission”) for convening a workshop today on “Examining the Contact Lens Marketplace and Proposed Changes to the Commission’s Contact Lens Rule.” This market has long been a concern for Congress as approximately 45 million Americans rely on contact lenses for vision correction, so we appreciate the attention devoted to this issue.

In 2004, Congress enacted the Fairness to Contact Lens Consumers Act (FCLCA) to foster consumer choice and spur competition among contact lens sellers by guaranteeing every contact lens wearer the right to a copy of his or her prescription upon completion of a fitting, and by establishing a process by which prescriptions may be verified when the consumer chooses to purchase lenses from someone other than the prescriber. The law recognizes, and was made necessary by, the unique nature of the contact lens marketplace. Federal law correctly bars contact lens consumers from obtaining their lenses without a prescription. Yet, at the same time, eye care providers that issue prescriptions can also dispense the contact lenses they prescribe, creating an inherent conflict of interest.

As you know, the FCLCA is intended to protect consumers from this conflict of interest by requiring prescribers to automatically release prescriptions so consumers could comparison shop and more easily purchase lenses from the seller of their choice. Through this simple requirement, the FCLCA has predictably spurred competition, provided contact lens wearers with more choices, and encouraged investment into new technologies. Unfortunately, many eye care providers seem to be flouting these requirements.

We are concerned with the Commission’s finding that well over a decade after the FCLCA took effect, contact lens consumers are still not receiving copies of their prescriptions as required by law – a conclusion consistent with the experience of the 20 State Attorneys General who reported in a comment to the Commission that:  “[t]he States are aware, from their enforcement efforts and collective experience, that not all patients receive their prescription in writing as a matter of course.”

As the Commission noted in its recent review of the Rule—an exercise involving examination of over 660 comments; consideration of numerous studies, surveys and medical evidence; and many substantive meetings with interested parties, “The Commission believes that the overall weight of evidence in the rulemaking record—including the surveys, the high number of verifications, the ongoing pattern of consumer complaints and anecdotal reports, and the industry’s long history of failing to provide prescriptions to patients even when obligated by state law—indicates that compliance with the automatic prescription release provision could be substantially improved.” 

Last November, the Federal Trade Commission (“the Commission”) issued a Notice of Proposed Rulemaking (NPRM) proposing amendments to the Contact Lens Rule (“the Rule”) aimed at promoting competition and consumer choice in the marketplace for prescription contact lenses.

We applaud the FTC for proposing pro-consumer and pro-market reforms to the Rule that will ensure robust competition in the contact lens marketplace, and help improve eye care providers’ compliance with automatic prescription release. Specifically, we strongly support the provision calling for simple signed acknowledgements that consumers have received their prescriptions and the clarification that consumers may substitute the same lens made by the same manufacturer. We urge this NPRM be finalized promptly.

In enacting the FCLCA, Congress recognized that Americans benefit from a competitive and vibrant contact lens marketplace that rewards innovation and provides choice. We commend the FTC for acting diligently to preserve the integrity of this Act, and urge prompt finalization of the proposed updates to the Contact Lens Rule.

Sincerely,

Senator Orrin G. Hatch

Senator Richard Blumenthal