# :::m~ AMERICAN OPTOMETRIC ASSOCIATION > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/agency%3Aftc%3A51d315d416f89abb ## Record - **Collection:** Agency decision - **Document type:** Agency decision ## Text :::m~ AMERICAN OPTOMETRIC ASSOCIATION Contact Lens Rule - Proposed Rulemaking Contact Lens Rule - Proposed Rulemaking Comments from the American Optometric Association Prepared for the Federal Trade Commission September 18, 2019 September 18, 2019 I American Optometric Association ::::m~ AMERICAN OPTOMETRIC ASSOCIATION Contact Lens Rule - Proposed Rulemaking Rulemaking History ----·-·- - FTC Issues 45 letters to contact lens prescribers and 10 to contact lens sellers warning them of potential violations of the agency s Contact Lens Rule --- FTC holds public workshop, The Contact Lens Rule and The Evolving Contact Lens Market 1 • • I I Dec. 7 1 2016 ~ I Mar. 71 2018 Apr. 7, 2016 FTC Initiated the Contact Lens Rule Ten Year Review and requested feedback on how the Rule is working May 28, 2019 f------•1----~ Sept. 3, 2015 FTC issues Proposed Rule proposing new prescriber requirements, no new retailer requirements September 18, 2019 IAmerican Optometric Association FTC issues Supplemental Notice of Proposed Rulemaking, refining prescriber requirements and introducing new retailer requirements 2 :::::::~ AMERICAN OPTOMETRIC ASSOCIATION Contact Lens Rule - Proposed Rulemaking Contact Lens Market Evolution Much has changed in the contact lens market since 2015, when the 10-year review on the CLR was initiated: • Opternative/Visibly entered the market in 2015 providing an online vision test • Simple Contacts entered the market in 2015 providing an on line vision test for contact lens renewal • Opternative/Visibly partnered with 1-800-CONTACTS to offer an on line vision test in 2016 • Hubble Contacts entered the market with their own brand of daily contact lenses in 2016 • • • Waldo Contacts entered the market with their own brand of daily contact lenses in 2017 Aveo Contacts entered the market with their own brand of daily contact lenses in 2018 1-800-CONTACTS disengaged with Opternative/Visibly in 2017/18 and ExpressExam (the companls own on line vision test) was launched • 1-800-CONTACTS launched its own brand of daily contact lenses (AquaSoft) in 2018 • In 2019, Opternative/Visibly recalled their online vision test after FDA engagement. The reason for the recall was prompted because the company \\has not received authorization from FDA to market the product." • Simple Contacts, ExpressExam, Hubble Contacts, AquaSoft, Waldo, Aveo are all currently on the market September 18, 2019 I American Optometric Association 3 :::::~ AMERICAN OPTOMETRIC ASSOCIATION Contact Lens Rule - Proposed Rulemaking Reevaluating the basis for th is proposed ru le: contact lens prices are competitive • To follow up the FTC's 2005 study of contact lens pricing, AOA conducted a price comparison analysis that shows the FCLCA is working and competitive pressures on eye-care industry have been triggered • AOA study compared on line and inoffice costs of 81 contact lenses and found an average price difference of $0.32 across all lenses • 28 lenses were more expensive online, while 53 were more expensive in the doctor's office September 18, 2019 IAmerican Optometric Association • FTC's 2005 study had found: \\Not accounting for intrachannel differences, contact lenses sold online are on average $15 less expensive than those sold offline" The FTC should consider the current contact lens market and updated pricing dat a when making decisions about consumer choice and the competitiveness of the contact lens market 4 ·::m~ AMERICAN OPTOMETRIC ASSOCIATION Contact Lens Rule - Proposed Rulemaking Reevaluating the basis for this proposed rule: the contact lens market is not unique "Several commenters said the amendment is necessary because the market for contact lenses remains unique in that-unlike most other medical doctors-eye doctors sell the items they prescribe, and thus are rewarded financially for driving patients to their own retail channels. a (FTC SPRM 2019) • Attempts to paint contact lens market and the role of doctors in that market as unique is inaccurate • FTC lawyers refuted this argument in "[... ]it is common knowledge that healthcare professionals at ambulatory surgery centers, orthopedic centers, dental service providers, and many other 'healthcare providers' may sell the products that they prescribe." 