[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



 
                 FAIRNESS TO CONTACT LENS CONSUMERS ACT
=======================================================================

                                HEARING

                               before the

                            SUBCOMMITTEE ON
                COMMERCE, TRADE, AND CONSUMER PROTECTION

                                 of the

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                                   on

                               H.R. 2221

                               __________

                           SEPTEMBER 12, 2003

                               __________

                           Serial No. 108-41

                               __________

      Printed for the use of the Committee on Energy and Commerce


 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house

                               __________




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                    COMMITTEE ON ENERGY AND COMMERCE

               W.J. ``BILLY'' TAUZIN, Louisiana, Chairman

MICHAEL BILIRAKIS, Florida           JOHN D. DINGELL, Michigan
JOE BARTON, Texas                      Ranking Member
FRED UPTON, Michigan                 HENRY A. WAXMAN, California
CLIFF STEARNS, Florida               EDWARD J. MARKEY, Massachusetts
PAUL E. GILLMOR, Ohio                RALPH M. HALL, Texas
JAMES C. GREENWOOD, Pennsylvania     RICK BOUCHER, Virginia
CHRISTOPHER COX, California          EDOLPHUS TOWNS, New York
NATHAN DEAL, Georgia                 FRANK PALLONE, Jr., New Jersey
RICHARD BURR, North Carolina         SHERROD BROWN, Ohio
  Vice Chairman                      BART GORDON, Tennessee
ED WHITFIELD, Kentucky               PETER DEUTSCH, Florida
CHARLIE NORWOOD, Georgia             BOBBY L. RUSH, Illinois
BARBARA CUBIN, Wyoming               ANNA G. ESHOO, California
JOHN SHIMKUS, Illinois               BART STUPAK, Michigan
HEATHER WILSON, New Mexico           ELIOT L. ENGEL, New York
JOHN B. SHADEGG, Arizona             ALBERT R. WYNN, Maryland
CHARLES W. ``CHIP'' PICKERING,       GENE GREEN, Texas
Mississippi                          KAREN McCARTHY, Missouri
VITO FOSSELLA, New York              TED STRICKLAND, Ohio
ROY BLUNT, Missouri                  DIANA DeGETTE, Colorado
STEVE BUYER, Indiana                 LOIS CAPPS, California
GEORGE RADANOVICH, California        MICHAEL F. DOYLE, Pennsylvania
CHARLES F. BASS, New Hampshire       CHRISTOPHER JOHN, Louisiana
JOSEPH R. PITTS, Pennsylvania        TOM ALLEN, Maine
MARY BONO, California                JIM DAVIS, Florida
GREG WALDEN, Oregon                  JAN SCHAKOWSKY, Illinois
LEE TERRY, Nebraska                  HILDA L. SOLIS, California
ERNIE FLETCHER, Kentucky
MIKE FERGUSON, New Jersey
MIKE ROGERS, Michigan
DARRELL E. ISSA, California
C.L. ``BUTCH'' OTTER, Idaho

                   Dan R. Brouillette, Staff Director

                   James D. Barnette, General Counsel

      Reid P.F. Stuntz, Minority Staff Director and Chief Counsel

                                 ______

        Subcommittee on Commerce, Trade, and Consumer Protection

                    CLIFF STEARNS, Florida, Chairman

FRED UPTON, Michigan                 JAN SCHAKOWSKY, Illinois
BARBARA CUBIN, Wyoming                 Ranking Member
JOHN SHIMKUS, Illinois               HILDA L. SOLIS, California
JOHN B. SHADEGG, Arizona             EDWARD J. MARKEY, Massachusetts
  Vice Chairman                      EDOLPHUS TOWNS, New York
GEORGE RADANOVICH, California        SHERROD BROWN, Ohio
CHARLES F. BASS, New Hampshire       JIM DAVIS, Florida
JOSEPH R. PITTS, Pennsylvania        PETER DEUTSCH, Florida
MARY BONO, California                BART STUPAK, Michigan
LEE TERRY, Nebraska                  GENE GREEN, Texas
ERNIE FLETCHER, Kentucky             KAREN McCARTHY, Missouri
MIKE FERGUSON, New Jersey            TED STRICKLAND, Ohio
DARRELL E. ISSA, California          DIANA DeGETTE, Colorado
C.L. ``BUTCH'' OTTER, Idaho          JOHN D. DINGELL, Michigan,
W.J. ``BILLY'' TAUZIN, Louisiana       (Ex Officio)
  (Ex Officio)

                                  (ii)




                            C O N T E N T S

                               __________
                                                                   Page

Testimony of:
    Beales, J. Howard, III, Director, Bureau of Consumer 
      Protection, Federal Trade Commission.......................     6
    Coon, Jonathan C., Chief Executive Officer, 1-800 Contacts...    12
    Cummings, J. Pat, Immediate Past President, American 
      Optometric Association.....................................   185
    Gadhia, Ami V., Consumers Union..............................   194
    Hubbard, Robert L., Director of Litigation, Antitrust Bureau, 
      Office of the New York Attorney General....................   189
    Martinez, Maria..............................................     5
    Venable, Peggy, State Director, Citizens for a Sound Economy.   207

                                 (iii)

  


