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Open Letter to The House on Contact Lens Rule

by Pete Sepp / /

The Honorable Tom Graves
Chairman, Subcommittee on Appropriations and General Government
Committee on Appropriations
United States House of Representatives
Washington, DC 20515

Dear Chairman Graves:

Over the coming days, you and your colleagues will be developing, with the Senate, a version of the Financial Services and General Government (FSGG) Appropriations legislation for both chambers to consider. On behalf of the undersigned free-market, pro-taxpayer organizations, we urge your support for preserving freedom of choice and fiscal responsibility by rejecting any language that would undermine the Federal Trade Commission’s (FTC) recently proposed actions regarding the Contact Lens Rule. Your leadership now to preserve progress can make a vital stand for the rights of consumers and taxpayers.

As you know, the FTC recently promulgated an update to its highly-successful Contact Lens Rule, the regulation guiding implementation of the landmark Fairness to Contact Lens Consumers Act of 2003 (FCLCA). The new rules strengthen the freedom of Americans to renew their prescriptions through the widest array of safe options possible, including online or through “click and mortar” venues. This means that consumers can shop for the renewal arrangement that best suits their finances and lifestyles. At the same time, taxpayer-funded insurance plans, such as those for government employees, can obtain the best possible value for each dollar expended on benefits. For these reasons, all of us were concerned to read that the Senate’s version of the FSGG Appropriations bill contained the following provision:

Contact Lenses.—The Committee is disappointed in the FTC’s decision not to include the proposed patient safety improvements related to the prescription verification process in its draft contact lens rule and instead impose new paperwork requirements on patients and doctors that are unnecessarily burdensome. The Committee directs the FTC to prioritize patient safety and consider enforcement mechanisms under its existing authority or revisions to the draft rule that address sales of excessive quantities of lenses, illegal substitutions, and communication challenges associated with prescription verification, including robo-calls.

On the other hand, the House’s FSGG legislation simply states that your Committee is “aware of the FTC’s ongoing review” and “urges [FTC] to make modifications to the rule that prioritize patient safety, consumer accessibility, and strengthen enforcement mechanisms.” This language is far more preferable.

As organizations dedicated to economic freedom and taxpayer rights, we take very seriously the Senate bill’s assertion that the FTC’s updated draft rule might heap new burdens on small businesses. We can assure you that this rule will not mean such dramatic impositions, and indeed will, on net, facilitate economic efficiency and productivity. As the legislative process moves forward, it is essential to uphold the principles of marketplace competition, consumer choice, and taxpayer savings.

Each of the organizations on this letter has submitted comments numerous times to the FTC as part of the rulemaking process, and several of us advocated the passage of the FCLCA more than a decade ago. We all believe that Congress should reject any attempt to turn back the clock on this vital protection for consumers and taxpayers.

It is important to keep in mind that the contact lens marketplace is unique. Unlike medical doctors, who are prohibited from selling anything they prescribe to their patients, optometrists, who are not MDs, are exempt from this prohibition, despite their financial conflict of interest. Because of the special nature of this marketplace, in which optometrists write prescriptions for contact lenses and then immediately seek to sell those lenses to that same patient, Congress passed the bipartisan FCLCA to protect contact wearers. The result was less market distortion and more competition, leading to more choices and lower prices for consumers.

The key change to the Contact Lens Rule proposed by the FTC is the addition of a requirement for optometrists to obtain a signed acknowledgement after providing a prescription to a patient. In making its proposal, the FTC carefully considered this question of burden on optometrists and determined that “any recordkeeping burden would be relatively minimal and outweighed by the benefit of having more patients in possession of their prescriptions… .” This change would help address the primary deficiency of the current system, which is that many optometrists routinely fail to automatically provide patients with a copy of their contact lens prescription as required by law.

This is not some unduly harsh regulatory edict – rather, it is a consumer-friendly and taxpayer-friendly adjustment to the Contact Lens Rule being proposed by the FTC that would incentivize optometrists to follow the law. As the FTC pointed out in its proposed rule, the proposed change “is likely to spur more competition and innovation among contact lens sellers and manufacturers.”

The language that was inserted into the Senate’s FSGG Appropriations bill, which is being pushed by the American Optometric Association (AOA), the lobbying group representing optometrists, would tilt the balance away from consumers’ and taxpayers’ interests and unfairly benefit optometrists who seek to sell more contact lenses to their patients.

We have dedicated decades of our work in Washington to fighting burdensome regulations, especially from the FTC. You can believe us when we say the FTC’s proposed update to the Contact Lens Rule is, in fact, pro-taxpayer, in that it provides for a free-market solution that can also help to control vision care costs. In the years ahead, both government employee insurance programs and public health care programs will face serious fiscal challenges. Congress must take caution against any restrictions that would hamper the development of service delivery models that could ease these challenges.

The Senate’s language effectively contemplates dragging Americans back into the last century and forcing them to suffer higher prices, less convenience, and higher costs, all for no real health benefit. The House’s FSGG bill wisely attempts to avoid such an approach. We hope you will strongly oppose the Senate’s position on changes to the Contact Lens Rule, thereby protecting taxpayers and consumers from restrictions that would deprive them of the benefits of marketplace innovation.

Sincerely,

Pete Sepp, President
National Taxpayers Union
 
Grover Norquist, President
Americans for Tax Reform
 
Chuck Muth, President
Citizen Outreach
 
Wayne Brough, Chief Economist and Vice President of Research
FreedomWorks
 
Andrew Langer, President
Institute for Liberty
 
Zach Graves, Director of Technology and Innovation Policy
R Street Institute
 
David Williams, President
Taxpayers Protection Alliance