2017 (FTC Complaint Counsel Finding of Fact In the Matter of 1-800 CONTACTS, INC., a corporation, Docket No. 9372) September 18, 2019 IAmerican Optometric Association 5 ·:::m~ AMERICAN OPTOMETRIC ASSOCIATION Contact Lens Rule - Proposed Rulema king 1 Reevaluating t he basis for this proposed rule: FTC s data shows low rate of prescri ption release noncompliance • 2017 Freedom of Information Act request showed that over the 2011-2016 period, the FTC received complaints from a total of 309 consumers out of rough ly 200 million contact lens prescriptions issued • During the March 2018 workshop, FTC staff noted \\from the FTC's perspective, we feel that the complaints we do get are a tip of the iceberg. And if you don t know that you have a right to your prescription, you certainly don t know that you're supposed to complain to the FTC." 1 1 September 18, 2019 IAmerican Optometric Association The complaints of prescription release noncompliance represent approximately 0.00015% of the contact lens prescriptions issued between 2011-16 Solution: to address the Commission's immediate concern regarding consumers' awareness of their rights, require doctors to post a sign in their offices notifying patients of their right to their prescription 6 ::::m~ AMERICAN OPTOMETRIC ASSOCIATION Contact Lens Rule - Proposed Rulemaking The reality of the Contact Lens Rule: on line retailer practices and growth - - --··-·· My (d,t 1 Sh1pp1n1t - - -··---·- ··· - - ·- - - - - - - - -- - - - - - -- - -- 2 Oo,tor Info Prescription Verification Federal law requtres chac we verify your prescnpc1on wllh your doctor. Please note that we will not be able to shi p your order until 1r 1s verified --- ----------- ------------------1800 contacts 0. . HJve us contact your doctor : ,,:,..:, 1 :~• ~ : ...--:c , .,... , r · •, , >..• , .- •, ·-,: :r ~,.'! .\t , o-r~:• ;;,· ,,. •o• , >- How would you like to provide your prescription? • . Send us a copy of your prescnption latN ,',r,. i,e:,,:;.•·. ,·, ~ .... : l ,t ' ; : • :r , :.... - :· ::,., ' ~:,-",; , ., · , ::. .. , c-~•·~: :r •~•.r• ' :• : •Y \ Ai', H.1ssle Free L:2..J Returns Doctor Information Hove your written prescriptiotl? Looking at your contacts box? IJplood a photo [ntar manually ..,.,,. ' .. ,,,, (]) OrQer h 1h :111, llon • @ D o c tor lnformatfo n c , •..ul t t C "'• • • 1 •Day Acuvu e .,, Po1.rten l D.:lltt- of Birth p ..,, . ·, ,.,,.,., /J\ Cust omer S~rvic e \.24 Availabm 24 17 Pfe;u;e en1e, Iha doctOf and p.1t1en1 mfomlaUon ff)( Iha 00111act 181'ls~es) OOlow This w1f01mallon \viii assist us ,n venty1r,g your prM cripllon ar- J \VIII l\otrlp 0xpoc.hte th e procesi:-ifl(J of ynur n,c1er. \" .. illl.:dll :<>t b l 1..l-.rndf' ... Need He lp? Patien t Nam~• ' Moolh • O oct or o r S to re N•me" Ooclor Phone'" i •NZldi:+ September 1 8 , 2019 I American Optometric Association Online retailers encourage the use of passive verification The FTC's 2005 report included data indicating independent doctors represented 68.6 % of the contact lens market share Vision Council 201 7 data shows that independent physician share was 39% The fastest-growing distribution channel for CL sales in t he US was the online/lnternet channe l 7 ·::m~ AMERICAN OPTOMETRIC ASSOCIATION Contact Lens Rule - Proposed Rulemaking Reevaluating the basis for this proposed rule: data used regarding prescription release compliance is questionable • FTC relies heavily on misleading data provided by 1800-CONTACTS regarding prescriber compliance with the release of contact lens prescriptions Solution: better data is needed to fully assess compliance • In their July 2019 survey, 1-800-CONTACTS again asked patients if they had to ask for their contact lens prescription • 1-800 CONTACTS reports 56.9% of patients who were not "automatically provided Rx" had to ask for it • The data from these past two surveys equate a patient asking for their prescription with non-compliance • Patient requests for prescription before a fitting is complete are common: 91.7% of ODs say patients ask for prescription prior to finalization of contact lens fitting according to June 2019 AOA study September 18, 2019 I American Optometric Association Solution: create a dedicated complaint system for FCLCA-related concerns 8 ,::m~ AMERICAN OPTOMETRIC ASSOCIATION Contact Lens Ru le - Proposed Ru lemaking 1-800-CONTACTS advertisements direct patients away from comprehensive eye examinations The company is creating a business model built on pushing people away from their doctors and instead use 1-800-CONTACTS' online vision exam and purchase its own brand of contact lenses - - ---- -•• like 1 -80 0 CONTAC TS & • • Jul:, 1·1. 2018 ,. Share - _;' Suggest Edits - - - - - -~ ... ~ A Skip the trip to the optometrist and use our Express Exam to renew your contact lens prescription https 11wv,,n,v 1800contacts comionlIne- contactlens-prescription . 1 -800 CONTACTS ,. ,,, 1 \.4' Then vs Now Less time at the eye doctors office=more time in bed -SI Winning• What will you do wth your extra t ime? Follow tne link to o ur on llne vision exam mtp ,,t:; 1 1y,2v 'EJl.!ht 1-800 CONTACTS 0 :, Uh. cc·nar..ts minutes Home About Posts 10 5 THEN Time needed for a v1s1on exum 90 Photos Videos 75 Job Openings Events Notes 60 45 Community Q -·--·- 12 - - -- -- - -- 9 Comm'='nts - (!;) Share September 18, 2019 j American Optometric Association FitiiiiiiM 30 NOW Time needed to r our online vision exam 15 I I 9 ·::m~ AMERICAN OPTOMETRIC ASSOCIATION Contact Lens Rule - Proposed Rulemaking 1-800-CONTACTS advertisements direct patients away from comprehensive eye examinations < < Tweet &\ 1-800 Contacts 0 - (