Time For GOP Congress To Stop Anti-Consumer Cronyism In Contact Lens Legislation

Kevin Mooney Kevin is a journalist and investigative reporter for the Commonwealth Foundation in Harrisburg, Pennsylvania, and the Heritage Foundation in Washington D.C.
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Try to imagine what a GEICO-type commercial for contact lenses built around opening day of Major League Baseball might look and sound like.

“Can Lens.com provide you with an affordable, clear image of your favorite team from the upper decks way out above left field from the furthest point of play?”

Now, imagine the narrator shifting his voice down into that ubiquitous, somber tone to drive home the point about cost savings.

“Do the Philadelphia Phillies have a special talent for blowing 9th inning leads and making bad trades while locking themselves into expensive contracts with diminishing returns?”

There’s ample room here for creativity in advertising aimed at the perpetually frustrated baseball fan with poor eyesight (and plenty of footage out of Philadelphia).

In fact, there’s a large market of potential customers among the general populace that would be receptive to commercials that tout the product lines available at Lens.com and other online distributers. More than 40 million Americans wear contact lenses, according to the Centers for Disease Control and Prevention.

Unfortunately, the liberalized, competitive features of the insurance market do not apply to the contact lens industry, which is bedeviled by burdensome health care regulations and corporate cronyism. Under federal law, customers are required to obtain a prescription from a licensed optometrist before they can purchase contacts.

That’s a problem because those same optometrists who write the prescriptions are well-positioned to sell their own preferred products at a price that is substantially higher than it would otherwise be if consumers were free to shop around. And, guess what? This is precisely what happens. Since the contact lens prescribers are also contact lens sellers, the relationship between the optometrist and manufacturer is such that patients are typically herded in the direction of the optometrist’s preferred brand.

The incestuous relationship between eye doctors and contact lens manufacturers opens the door to unsavory practices that impose additional costs on the already beleaguered consumer. The prescriber’s recommendation of a contact lens brand is susceptible to various kickbacks and inducements from their preferred brands. There are, for instance, manufacturer “loyalty programs” offered up to optometrists who prescribe and then sell their own products. These programs do not fly in other medical fields as they are laced with inherent conflicts of interest that the larger health care community properly views as unethical.  

An audacious Republican Congress could move forcibly and decisively to uproot the federal prescription requirement so consumers would be free to take advantage of Internet technology and shop online for contact lenses. Think in terms of the ease and fluidity of purchasing books, movies and computers from Amazon.com and how this could impact the contact lens industry. Nimble, agile newcomers to the market could exert downward pressure on prices by aggressively promoting their product lines in GEICO-like fashion. The elimination of the prescription mandate would have the added benefit of putting the U.S. on an even keel with the Europe Union and Japan where consumers can purchases contacts without a prescription if they so choose. So what’s the hold up?

Apparently, the larger contact lens manufacturers have friends in government who are unwilling to level the playing field between these politically well-connected companies and their smaller, online counterparts. The chief culprit here is Coalition for Patient Vision Care Safety, which includes Johnson & Johnson along with several other large manufacturers and the American Optometric Association. While the Coalition members are free to describe themselves itself in seemingly benign terms, it’s high time they were called out for peddling false and misleading allegations. That part about patient safety is a canard. In reality, online contact lens consumers report fewer instances of infections in large part because they closely adhere to the Center for Disease Control’s guidelines for healthy contact lens wear. Consumers are more likely to wear clean, fresh lenses when they are convenient and affordable. That’s the free market at work. Moreover, the same manufacturers who raise the specter of public safety have no problem selling their products in the EU and in Japan where there is no prescription mandate. Go figure.

A little history is in order here. Let’s not forget that the AOA was censured in court for making unsubstantiated health care claims related to the source of contact lens purchases. It was in 2001 that the association paid $750,000 in penalties under a settlement agreement reached in the U.S. District Court in the Middle District of Florida Jacksonville Division. As part of the settlement, the AOA also agreed that it “shall not represent directly or indirectly that increased eye health risk is inherent in the distribution of replacement disposable contact lenses by mail order or pharmacy or drug stores.” Put simply, it can’t sully the reputation of its competition by advancing alarmist assertions that lack a factual foundation. Now this same entity and its coalition partners are taking aim at the one sensible piece of legislation Congress passed in recent years to protect consumers from anti-free market cronyism. That would be the 2003 Fairness to Contact Lens Consumers Act, which says that contact lens prescribers must provide a copy of the prescription to patients. This was an incremental, but important step in the direction of a more competitive marketplace, one where consumers could take their prescription and shop around.

Unfortunately, the law has not been aggressively enforced. Government figures show the eye doctors decline to provide patients with a copy of their prescription roughly half of the time. What this says is that the larger companies have worked in concert with their congressional allies to dilute the FCLCA of any real meaning. They are now poised to land a knock-out blow in the form of a new bill entitled the “Contact Lens Consumer Health Protection Act of 2016,” which Sen. Bill Cassidy (R-La.) introduced just last week. It’s a doozy. Instead of empowering consumers with more choice, the bill adds mandates to the contact lens prescriber verification process making it much more difficult for online distributers of contact lenses to sell directly to consumers.

By requiring contact lens sellers to provide live telephone, fax and email methods for prescribers to contact the sellers, Cassidy’s bill would set a very cumbersome process into motion. This provision completely guts the original intention of the FCLCA as it would enable optometrists to indefinitely block a sale by simply communicating a question through the live agent service line and then refuse any future communications. As an added insult, the bill provides for $40,000 in fines for each violation.

The one bit of encouraging news comes in the form of a letter Sens. Mike Lee (R-Utah) and Amy Klobuchar (D-Minn.) sent to FTC Chairwoman Edith Ramirez asking the Commission to investigative current practices within the contact lens industry to ensure that consumers are “experiencing a greater choice of brands, lower prices for lenses and more vibrant retail choices…” Lee and Klobuchar also ask that that FTC probe into comments made during the rulemaking process that suggest patients are not automatically receiving their prescription.

If Congress won’t step up to repeal the federal requirement for prescriptions, it should at least move to aggressively enforce the pro-consumer laws that are already on the books while resisting new mandates. Proponents of so-called Contact Lens Consumer Health Protection Act” are pinning their hopes on slick, public-safety messaging meant to deflect attention away from the substance of the bill. The cronyism lurking behind the bill’s proposed mandates should be anathema to a Republican Congress that supposedly favors free market solutions. Here, they have the opportunity to prove it by blocking government rules and regulations that protect well-funded special interests at the expense of constituents who don’t have friends in high places. Will they?

Tug McGraw, the Phillies pitcher who famously struck out the last batter to win the 1980 World Series, had the appropriate comment: “Ya Gotta Believe!” He was with Mets when he first coined the phrase. But back then, the Phillies were able to recognize good talent and make good trades.