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Johnson and Johnson’s bill to squash competition in the contact lens market

(Brian McNicoll) – After a round of Capitol Hill meetings on eye-care policy, Peter Menziuso, president of J&J Vision North America, said all the right things about how “helping people safeguard their eyesight is our top priority at Johnson & Johnson Vision.”

But this is not exactly the reason he and Andrea Thau, president of the American Optometric Association, were recently on Capitol Hill to lobby for industry protections.

The issues involved are complicated, but a well-known headache for those with less-than-perfect eyesight. In the eye-care industry, almost alone among medical specialties, doctors both diagnose patients and sell them their treatment in the form of contacts or glasses.

Contact lens makers in turn pay bonuses to the doctors for using their brands, which incentivizes doctors to prescribe more expensive name-brand lenses whenever possible.

Which brings us back to Thau, Menziuso and their recent visit to Capitol Hill. Vision Monday, an industry newsletter, reports that the duo expressed the organization’s “continuing support for one-year contact lens prescription expiration dates, non-substitution of prescribed contact lens brands, and comprehensive eye exams.”

As for the annual exam requirement, even the organization Thau heads admits that nearly all eye patients would be just fine getting exams every two years instead of every year. The non-substitution proposal, which drives up costs, clearly is aimed at protecting industry leaders, such as Johnson & Johnson, which controls 40 percent of the market.

The piece about comprehensive eye exams speaks even more to the industry’s seemingly reflexive anti-market past because it threatens both doctors and contact lens makers.

Apps are now available for mobile phones and tablets that enable users to conduct their own eye exams. The accuracy of the exams is not in doubt; they are reviewed online by board-certified physicians, and the apps call for seeking real-life medical attention if anything beyond a routine prescription of contacts or glasses is needed.

The apps generate prescriptions that then can be submitted to online providers, thus bypassing Johnson & Johnson’s optometrist-led network.

In Europe, Japan and elsewhere, where prescriptions for glasses and contacts are not required, “helping people safeguard their eyesight” is accomplished by Johnson & Johnson through both over-the-counter and vending machine sales. But in the United States, “helping people safeguard their eyesight” requires a brand-name-restricted prescription that only the doctor can possess and tightly limited access to the market by consumers.

Weird, right?

But that’s what the visit to Capitol Hill was all about. Before the Fairness in Contact Lens Consumers Act passed in 2003, eye doctors not only could refuse to provide prescriptions, thus creating an effective monopoly on glasses and contact lens sales, they could even slow-walk approval of diagnoses from online or other providers until the prescriptions expired and were no longer valid.

Legislation known as the Consumer Health Protection Act, which would have gutted these consumer protections, failed in the last Congress. Menzuiuso and Thal visited Sen. Bill Nelson, D-Fla., and Reps. Bob Latta, R-Ohio, Michael Burgess, MD, R-Texas, and others in an attempt to find a sponsor to reintroduce it this session.

No one begrudges Johnson & Johnson for lobbying Washington for legislation favorable to its business model. But don’t be confused about what that business model entails: Price fixing. For a long while, Johnson & Johnson was requiring its products to be sold for a minimum price, which prevents rock-bottom, buy-in-mass resellers such as Lens.com and 1-800-CONTACTS from offering lower prices.

The firm instituted this policy in 2015, increasing annual outlays for customers by 60 percent or more in some cases. Its three largest competitors followed suit until multiple threats of lawsuits convinced them to drop the idea.

The effect is that customers are held hostage to industry rules designed solely to build the profits of its members. Likewise, the usually unnecessary requirement for annual rather than biennial eye exams and prescription expirations.

This policy, which entails quashing promising technologies, such as the eye-exam software, is what this lobbying is all about, so that lawmakers will introduce a bill that will cut choice, raise costs and threaten innovation.

You can argue that this protects a relationship. But you can’t then argue helping safeguard patients’ eyesight is the top priority.

Brian McNicoll is a freelance writer based in Alexandria, Va.  This column was originally published by the Washington Examiner on June 5, 2017

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