                 FAIRNESS TO CONTACT LENS CONSUMERS ACT

                              ----------                              


                       TUESDAY, SEPTEMBER 9, 2003

              House of Representatives,    
              Committee on Energy and Commerce,    
                       Subcommittee on Commerce, Trade,    
                                   and Consumer Protection,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 1 p.m., in 
room 2123 of the Rayburn House Office Building, Hon. Cliff 
Stearns (chairman) presiding.
    Members present: Representatives Stearns, Shimkus, Terry, 
Schakowsky, and Green.
    Also present: Representative Burr.
    Staff present: Kelly Zerzan, majority counsel; Ramsen 
Betfarhad, policy coordinator; Jill Latham, legislative clerk; 
Jon Tripp, deputy communications director; and Jonathan 
Cordone, minority counsel.
    Mr. Stearns. The subcommittee will come to order. Without 
objection, the subcommittee will proceed pursuant to Committee 
Rule 4(e). So ordered. The Chair recognizes himself for an 
opening statement.
    My colleagues, welcome to this afternoon's hearing on H.R. 
2221, the Fairness to Contact Lens Consumers Act introduced by 
the committee's vice chairman, Congressman Richard Burr. 
Although Congressman Burr is not a member of the Commerce, 
Trade, and Consumer Protection Subcommittee, I believe he will 
be joining us.
    Today, 36 million Americans wear contact lenses. With 
advances in technology, consumers are offered a myriad of 
options for eye care, from disposable lenses used for just 1 
day, to lenses that can be used for a month, to lenses that can 
be used for a year.
    As the contact lens business has grown, so have the 
available outlets for buying contact lenses. Today, a consumer 
can go to Wal-Mart or Costco, the Internet, or to mail order 
companies to purchase these lenses. With such intense 
competition, contact lenses have become more affordable, making 
them more accessible and available to consumers.
    To buy and wear contact lenses, however, a consumer must 
have a prescription from a licensed doctor or an optometrist. 
It is at this point where the market has seen competitive 
obstacles erected that can make purchasing contact lenses from 
third party sellers more difficult.
    In my home State of Florida, a patient is entitled to a 
copy of his or her prescription if they request it. But around 
the country, as we will learn today, contact lens prescription 
release does not always happen as it should.
    We are fortunate to have with us Maria Martinez, a 
consumer, who will share with us her challenging experiences 
trying to get a copy of her contact lens prescription. As her 
story will illustrate, some eye doctors will refuse to release 
prescriptions or will condition release on the purchase of 
contact lenses from the doctor's practice. Clearly, these are 
anti-competitive practices that limit options and increase 
prices. H.R. 2221 is designed to eliminate this market-altering 
practice.
    In order for consumers to be best served, there should be 
responsibilities and commitments made by both sides of the 
prescription release transaction. Doctors should freely give 
patients their contact lens prescription and should promptly 
verify such prescriptions, and third party sellers should 
accurately provide patient information and allow a reasonable 
time for verification.
    I believe this bill is a step toward making the contact 
lens landscape truly competitive. Consumers deserve that. I 
look forward to hearing from our witnesses today.
    I yield back.
    With that, the gentleman from Texas is recognized.
    Mr. Green. Thank you, Mr. Chairman. I will put my full 
statement in the record.
    I agree with what you said. We need to make sure that that 
the law keeps up with the industry and the success we have had. 
I have some concern, though, that I don't want to treat contact 
lenses any different than I do any other prescription.
    Typically if I have a prescription from my physician for a 
certain type of medication, it may last 90 days or a year. And 
just because I may want to have it filled 1\1/2\ years later 
doesn't mean that that is possible.
    So I think we should have some type of definite way that 
there is verification on prescriptions because, again, I think 
the consumer needs to be able to shop around and have that 
opportunity, but I also know that we want to make sure that 
they are getting the contact lens or the prescription in other 
cases that will benefit them.
    And with that, again, I will put my full statement into the 
record. Thank you.
    Mr. Stearns. By unanimous consent, so ordered.
    [The prepared statement of Hon. Gene Green follows:]
  Prepared Statement of Hon. Gene Green, a Representative in Congress 
                        from the State of Texas
    Thank you, Chairman Stearns and Ranking Member Schakowsky, for 
holding this hearing on consumer access and competition in the contact 
lens industry.
    I also thank our panel of witnesses for being here today and offer 
a special welcome to my fellow Texans, Ms. Venable and Ms. Martinez.
    We appreciate your coming to share Texas's experience with this 
issue.
    Over the past twenty years, the market for contact lenses has grown 
and changed dramatically.
    The contact lenses worn today by 36 million Americans are far 
different from the hard contacts of the 1980s that had to be specially 
crafted and ordered for each individual patient.
    The mass manufacture of soft lenses has enabled more consumers to 
wear contacts and more companies to sell them.
    Without question, this increased access and competition is good for 
both consumers and business.
    Our colleague Mr. Burr has introduced a bill that is a good start 
toward ensuring that all contact lens wearers are given their 
prescriptions and allowed to shop around and find the best price for 
their contacts.
    Our good friends at the FTC have ensured that, by law, individuals 
must have access to their eyeglass prescriptions.
    In my view, contact lens wearers should be treated no differently--
the release of their prescriptions should not contingent upon a follow-
up exam or any future business by the consumer.
    Therefore, I agree wholeheartedly with the intent of the Fairness 
to Contact Lens Consumers Act, and I applaud Mr. Burr for taking on 
this issue. I do think, however, that any legislation guaranteeing 
consumers access to their prescriptions should provide doctors with a 
specific means of verifying them.
    If we mandate by federal law that consumers must be given their 
prescription but don't give sellers a uniform verification standard to 
follow, I worry that we would create a level of confusion that could 
negate the consumer benefits in this bill.
    I also think that the verification standard for contact lenses 
should follow that of any other prescription.
    The obvious difference between prescriptions for contact lens 
prescriptions and drugs, however, is that the pharmacy filling the 
prescription drug isn't in relying on its competitor for verification, 
since medical doctors cannot fill the prescriptions they write. So, we 
need to devise a standard that creates a level playing field for all 
contact lens sellers and allows consumers full and open access to them.
    In doing so, however, we also need to make sure that we encourage 
consumers to get regular eye exams. Increased access to contact lenses 
should not come at the expense of proper eye care.
    I am confident that the committee can work in a bi-partisan fashion 
to resolve these issues as well as some underlying enforcement 
concerns, and pass this consumer-friendly bill.
    Again, I thank our witnesses for appearing today and look forward 
to your testimony and the light it will shed on this important subject.
    With that, Mr. Chairman, I yield back the balance of my time.

    [Additional statements submitted for the record follow:]
 Prepared Statement of Hon. John Shimkus, a Representative in Congress 
                       from the State of Illinois
    Good Afternoon. Mr. Chairman, thank you for holding this hearing to 
address the importance of providing consumers more free-market access 
to goods--and as we will discuss in this particular hearing, contact 
lenses.
    I wear contact lenses and as a consumer I know that it has not been 
easy for consumers of contact lenses to have free market access to 
these products. I have always supported measures that decreased 
barriers for consumers and follow the philosophy that as a legislator 
less government intrusion into the marketplace is better for the 
American public.
    However, I applaud the work of our optometrists and 
ophthalmologists who provide excellent care to thousands of patients 
around the country and whose work cannot be replaced by mail order 
numbers and internet companies.
    But, I believe that patients should be given their prescription for 
contact lenses upon completion of an eye exam. The next step of this 
process is to determine the best way to verify and then distribute the 
lenses.
    I am interested to learn the benefits and detriments of the 
different ways to verify contact lens prescriptions--using either the 
positive or passive forms of verification.
    I look forward to hearing the testimony of our witnesses today. I 
hope that we are able to provide a competitive market for consumers 
while still protecting the interests and health of eye care patients. I 
yield back the remainder of my time.
                                 ______
                                 
 Prepared Statement of Hon. W.J. ``Billy'' Tauzin, Chairman. Committee 
                         on Energy and Commerce
    I'd like to begin by thanking the Chairman for holding this hearing 
today on H.R. 2221, the ``Fairness to Contact Lens Consumers Act''. I 
am an original sponsor of H.R. 2221, and I believe it is a strong piece 
of consumer protection legislation that will help Americans and their 
access to affordable eye care.
    Back in the 1970s, the Federal Trade Commission enacted a rule that 
required eye care professionals to provide patients with a copy of 
their eyeglasses prescription. That rule was necessary because doctors 
and optometrists would refuse to release prescriptions to consumers or 
would condition release on the purchase of eyeglasses. While the 
eyeglasses rule radically changed the competitive landscape--today 
there is vibrant competition among eyeglasses providers--contact lenses 
were not included in that rule.
    Today we see the same competitive problems festering in the contact 
lens marketplace as we saw in the eyeglasses market 25 years ago. In 
fact, the anticompetitive behavior by eye care professionals caught the 
attention of a number of state attorney's general who filed a complaint 
against the American Optometric Association alleging a conspiracy to 
eliminate the sale of contacts by pharmacies, mail order and other 
alternative sellers, and a conspiracy to prevent the release of contact 
lens prescriptions to consumers. This suit was settled, but it shows 
the extent of distrust for how contact lenses are currently dispensed 
by eye doctors and optometrists.
    Unlike other areas of medicine where doctors are prohibited from 
selling the drugs they prescribe, optometrists and eye doctors can and 
do sell the contact lenses they prescribe. What this means is third 
party sellers are forced to ask the eye doctors, their competitors, for 
permission to make a sale. This sets up a classic conflict of interest 
that robs the consumer of the ability to shop competitively for the 
best price. Thankfully, H.R. 2221 is a step toward resolution.
    H.R. 2221, the ``Fairness to Contact Lens Consumers Act'' takes the 
necessary steps to remedy this stranglehold on contact lens 
competition. This bill takes aim at all sides of the problem: it 
mandates that doctors and optometrists release a consumer's contact 
lens prescription, and cracks down on fly-by-night sellers who try to 
sell contact lenses without a prescription.
    H.R. 2221 not only sparks competition in the sale of contact 
lenses, but it is consistent with the protection of consumers' health. 
Price competition and service innovation in the contact lens market has 
increased with the entry of third party sellers. With the increased 
availability of affordable contact lenses, consumers will arguably 
changes their lenses more frequently, resulting in increased ocular 
health.
    I look forward to hearing from our witnesses, and urge my 
colleagues to support H.R. 2221. I yield back my time.
                                 ______
                                 
