Don’t mess with contact lens consumer rights

With all of the noise coming out of Washington about health care policy these days, it is understandable if you missed another health care-related fight going on right now that impacts more than 40 million Americans. It is the fight to protect contact lens consumer rights – and Georgia Congressman Tom Graves has a key role in the outcome.

Consumer Action and the National Taxpayers Union are groups that don’t often find themselves on the same side of issues in Washington, but our organizations have found common ground in this struggle centered on an issue of simple fairness: the right of contact lens consumers to receive their prescriptions from optometrists following eye exams so they can shop around for the best price on contact lenses.

Unlike most other healthcare professionals, who are not allowed to sell what they prescribe, optometrists can issue prescriptions to patients and then sell them contact lenses. In fact, optometrists earn up to 70 percent of their revenue from the sale of contact lenses and glasses, instead of from providing eye care services. This clear conflict of interest led Congress in 2003 to pass the Fairness to Contact Lens Consumers Act, which requires optometrists to provide prescriptions to patients, without the patient having to ask. The requirement was intended to ensure consumers can buy their lenses wherever they want, be it a big box store, a drugstore or an online contact lens retailer.

But in the 14 years since the FCLCA was enacted, we have seen a repeated failure of many optometrists to comply with the law. The problem persists to this day. A 2017 Consumer Action poll of 685 contact lens consumers found that close to one-third of respondents (31 percent) said they were not given a copy of their prescription after a contact lens exam. And the problem is worse in minority communities. Almost half of Hispanics surveyed (44 percent) said they were not given their prescriptions. Consumer Action’s poll also showed that 60% of respondents were still unaware of the legal requirement that optometrists must automatically provide patients a copy of their prescription.

In response to reports of these repeated violations of the law, the Federal Trade Commission has proposed an update to the Contact Lens Rule, the regulation guiding implementation of the FCLCA. Under the FTC’s proposal, optometrists would be required to obtain signed acknowledgments after giving consumers their prescriptions and to keep those acknowledgments on hand for three years. This is a common sense, minimally-burdensome requirement that consumers and optometrists can and should support.

Unfortunately, the American Optometric Association, the lobbying group representing optometrists, and certain contact lens manufacturers, which both profit from the status quo, have mounted an aggressive campaign in Congress to block this important update to the Contact Lens Rule. Their latest scheme is to insert language in the appropriations bill funding the FTC that essentially calls on the agency to drop its proposed update. Whether or not this ploy works may soon be decided by West Virginia Senator Shelley Moore Capito and Georgia Representative Tom Graves, who lead the appropriations subcommittees overseeing the FTC.

It is difficult to understand why Congress would intervene now. The FTC and its professional, nonpartisan staff conducted a thorough, transparent rule review process over a year and a half. The agency weighed arguments and data from many different entities, including the AOA. It also looked closely at research submitted by groups like ours, companies that make and sell contact lenses, ophthalmologists and eye care providers who do not sell what they prescribe.

Our organizations, while strange bedfellows, believe strongly that the FTC’s update to the Contact Lens Rule should be allowed to take effect as proposed. As a champion of well-functioning, wellregulated competitive marketplaces, Consumer Action believes the proposed update is critical to ensuring that consumers can benefit from shopping around to find the best price. The National Taxpayers Union has dedicated decades to fighting onerous regulations, including the FTC’s. Nonetheless, NTU believes the update is smart policy: providing more choices and lower costs for consumers will ultimately help governments by easing the financial pressure health programs.

If special-interest opponents of the FTC’s proposal have their way, it would drag Americans back into the last century and force them to suffer less convenience and higher costs, with absolutely no health benefit. We hope Congress will reject this 11th hour maneuver to undermine improvements to a federal rule that actually works and that people of all ideologies can agree upon. Forty million-plus contact lens wearers are counting on common sense from our nation’s leaders.

Ken McEldowney is executive director of Consumer Action. Pete Sepp is President of the National Taxpayers Union.

A version of this op-ed appeared in the Morning Consult , a Washington DC online newspaper, on 8/15/2017.