The FTC is seeking comment on their proposed rule to implement the Fairness to Contact Lens Consumers Act.

Summary

Legislation enacted in December 2003, directed the Federal Trade Commission (FTC), to issue regulations requiring that contact lenses must be sold pursuant to a prescription and that prescribers must release and verify prescriptions. The proposed rule would be similar to the existing FTC rule that requires eye doctors to give consumers their eyeglass prescriptions. The prescription release and verification requirements can be interpreted as measures to reduce the burden that the prescription requirement places on consumer choice.

A separate section of the legislation requires the FTC to study competition in the sale of prescription contact lenses. Issues to be examined include the incidence of exclusive relationships between lens prescribers or sellers and manufacturers, differences between online and offline lens sellers, effects of prescribing lenses by brand name or custom label, and the impact of the FTC’s pre-existing eyeglass rule on competition. In an ideal world, this study would have been undertaken prior to passage of the other parts of the legislation--or at least in time to inform this rulemaking. The legislation, however, gives the FTC a 12-month deadline for the study but only a 180-day deadline for promulgating the rule. The proposed rule closely mirrors the legislation. It also includes a number of definitions and items over which the FTC has some degree of discretion. These definitions could have a significant influence over how well the rule accomplishes its goals.

The FTC could best promote consumer welfare by taking these steps:

• adopt a more flexible definition of "business hours,"
• define "completed communication" in a way that avoids unduly delaying sales to consumers who have valid prescriptions,
• broaden the definition of "communication" to allow for future advances in technology, and
• define "contact lens" to include only those lenses intended for vision correction.