Prepared Statement of Hon. Hilda L. Solis, a Representative in Congress 
                      from the State of California
    Good afternoon. I would like to thank all the witnesses, especially 
Mr. Howard Beales from the Federal Trade Commission, and Mr. Robert 
Hubbard from the New York Attorney General's Office, for being here 
today to discuss the issues relating to contact lens consumers 
protection.
    I believe it is important to recognize the tremendous growth not 
only in the contact lens business, but also in the number of Americans 
opting for contact lenses over glasses. Currently, there are over 36 
million Americans wearing contact lenses. We must keep up with these 
technological trends within medicine by implementing sound legislation 
to address these advances.
    I look forward to hearing from our distinguished group of witnesses 
today, and to continue our efforts to discuss the issues relating to 
contact lens consumer protection.
    Thank you and I yield back the balance of my time.

    Mr. Stearns. With that, we will move to the witness list. 
We welcome Ms. Maria Martinez, appreciate you coming and 
sharing your story with us; and, again, Mr. Howard Beales, 
Director, Bureau of Consumer Protection, FTC;--thank him for 
coming--Mr. Jonathan Coon, Chief Executive Officer, 1-800 
Contacts; Dr. J. Pat Cummings, immediate Past President, the 
American Optometric Association; Mr. Robert Hubbard, Director 
of Litigation, Antitrust Bureau, Office of the New York 
Attorney General; Ms. Ami Gadhia, Consumers Union; and Ms. 
Peggy Venable, the State Director, Citizens for a Sound 
Economy. I welcome all of you. And we'll start, Maria, with 
you. And we appreciate your attendance.

 STATEMENTS OF MARIA MARTINEZ; J. HOWARD BEALES III, DIRECTOR, 
   BUREAU OF CONSUMER PROTECTION, FEDERAL TRADE COMMISSION; 
 JONATHAN C. COON, CHIEF EXECUTIVE OFFICER, 1-800 CONTACTS; J. 
  PAT CUMMINGS, IMMEDIATE PAST PRESIDENT, AMERICAN OPTOMETRIC 
    ASSOCIATION; ROBERT L. HUBBARD, DIRECTOR OF LITIGATION, 
ANTITRUST BUREAU, OFFICE OF THE NEW YORK ATTORNEY GENERAL; AMI 
V. GADHIA, CONSUMERS UNION; AND PEGGY VENABLE, STATE DIRECTOR, 
                  CITIZENS FOR A SOUND ECONOMY

    Ms. Martinez. Thank you, chairman and committee members. It 
is an honor to testify before you today.
    My name is Maria Martinez. And I am from Austin, Texas. I 
have been a contact lens wearer for over 20 years. I have 
endured firsthand the effects of the lack of competition within 
the contact lens market. I have paid up to and above $300 every 
time I purchase a set of contact lenses and must say I am 
looking for some relief. This, of course, frequently mandated 
how often I replace my lenses. And I, of course, are limited 
because the length that the prescription before it expires 
lasts is 1 year.
    I have a family of two children, and we are all contact 
lens wearers in my family. What I would like to just voice here 
is I am frustrated by the 1-year prescription period. Of 
course, with three contact lens wearer in the family, it is far 
too costly for me to keep up with.
    In addition to this, I have interviewed other contact lens 
wearers in my State just to find out their experiences. And I 
found that they were denied the ability to obtain the 
prescriptions. While for me it has been costly, I have not been 
given a choice as to whether I could secure my prescription 
and, therefore, go out and find it at a lower cost.
    Some of the individuals that I talked to said that when 
they tried to obtain the prescription from their eye care 
provider, they were stalled until their prescription expired 
and then they were unable to obtain it and had to go back to 
obtain another prescription and pay the cost for another eye 
exam. They felt they were treated deceptively in that way. 
Other individuals I talked to eventually gave up and just 
ultimately paid that higher price, rather than seek lenses from 
an alternative provider.
    A lady that I spoke to said that when she tried to get her 
prescription for contact lenses, instead of a contact lens 
prescription, we received a prescription for eyeglasses. And, 
unfortunately, this individual was never given an exam for 
eyeglasses with that particular physician. So there should not 
have been a prescription for eyeglasses on file for her. So 
ultimately she was forced to do without.
    I just would urge this committee to support H.R. 2221 so 
that it would promote competition in the contact lens market 
and treat contact lens prescriptions equal to that of those for 
eyeglasses.
    Thank you.
    Mr. Stearns. Thank you.
    Mr. Beales, welcome.

