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The FTC’s contact lens proposal is a free market solution

The FTC’s contact lens proposal is a free market solution

(Alexander Hendrie & Chuck Muth) – Conservatives support free markets because they give consumers — rather than the government — the freedom to make purchasing choices and decide what price to pay.

That’s why the Federal Trade Commission’s (FTC) recent proposal to protect contact lens consumer choice is pro-free market.

However, the FTC’s proposed rule is not a burdensome regulation that Trump should repeal, it is quite the opposite. The rule is a free market measure that ensures consumers have access to their prescription regardless of where they purchase their contact lens, as they should.

In the U.S., contact lenses require a prescription just like medical devices and many medicines. Getting this prescription means seeing an optometrist that approves the purchase of contact lenses.

Optometrists are unique among medical professionals in that they provide both the service and the product; optometrists prescribe the contact lens and also sell it.

While there is nothing wrong with this, it naturally means that there needs to be guardrails in place so that bad actors cannot abuse this dual role at the expense of consumers.

In some cases, the last thing an optometrist wants to do is hand over prescriptions to patients so they can shop around to buy lenses from lower-priced online retailers and warehouse stores. They want to make the sale themselves to boost their own profit.

Conservatives have accepted the need for guardrails. In 2003, the then Republican-controlled Congress passed, and President George W. Bush signed into law, the Fairness to Contact Lens Consumers Act (FCLCA).

The law, along with the FTC’s accompanying Contact Lens Rule, requires optometrists to provide prescriptions to patients following eye exams, allowing the patient to purchase lenses from their retailer of choice. The law provided a conservative solution to a potential conflict of interest — it aimed to protect consumers in a way that did not cause undue burden to business.

However, almost 15 years later, it is clear that the law needs to be reevaluated and strengthened. Some optometrists have simply ignored the rule, with a 2008 survey finding that roughly half admitted to not complying with the law. Another survey found that that nearly one-third of contact lens consumers were still not receiving their prescriptions.

These findings mean the rule needs to be strengthened to increase access while also balancing compliance. The FTC proposal does just that. Under the rule, optometrists will be required to obtain a signed acknowledgement from patients following the receipt of their prescription, and to keep that form (online or in print) on hand for three years. Under this system, consumers get access to their prescription and the freedom to shop where they choose. Optometrists already have patient files, so the regulatory burden is minimal at worst.

The FTC noted this balance by finding that “any recordkeeping burden would be relatively minimal and outweighed by the benefit of having more patients in possession of their prescriptions…” The agency further wrote: “The majority of states already require that optometrists maintain records of eye examinations for at least three years, and maintaining a one page acknowledgment form per patient per year should not take more than a few seconds of time, and an inconsequential, or de minimis, amount of record space.”

Now, in a last ditch, desperate effort to block this rule change, the AOA has been lobbying Senators to include language in a pending 2018 spending bill that would essentially instruct the FTC to reverse course.

This anti-competitive language, which is being snuck in behind closed doors with no consultation or consideration by the full Congress, represents a blatant give-away to a special interest, at the expense of American consumers. We hope members of Congress see it for what it is and strike it from the final bill.

While some optometrists that are bad actors may try to undermine this rule because it cuts into profits, it is a commonsense proposal that ensures that consumers and optometrists are protected.

The FTC has produced a smart and minimally-burdensome proposal to solve this problem. Anyone who believes in the free market should support the FTC’s effort to promote competition and consumer choice in the sale of contact lenses.

Alexander Hendrie is Director of Tax Policy for Americans for Tax Reform. Chuck Muth is President of Citizen Outreach.  This column was originally published in The Hill on December 8, 2017.

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