Contact lens retailer violating law, suit says

The state has filed a lawsuit in San Antonio accusing an online retailer of breaking the law by selling contact lenses to consumers without prescriptions.

It marks the second time in 17 months that Texas Attorney General Ken Paxton has taken action against New Jersey-based THEG Inc., which does business as Fine & Clear.

The company sells contact lenses on the websites fineandclear.com and rainbowcomplete.com, court documents indicate.

The state has requested a hearing to get a temporary injunction to prevent THEG from selling lenses without a prescription. The state also seeks up to $1 million in damages from THEG.

Last year, the attorney general’s office found evidence that the company was selling contact lenses without requiring consumers to present a valid prescription.

As a result, THEG and President Hyunyil Cho agreed in June 2017 to refrain from selling contact lenses unless they received prescriptions from physicians.

THEG and Cho also agreed to pay $31,000 in civil penalties and $5,000 in investigative costs and attorneys’ fees in $3,000 monthly installments to the state.

In addition, THEG agreed to provide full refunds to consumers who returned their lenses in an unopened box within 90 days of the agreement.

But on Tuesday, Paxton filed a lawsuit in the state district court in Bexar County, accusing THEG of continuing to violate the law. Cho is not a defendant in the law-

suit.

Two calls to RainbowComplete’s toll-free number went unanswered Thursday. Benjamin Hisey, a Houston lawyer who represented THEG and Cho in last year’s matter, did not immediately respond to an email. A spokeswoman for Paxton also did not immediately respond to an email.

Gina McDonald, an investigator in the Consumer Protection Division of the attorney general’s office, said in an affidavit filed with Paxton’s lawsuit that in September she bought from rainbowcomplete.com a pair of red and yellow Halloween lenses for $22.99 and a pair of “Barbie’s prescription Big Eye lenses in -3.75 power” for $19.99.

“I was never asked to upload a prescription and was able to successfully complete my purchase,” McDonald said in her affidavit.

But state law requires consumers to have a prescription to buy contact lenses, even if they are only cosmetic lenses.

Paxton alleges THEG has violated the Texas Contact Lens Prescription Act by failing to verify prescriptions and the Texas Optometry Act by failing to obtain prescriptions before selling contact lenses.

The company also is accused of violating the state’s Deceptive Trade Practices Act by not disclosing to consumers that a prescription is required to make a purchase.

The U.S. Food and Drug Administration has warned consumers about the potential risks of wearing contact lenses without a prescription, the lawsuit notes. Users can suffer serious eye infections and corneal ulcers, or sores.

The lawsuit references a 2017 Dallas Morning News article about a Lubbock woman who alleged in a lawsuit that she was blinded by contact lenses purchased at a flea market.

“Contact lenses are not over the counter devices,” the state says in its lawsuit. “Businesses that sell them as such are misbranding the lenses and violating Texas law when they sell lenses without a valid prescription.

“Contact laws and regulations apply to both corrective and noncorrective lenses (also known as cosmetic lenses),” the lawsuit adds.

The lawsuit also says that in October 2016, the Consumer Protection Division questioned Cho under oath and he admitted his business had not been verifying prescriptions for two years for individuals who bought cosmetic lenses.