               STATEMENT OF J. HOWARD BEALES III

    Mr. Beales. Thank you, Mr. Chairman, members of the 
subcommittee. I am Howard Beales, the Director of the Federal 
Trade Commission's Bureau of Consumer Protection. I am pleased 
to present the views of the Commission this afternoon.
    I am happy to provide comments on the Fairness to Contact 
Lens Consumers Act. First, I would like to briefly discuss the 
Commission's mission and our long history of activity in the 
eye care industry. Then I will provide some specific comments 
on the bill.
    As the Federal Government's principal consumer protection 
agency, the Commission has a long history of activity in the 
eye care industry. Through law enforcement, advocacy before 
other government agencies, and rulemaking, the Commission 
promotes vigorous competition and consumer choice, thereby 
increasing consumer welfare.
    Many of the FTC's law enforcement efforts concerning eye 
care have focused on ensuring that consumers have access to 
truthful, non-misleading information about the eye care 
products they need. For example, the Commission recently issued 
final consent orders against two of the largest purveyors of 
LASIK eye surgery services, the most common elective surgery in 
the United States. In these cases, the Commission challenged as 
unsubstantiated claims that LASIK surgery would eliminate the 
need for glasses or contacts for life and that LASIK surgery 
poses significantly less risk to patients' eye health than 
wearing contact lenses or glasses. Our cases have enhanced the 
ability of consumers to make better-informed choices concerning 
eye care products.
    The Commission also has pursued numerous advocacy 
opportunities involving the eye care industry. Most recently, 
in October of 2002, the Commission held a public workshop to 
evaluate possible anti-competitive barriers to electronic 
commerce in contact lenses and nine other industries.
    Commission staff heard testimony from all sides of the 
contact lens issue. The Commission staff will report on the 
workshop and the extent to which anti-competitive barriers to 
e-commerce exist in this industry.
    Turning to the bill, the Commission supports the proposed 
legislation's goal of promoting greater competition among 
contact lens sellers and thereby enhancing consumer choice. We 
have comments on three components of the bill.
    First, the bill requires that eye care practitioners verify 
a patient's contact lens prescription. The bill, however, does 
not adopt a particular approach to verification. At its e-
commerce workshop, the Commission explored the costs and 
benefits of two different approaches to prescription 
verification: passive or active.
    Proponents of passive verification favor this approach 
because it allows the seller to presume verification if the eye 
care practitioner does not take affirmative action to correct 
any errors in the prescription. These proponents point to 
difficulties with an active verification regime, such as a low 
response rate or delayed responses by eye care practitioners.
    By contrast, proponents of active verification systems 
express concern that passive verification may allow sellers to 
ship contact lenses even if the customer has an invalid or 
incorrect prescription. According to proponents of active 
verification, customers may face serious health risks if they 
obtain and wear contact lenses based on such a prescription.
    The Commission believes that the bill should identify with 
specificity the type of verification system that would be 
required. Absent such specificity, the Commission would be in 
the difficult position of interpreting the law to determine 
what types of verification systems would be acceptable. If the 
bill directly and specifically addressed the issue of an 
acceptable verification system, consumers would also receive 
the bill's benefits more quickly than if the Commission first 
had to compile information about various systems, analyze the 
costs and benefits of these systems, and decide which systems 
are acceptable.
    Second, the bill also requires the FTC to undertake a study 
and prepare a report within 9 months examining the strength of 
competition in the market for prescription contact lenses. The 
FTC study requirement involves issues well outside the 
Commission's expertise, particularly the health effects of 
different verification schemes, and would be very difficult to 
complete within 9 months. Accordingly, the Commission 
respectfully requests that it be eliminated.
    Third, the bill would require that ophthalmologists and 
optometrists release contact lens prescriptions to their 
patients and any person designated to act on their patients' 
behalf upon completion of a contact lens fitting. The 
Commission believes that the availability of contact lens 
prescriptions benefits consumers because it gives patients the 
option of purchasing contact lenses from sellers other than the 
eye care practitioner who wrote their prescription.
    More than two-thirds of the States already require that 
prescribers release contact lens prescriptions to patients. 
Although it is unclear how frequently consumers do not obtain 
their contact lens prescriptions, the Commission's experience 
in this area suggests that the costs associated with a contact 
lens prescription release requirement are likely to be quite 
low. A requirement may not be necessary, but the Commission 
does not oppose it.
    Thank you for this opportunity to testify today. And I look 
forward to answering any questions you may have.
    [The prepared statement of J. Howard Beales III follows:]
   Prepared Statement of Howard Beales, Director, Bureau of Consumer 
                  Protection, Federal Trade Commission
                            i. introduction
    Mr. Chairman and members of the Committee, I am Howard Beales, 
Director of the Bureau of Consumer Protection at the Federal Trade 
Commission (``Commission'' or ``FTC''). The Commission is pleased to 
provide information concerning the contact lens industry and offer 
comments on the Fairness to Contact Lens Consumers Act (H.R. 2221) 
(``the bill''). I will discuss the Commission's mission and our long 
history of activity in the eye care industry, and provide some specific 
comments on the bill.1
---------------------------------------------------------------------------
    \1\ The views expressed in this statement represent the views of 
the Commission. My oral statements and responses to any questions you 
may have represent my own views, and not necessarily the views of the 
Commission or any Commissioner.
---------------------------------------------------------------------------
    As the federal government's principal consumer protection agency, 
the FTC's mission is to promote the efficient functioning of the 
marketplace by enforcing laws against unfair or deceptive acts or 
practices in or affecting commerce.2 Pursuant to its 
statutory mandate, the Commission increases consumer choice by 
promoting vigorous competition. The Commission has extensive experience 
assessing the impact of regulation and business practices on 
competition and consumers in many industries, including, as discussed 
below, substantial experience with eyeglasses, contact lenses, and 
other eye care goods and services.
---------------------------------------------------------------------------
    \2\  Federal Trade Commission Act, 15 U.S.C. 45, 52.
---------------------------------------------------------------------------
                    ii. the contact lens marketplace
    The contact lens market in the United States is a multi-billion 
dollar market.3 Recent data indicate that nearly 36 million 
Americans--almost 13% of all Americans--wear contact 
lenses.4 There are numerous manufacturers of contact lenses 
(e.g., Johnson & Johnson, Bausch & Lomb, and CIBA Vision) and many 
different channels of distribution, including eye care practitioners 
(e.g., ophthalmologists and optometrists), national and regional 
optical chains, mass merchants (e.g., Wal-Mart and Costco), and mail 
order and Internet firms.
---------------------------------------------------------------------------
    \3\ Annual sales estimates range from $1.95 billion to $3.5 
billion.
    \4\ See Health Products Research (VIS)--Annual 2000 Year-End 
Consumer Contact Lens Survey (cited in ``Trends in Contact Lenses & 
Lens Care,'' The Bausch & Lomb Annual Report to Vision Care 
Professionals (Dec. 2001)).
---------------------------------------------------------------------------
    The contact lens market has undergone significant change in recent 
years. In the past, for example, contact lenses were designed to last 
for long periods of time, required daily removal, and involved 
extensive cleaning regimens. Consumers generally purchased these lenses 
from their eye care practitioners after an eye exam and lens fitting 
and then replaced them, for example, when the prescription changed or a 
contact lens was lost or damaged. Manufacturers had not developed 
production methods for lenses that provided standardized reproduction.
    Beginning in the late 1980s, lens manufacturers began to market and 
sell ``disposable'' and ``frequent replacement'' soft contact lenses, 
which are designed to be replaced daily, weekly, or monthly. Today, the 
replacement soft contact lenses that a patient receives pursuant to a 
prescription specifying brand and power will be the same, regardless of 
whether the patient buys the lenses from an eye care practitioner or 
another seller.
    The development of standardized lenses has facilitated the growth 
of sellers other than eye care practitioners. These sellers tend to 
focus on the sale of replacement lenses for which an eye care 
professional has already fitted the customer. Unlike many eye care 
practitioners, these sellers do not sell eyeglasses, and do not 
fabricate contact lenses or fit them to the eye. Their business 
consists simply of shipping to customers lenses that come from the 
manufacturer in sealed boxes labeled with the relevant specifications. 
Many of these sellers are located in a single state but ship orders to 
customers nationwide.
    The advent of disposable soft contact lenses, followed by the 
growth of ``alternative'' retail sources of contact lenses, including 
mail order, pharmacy and mass merchants, has changed the market. Eye 
care practitioners still write prescriptions, but now consumers 
purchase more contact lenses with greater frequency. Moreover, they 
have greater choice of sellers and means of delivery when they purchase 
lenses.
    Consumer choice in the contact lens market is expanding, and that 
can have important benefits to consumers. Competition among contact 
lens sellers benefits consumers through lower prices, greater 
convenience, and improved product quality.
  iii. overview of ftc's authority and history of activity in the eye 
                             care industry
    The Commission has a long history of activity in the eye care 
industry--through law enforcement, advocacy before other government 
agencies, and rulemaking. The underlying objective of these various 
activities is to promote vigorous competition and consumer choice, 
thereby increasing consumer welfare.
A. Law Enforcement
    Many of the FTC's law enforcement efforts concerning eye care have 
focused on ensuring that consumers have access to truthful, non-
misleading information about the eye care products they need. Until the 
1980s many government boards and trade associations imposed 
restrictions on the ability of eye care practitioners to provide 
truthful and non-misleading advertising about their goods and services. 
The Commission brought law enforcement actions challenging some of 
these advertising restrictions as anticompetitive. For example, in 
Massachusetts Board of Registration in Optometry,5 the 
Commission challenged a state optometry board's regulations restricting 
advertising of price discounts, the advertisement of affiliations 
between optometrists and retail optical stores, and the use of 
testimonials and similar forms of advertising. The FTC concluded that 
these restrictions did not serve a legitimate purpose and were 
anticompetitive, and ordered the board to cease and desist from 
imposing such restrictions on advertising by optometrists. Removing 
such advertising restrictions has allowed sellers of eye care goods and 
services to compete more aggressively with each other.
---------------------------------------------------------------------------
    \5\ 110 F.T.C. 549, 606-08 (1988).
---------------------------------------------------------------------------
    Increased competition among sellers through advertising, however, 
does not benefit consumers if the claims made in the ads are false or 
misleading. To prevent such claims from being made in the marketplace, 
the FTC sued sellers who have made deceptive advertising claims for eye 
care products. For example, the Commission recently issued final 
consent orders against two of the largest purveyors of LASIK eye 
surgery services, the most common elective surgery in the United 
States.6 In these cases, the Commission challenged as 
unsubstantiated claims that LASIK surgery would eliminate the need for 
glasses or contacts for life, and that LASIK surgery poses 
significantly less risk to patients' ocular health than wearing contact 
lenses or glasses. Our cases have enhanced the ability of consumers to 
make better-informed choices concerning eye care products.
---------------------------------------------------------------------------
    \6\ LCA-Vision, Inc. d/b/a LasikPlus, Dkt. No. C-4083 (July 11, 
2003) (consent) and The Laser Vision Institute, LLC, Dkt. No. C-4084 
(July 11, 2003) (consent). LASIK is designed to reduce dependence on 
eyeglasses and contact lenses for distance and near vision by changing 
the shape of the cornea.
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B. Advocacy
    The Commission also has pursued numerous advocacy opportunities 
involving the eye care industry. In 2002, the Commission staff filed a 
comment before the Connecticut Board of Examiners for Opticians 
addressing whether state law requires that out-of-state sellers obtain 
a license to sell contact lenses to the state's residents. FTC staff 
argued that out-of-state sellers should not be subject to state 
licensing requirements because the possible benefit to consumers from 
increased state protection did not outweigh the likely negative effect 
from decreased competition.7 Ultimately, the Board held that 
state law did not require out-of-state sellers to obtain a license to 
sell contact lenses to consumers.8
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    \7\ FTC Staff Comment Before the Connecticut Board of Examiners for 
Opticians (Mar. 27, 2002), available at .
    \8\ Connecticut Board of Examiners for Opticians, In re: Petition 
for Declaratory Ruling Concerning Sales of Contact Lenses, Declaratory 
Ruling Memorandum of Decision (June 24, 2003).
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    Similarly, in April 2003, the Commission submitted comments to the 
Tennessee state legislature on proposed legislation that would have 
restricted the types of agreements that optometrists can make with 
commercial firms from which they lease space.9 The FTC 
opposed these restrictions, explaining that they decrease competition 
among sellers of eye care products, especially competition from chain 
optical stores, without any offsetting benefits to consumers.
---------------------------------------------------------------------------
    \9\ Letter from Timothy J. Muris, Chairman, Federal Trade 
Commission, to Hon. Ward Crutchfield, Senate Majority Leader, (Apr. 29, 
2003), available at .
---------------------------------------------------------------------------
    In October 2002, the Commission held a public workshop to evaluate 
possible anticompetitive barriers to e-commerce in contact lenses and 
nine other industries.10 Commission staff heard testimony 
from all sides of the contact lens issue, including eye care 
practitioners, a major contact lens manufacturer, an online seller, a 
traditional contact lens seller, and an economics professor. In 
addition, Commission staff gathered evidence from a wide variety of 
sources, such as empirical studies, court proceedings, state attorneys 
general, and the Food and Drug Administration. Commission staff will 
report on the information obtained in connection with the workshop and 
the extent to which anticompetitive barriers to e-commerce exist in the 
contact lens industry.
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    \10\ 67 Fed. Reg. 48,472 (2002).
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                             c. rulemaking
    In 1978, to increase competition in the sale of eyeglasses, the 
Commission promulgated the Ophthalmic Practice Rule (``Prescription 
Release Rule''). The Rule requires optometrists and ophthalmologists to 
provide patients, at no extra cost, with a copy of their eyeglass 
prescription after completion of an eye exam.11 The Rule was 
based on the Commission's findings that many consumers were deterred 
from comparison shopping for eyeglasses because they did not receive a 
copy of their prescription. Some eye care practitioners refused to 
release prescriptions, even when requested to do so, while others 
charged an additional fee for release of a prescription. The Commission 
also found a lack of consumer awareness that purchasing eyeglasses can 
be separated from the process of obtaining an eye exam. As part of its 
program of systematic analysis of its rules and guides, the Commission 
currently is conducting a review of the overall costs and benefits of 
the Prescription Release Rule.
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    \11\ 16 C.F.R. Part 456. The original rule also prohibited bans on 
nondeceptive advertising by vision care providers. That portion of the 
rule was remanded to the Commission for further consideration in light 
of the Supreme Court decision in Bates v. State Bar of Arizona, 433 
U.S. 350 (1977). American Optometric Ass'n v. FTC, 626 F.2d 896 (D.C. 
Cir. 1980). The Commission has since taken action against such 
restrictions through administrative litigation, on a case-by-case 
basis.
---------------------------------------------------------------------------
    One noteworthy issue is whether the Rule should be extended to 
require eye care practitioners to release contact lens prescriptions to 
patients.12 The Rule currently does not require an 
optometrist or ophthalmologist to release a contact lens prescription 
to a patient after an eye exam. The Commission previously has 
considered this issue but declined to extend the Rule to contact 
lenses. In 1989, the Commission found there was not sufficient reliable 
evidence from which to conclude that the practice of not releasing 
contact lens prescriptions upon request was prevalent.13 In 
1995, in response to a petition for rulemaking, the Commission reached 
a similar conclusion after conducting a survey on the extent to which 
patients could obtain their contact lens prescriptions.14
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    \12\ See Request for Public Comments, 62 Fed. Reg. 15,865 (Apr. 3, 
1997).
    \13\ Ophthalmic Practice Rules, Final Trade Regulation Rule, 54 
Fed. Reg. 10,285, 10,299, 10,303 (Mar. 13, 1989).
    \14\ Letter from Federal Trade Commission to H. Jeff McLeod, Re: 
Petition to Initiate Rulemaking to Require the Release of the Contact 
Lens Prescription (June 29, 1995) (on FTC Public Record, Document No. 
B174817).
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    Commission staff is monitoring the significant ongoing changes in 
the contact lens marketplace relevant to issues raised in the rule 
review, including the growth of alternate sellers of replacement 
contact lenses, state legislation requiring contact lens prescription 
release and verification, and proposed federal legislation addressing 
prescription release and verification issues.
     iv. h.r. 2221: the ``fairness to contact lens consumers act''
    Drawing on its experience with the eye care industry, the 
Commission welcomes the opportunity to provide its views on The 
Fairness to Contact Lens Consumers Act. The bill would require that 
ophthalmologists and optometrists release contact lens prescriptions to 
their patients and verify contact lens prescriptions for Internet 
sellers and other third parties. The bill would provide for FTC 
enforcement of these requirements. The Commission supports the proposed 
legislation's goal of promoting greater competition among contact lens 
sellers and thereby enhancing consumer choice. We have comments on 
three components of the bill.
A. Prescription Verification
    First, a central requirement of the bill is that eye care 
practitioners verify a patient's contact lens prescription ``as 
directed by any person designated to act on behalf of the patient.'' 
15 This provision appears aimed at helping patients who seek 
to purchase contact lenses from a seller other than their own eye care 
practitioner. Eye care practitioners would be prohibited from refusing 
to verify prescription information to a third-party seller, such as a 
mail order or Internet seller, thus facilitating competition between 
eye care practitioners and third-party sellers.
---------------------------------------------------------------------------
    \15\ H.R. 2221, Sec. 2(a)(2).
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    The bill does not impose a particular approach to verification. 
There are two primary approaches to verification: ``passive'' and 
``active'' verification.16 Under a passive verification 
system, a third-party seller must notify the eye care practitioner of 
its customer's request to purchase contact lenses and inform the 
practitioner what prescription information the customer has provided. 
Unless the eye care practitioner affirmatively notifies the seller 
within a specified time period that the prescription is incorrect, 
expired, or otherwise problematic, the seller may presume that the 
prescription is correct and valid and complete the sale to the patient. 
By contrast, under an active verification system, the third-party 
seller must wait for affirmative confirmation from the prescriber that 
the prescription is correct and valid before it can complete the sale.
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    \16\ States have taken different approaches to verification of 
prescriptions. California, for example, has adopted a passive 
verification regime, Cal. Bus. & Prof. Code  2546.6(a), while Texas 
has adopted an active verification system. Texas statute Sec. 351.607.; 
Tex Adm. Code.  279.2(e).
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    At its E-Commerce Workshop, the Commission explored the costs and 
benefits of these two approaches to prescription 
verification.17 Proponents of passive verification 
(including many alternative sellers of contact lenses like mail order 
and Internet sellers) favor this approach because it allows the seller 
to presume verification if the eye care practitioner does not take 
affirmative action to correct any errors in the prescription. These 
proponents point to difficulties with an active verification regime, 
such as low response rates or delayed responses by eye care 
practitioners who have an incentive to impede verification so that 
their patients will continue to buy contact lenses from them. By 
contrast, proponents of active verification (including some groups 
representing eye care practitioners) express concern that passive 
verification allows sellers to ship contact lenses even if the customer 
has an invalid or incorrect prescription. According to proponents of 
active verification, customers may face serious health risks if they 
obtain and wear contact lenses based on an invalid or incorrect 
prescription.
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    \17\ The choice of a time period in verification systems is a 
contentious issue, with Internet and mail order sellers generally 
seeking shorter time periods and eye care practitioners typically 
seeking longer time periods.
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    The Commission believes that the bill should identify with 
specificity the type of verification system that would be required. 
Absent such specificity, the Commission would be in the difficult 
position of interpreting the law to determine what types of 
verification systems would be acceptable. If the bill directly and 
specifically addressed the issue of an acceptable verification system, 
consumers also would receive the bill's benefits more quickly than if 
the Commission first had to compile information about various systems, 
analyze the costs and benefits of these systems, and decide which 
systems are acceptable.
B. FTC Study
    The bill also requires that the FTC undertake a study and prepare a 
report, within nine months, examining the strength of competition in 
the market for prescription contact lenses. The study would address 
several specific issues such as: the merits of active versus passive 
verification; compliance with and enforcement of state verification 
laws; and the effects of these state laws on competition and ocular 
health. In addition, the study would address the costs and benefits of 
the practice of writing prescriptions for ``private label lenses,'' 
that is, prescriptions written for contact lenses that only the 
prescribing eye care practitioner sells.
    The FTC study requirement implicates issues well outside the 
Commission's expertise, such as the effect of state verification laws 
on ocular health. It also would be very difficult to complete within 
nine months the broad study that the bill would require. Given the 
scope and burden of the study requirement in the bill, the Commission 
respectfully requests that it be eliminated.
C. Prescription Release Requirement
    Third, the bill would require that ophthalmologists and 
optometrists release contact lens prescriptions to their patients, and 
any person designated to act on their behalf, upon completion of a 
contact lens fitting.18 The Commission believes that the 
availability of contact lens prescriptions benefits consumers because 
it gives patients the option of purchasing contact lenses from sellers 
other than the eye care practitioner who wrote their 
prescription.19
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    \18\ H.R. 2221, Sec. 2(a).
    \19\ Release of prescriptions by eye care practitioners to agents 
of consumers, such as mail order and Internet sellers, also may promote 
competition.
---------------------------------------------------------------------------
    More than two-thirds of the states already require that prescribers 
release contact lens prescriptions to patients.20 Some 
states require the release of prescriptions upon request by the 
patient, while other states require release automatically, regardless 
of whether the patient requests it. Moreover, a survey conducted by the 
Commission in 1995 indicated that most consumers who requested their 
prescription were able to obtain it.21 Nevertheless, there 
is anecdotal evidence that some patients have been unable to obtain a 
copy of their contact lens prescription.22
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    \20\ We understand these states to be: Alabama, Arizona, Arkansas, 
California, Colorado, Connecticut, Delaware, Florida, Georgia, Indiana, 
Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, 
Minnesota, Nebraska, New Hampshire, New Jersey, New Mexico, New York, 
North Carolina, Ohio, Oklahoma, Oregon, South Dakota, Texas, Utah, 
Vermont, Virginia, Washington, Wisconsin, and Wyoming. Some states 
require prescription release by statute, while others do so through 
rules.
    \21\ Bruskin/Goldring Research, Contact Lenses, prepared for 
Federal Trade Commission (Feb. 1995) (available on the FTC public 
record, Document No. B174829). However, the Commission has not studied 
the extent to which agents of consumers have been unable to obtain 
release of prescriptions.
    \22\ In addition, we note that the Attorneys General of 31 states 
filed suit in 1996 alleging, in part, a conspiracy among practitioners 
and their trade associations to prevent the release of contact lens 
prescriptions to consumers. See In re Disposable Contact Lens Antitrust 
Litigation, No. 94-MDL 1030-J-20A (M.D. Fla.). The case ultimately 
settled.
---------------------------------------------------------------------------
    Although it is unclear to what extent consumers currently do not 
obtain their contact lens prescriptions, the Commission's experience 
with the prescription release requirements for eyeglasses suggests that 
the costs associated with a contact lens prescription release 
requirement are likely to be quite low. Accordingly, the FTC does not 
oppose such a requirement.23
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    \23\ The Commission also recommends that the bill clarify which 
state law would apply for purposes of determining the expiration date 
for contact lens prescriptions. See H.R. 2221, Sec. 3(a). As written, 
the state law ``involved'' could be interpreted many ways, including to 
mean the state where the prescription was written, the state where the 
prescription was filled, or the state where the patient lives.
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                             v. conclusion
    The Commission appreciates this opportunity to present its views on 
the Fairness to Contact Lens Consumers Act, H.R. 2221. I look forward 
to answering any questions you may have.

    Mr. Stearns. Mr. Coon, we welcome your opening statement.

                   STATEMENT OF JONATHAN COON

    Mr. Coon. Thank you, Mr. Chairman and members of the 
committee, for investing the time to learn more about this 
issue that affects 35 million Americans and the 3 million 
customers that purchase from our company.
    The core issue here really is that eye doctors sell what 
they prescribe. That's the key thing that differentiates this 
area of health care from almost any other area of health care. 
Eye doctors sell and profit from the products that they write 
prescriptions for. And that creates quite a few conflicts for 
the consumer.
    If eye doctors didn't sell what they prescribe, consumers 
wouldn't need the protections that are in the Burr bill, H.R. 
2221. The verification process, for instance, with medical 
doctors and pharmacies isn't defined. And it doesn't need to be 
defined because they don't compete with each other. Medical 
doctors don't sell drugs. Medical doctors don't own pharmacies. 
People don't buy medicine from their doctors. There aren't 
competing sellers for the doctor because the doctor doesn't 
compete.
    So when somebody goes to a pharmacy to get a prescription 
filled, there's no trouble getting a prescription released 
because a doctor has no motivation not to release the 
prescription. And there's no trouble with the pharmacy getting 
a response from a medical doctor because a medical doctor has 
no economic motivation to delay or to not respond to the 
pharmacy because, again, the medical doctor doesn't own his own 
pharmacy.
    I think this conflict is really best demonstrated by some 
of the industry advertisements that we see. We would like to 
submit some of these for the record. Some of these statements 
are things that are not said publicly by the optometric trade, 
but they are said in their private trade journals.
    This is an example called ``Winning the War Against Mail 
Order Contact Lenses.'' A key quote from here says, ``When you 
get a telephone inquiry for a patient's contact lens 
prescription, recognize it as an opportunity for a sale.'' Now, 
when my medical doctor gets a call from my pharmacy, I don't 
think he recognizes it as an opportunity to make a sale because 
he doesn't sell drugs.
    Another ad talks about the focus on making money and 
profit. This is from a manufacturer that sells their products 
only to eye doctors who prescribe them. The headline of the ad 
says, ``Let's See. You'll Make More Money.'' The line at the 
bottom says, ``Since our lenses are only available through your 
practice, you will get what you are looking for: increased 
patient loyalty and greater profitability.
    Now, drugs are not marketed to doctors on the basis that a 
doctor will make more profit as a result of writing a 
prescription for that drug. I think these just kind of 
highlight some of the differences. And I will go through just a 
couple of more very quickly.
    In this ad, which is actually particularly humorous if you 
only look at one, this is a pretty good one. It says, ``Every 
Tom, Dick, and Harry is offering your patients low-priced 
disposables. The system is broken'' as if competitors offering 
lower prices, there is something wrong with the system when 
that is happening.
    And this last one really highlights verification. When our 
company gets an order from the consumer, that consumer is 
essentially asking their eye doctor to grant permission to a 
competitor of the eye doctor to make a sale to that consumer. 
This is highlighted here, a quote from a doctor, an eye doctor, 
that says, ``We would get calls from patients in 1-800-CONTACTS 
asking us for their contact lens prescriptions. I wanted to use 
another strategy to stop that from happening.'' So, again, my 
medical doctor doesn't want to stop pharmacies from calling a 
medical doctor because that is part of the health care service 
that my doctor provides to me.
    Now, I would say that, despite articles and ads like these 
and other anti-competitive tactics, there is a lot of common 
ground here. We agree on release, that consumers should have a 
right to their prescription. We agree that sellers should 
verify prescriptions. And we agree that eye doctors should 
respond to those verification requests. Where we disagree is on 
verification, particularly how long the consumer should wait 
for an eye doctor to respond to a verification request from a 
competing seller.
    I need to emphasize how important verification is, in 
addition to release, because most of our consumers need their 
prescription verified. The typical experience for a customer is 
that they call; they read their information, which is in the 
box. Lenses typically, like these, only come in one size. This 
is one size fits all. It comes in different powers depending on 
how much visual crutch you need, but it only comes in one size. 
And they'll read us their brand, their size, and their power 
off the package.
    Now, we need to verify that prescription with the doctor's 
office. We require a doctor's valid name and phone number. And 
we contact the doctor's office to verify the prescription. 
Meanwhile, the consumer is waiting.
    There are really two different systems for verification 
that I think you will hear described today. One is positive 
verification. Under that system, the consumer waits 
indefinitely for an eye doctor to respond to a competitor's 
request to sell to their customer. And under a presumed 
verification, the consumer waits a defined period of time after 
which if the doctor hasn't corrected any errors or indicated 
that there is a problem, the consumer is able to get her 
lenses.
    Now, in either system, in either system, the eye doctor can 
stop a consumer from getting lenses if the prescription is 
invalid or if there is an error with the prescription. Under 
one system, the doctor can stop orders for any reason under a 
positive verification system by doing nothing at all and simply 
ignoring the request.
    Under a presumed verification system, which is the law in 
California and is our system Nationwide with Johnson and 
Johnson on 40 percent of our orders, the doctor actually has to 
actively respond to say if there's a problem with the order. 
But under either case, a consumer with an invalid prescription, 
the doctor can respond.
    The results of the two systems are dramatically different. 
We heard from one consumer from Texas. We have had over 50,000 
consumers denied their right to purchase from us in the last 
year for no other reason--and this is over half our orders in 
the State of Texas--denied for no other reason than that their 
eye doctor refused to respond to a written prescription request 
that we sent by fax and had confirmed.
    So the other system is California. It's a presumed system. 
It's the law in the State and--I'm over on time. So I'll 
prepare to wrap up here pretty quick.
    Mr. Stearns. We'll just have you summarize.
    Mr. Coon. Sorry. Well, some of the things that I would like 
to, I will just submit some of the things that we have.
    Mr. Stearns. Yes. And by unanimous consent, we'll make it--
--
    Mr. Coon. Yes. We'll submit some lenses and then just point 
out--I'll submit the advertisements. There's also a letter from 
the California Optometric Association endorsing presumed 
verification as a safe and reasonable standard that strikes a 
balance between access and accountability. And I'll submit 
those for the record.
    Mr. Stearns. All right. We will make those part of the 
record. By unanimous consent, so ordered.
    [The prepared statement of Jonathan Coon and additional 
submitted material follows:]
  Prepared Statement of Jonathan Coon, Chief Executive Officer, 1-800 
                             CONTACTS, Inc.
    Mr. Chairman and Members of the Subcommittee, my name is Jonathan 
Coon, CEO of 1-800 CONTACTS. Our company sells replacement contact 
lenses to consumers through an Internet web site and a toll-free 
telephone number. I appreciate the opportunity to appear before the 
Subcommittee today.
    In general, we believe that:

1. Contact lens wearers should have the right to a copy of their 
        contact lens prescription--without asking for it;
2. Contact lens wearers should have the freedom to choose where they 
        purchase their contact lenses;
3. Contact lens wearers should be able to receive their replacement 
        contact lenses as quickly as practical, and their chosen 
        retailer and their eye care professional should be expected to 
        cooperate to allow this to happen, and;
4. The means by which the sale of contact lenses are regulated should 
        be updated to account for the changes that have taken place in 
        last 25 years in the development, manufacture and marketing of 
        contact lenses.
    The legislation proposed by Rep. Richard Burr (H.R. 2221) will 
promote these goals, and will have a direct and positive impact on the 
lives--and pocket books--of the 35 million Americans who spend more 
than $3.5 billion every year on contacts.
    For those Members of the Subcommittee who are not familiar with 
contact lenses, I have brought a few samples. When contact lenses first 
became available to consumers, lenses were hard and custom made to each 
patient's unique specifications. Today the vast majority of Americans 
who wear contact lenses wear soft disposable lenses requiring no 
customization. Consumers most often buy these mass-produced lenses four 
6-packs at a time. Daily disposable customers commonly buy 180 or 360 
lenses at a time.
    As you can see, contact lenses are mass produced and disposable. It 
is an industry that has changed dramatically over the last 25 years. 
The fastest growing segment of the market are lenses that are thrown 
away every day--after a single use. Toll free numbers, overnight 
delivery, and the Internet have made it possible for consumers to order 
replacement lenses quickly and have the exact same lenses delivered to 
their door that they used to have to drive to purchase and pick up from 
their eye doctor.
    Contacts have changed from custom made to mass produced. The 
regulations surrounding the sale of contacts have stayed the same. 
Contact lens wearers have no right under federal law to automatically 
receive a copy of their own prescription--a right eyeglass wearers have 
enjoyed for over 25 years. Contact lenses represent one of the few 
remaining areas of health care where medical professionals can both 
prescribe and sell the products they prescribe--an inherent conflict of 
interest. As a result, for many Americans, contact lenses are too 
expensive, and too difficult to replace.
    Those opposed to granting contact lens wearers rights similar to 
those enjoyed by eyeglass wearers frequently cite health concerns as 
their justification. There are risks associated with wearing contact 
lenses, but those risks have nothing do to with where the lenses are 
purchased. An investigation conducted by state attorneys general 
concluded, ``purchasers from alternative channels have had no greater 
ocular health problems than purchasers from ECPs [eye care 
professionals].'' In settling anti-trust claims brought by 32 state 
attorneys general, the American Optometric Association (AOA) 
specifically agreed it could not represent that purchasing contact 
lenses from alternative distributors posed increased health risks. The 
attorneys general argued the opposite--that lower prices for and easier 
access to replacement contact lenses encourages more frequent 
replacement and improved ocular health.
    Mr. Chairman, I ask that copies of the attorneys general 
investigation and of the consent decree signed by the AOA be included 
with my testimony.
    Mr. Chairman, we support H.R. 2221 as an important first step for 
America's approximately 35 million contact lens wearers.
    1. It will grant every American who wears contact lenses the 
automatic right to a copy of his or her own contact lens prescription.
    2. It will promote competition and ocular health by making contacts 
cheaper and easier to replace.
    3. It will begin to protect consumers from the inherent conflict of 
interest created when eye care professionals both prescribe and sell 
contact lenses.
    The core principle behind this legislation is that every American 
should have a right to a copy of his or her contact lens prescription 
without having to ask for it. This makes sense. Having a copy of one's 
prescription is the consumer's ``ticket'' to lower prices and better 
service.
    In the majority of states, consumers have no automatic right to 
their contact lens prescription. A survey conducted by The Detroit Free 
Press indicates that consumers in the Detroit region often have a 
difficult time obtaining their prescriptions. Of fifty (50) 
optometrists surveyed, only one would release contact lens 
prescriptions to patients after an exam. Fifty-four (54) percent of 
optometry offices stated that they never release contact lens 
prescriptions to patients.
    Under federal law, every American has an automatic right to a copy 
of his or her own eyeglass prescription--without having to ask for it. 
When the rule was adopted in 1978, contact lenses were custom-made, and 
not included. H.R. 2221 would provide equal rights for contact lens 
wearers by providing them with an automatic right to a copy of their 
prescription.
    However, having a copy of the prescription is meaningless if the 
retailer chosen by the consumer cannot get the prescription verified. 
For example, when consumers seek to refill their prescriptions for 
medicines, its generally a simple process--the consumer goes to his or 
her local pharmacy, the pharmacy calls into the prescribing physician 
and the physician's office then promptly confirms, corrects or rejects 
the refill. That's the way it should work with refills of contact lens 
prescriptions--but in most cases it does not.
    Since eye care professionals both prescribe and sell contact 
lenses, verification amounts to the consumer asking their doctor's 
permission to buy lenses from a competitor. This inherent conflict of 
interest results in eye doctors ignoring our written verification 
requests more than half the time. Doctors respond quickly to tell us if 
there is a problem with the prescription and more slowly or not at all 
if there is no problem with the prescription.
    There are basically two different verification systems.
Indefinite vs. Defined:
    1. ``Indefinite verification''--sometimes referred to by eye 
doctors as ``positive verification,'' this system requires a competing 
seller to wait indefinitely for the eye doctor (who sells contacts) to 
respond to the verification request. The seller must wait until a 
response is received although no time period is defined for the doctor 
to respond.
    2. ``Defined verification''--sometimes referred to as ``passive or 
presumed verification'' this system defines how long an eye doctor has 
to respond to a verification request when a consumer chooses to 
purchase from a seller other than that same eye doctor. This system 
requires a seller to seek verification from the prescriber and gives 
the prescriber a reasonable time period in which to reply. If the 
prescriber tells the seller within that time period that the 
prescription is expired or invalid, the seller must cancel the order. 
If the prescriber does not respond to the seller within the defined 
time period, the seller can rely on the prescription information 
provided by the consumer and fill the order.
    Eye doctors who sell contacts say the verification time period does 
not need to be defined.
    Sellers who are not eye doctors say the time period should be 
defined.
    It's easy to explain the two positions:
    Sellers who are not eye doctors must ask a competing seller of 
contacts for permission to make a sale.
    Eye doctors who sell contacts ask themselves.
    An indefinite verification system can work where the prescriber has 
no conflict of interest. For example, the verification process between 
medical doctors and pharmacies is not defined. This system works 
despite the lack of defined rules because medical doctors do not sell 
drugs and pharmacies do not write prescriptions. The relationship is 
defined in such a way that the response time can be indefinite because 
there is no reason for the doctor not to cooperate. Pharmacies are not 
asking a competitor for permission to fill an order. Medical doctors 
are not losing income by cooperating with pharmacies.
    Where indefinite time period (or ``positive verification'') systems 
have been implemented for the sale of replacement contact lenses, the 
result has been widespread consumer dissatisfaction. Thousands of 
consumers wait so long for a verification response that more than half 
ultimately cancel their orders. Many of these customers give up and go 
back to the doctor to purchase lenses. Many just keep wearing their old 
lenses. We also see a growing number going to over-the-border online 
companies that require no verification.
    In Texas alone, where an indefinite time period system has been in 
place for more than a year, our company has canceled more than 40,000 
customer orders solely for non-response by the eye doctor. Consumers 
have filed more than 4,300 hand-signed complaints with the optometry 
board. Additional complaints have been filed by consumer groups and 
even by eye doctors themselves. The optometry board (made up of 
optometrists) has, in my opinion, taken no meaningful action to address 
the consumer complaints. The result has been an unmitigated disaster 
for Texas consumers with more than half of all online orders canceled 
simply because the eye doctor never responds--in any time period.
    A defined time period system is similar to what the FTC staff 
called for in comments before the Connecticut Opticians Board, in which 
they stated ``a valid prescription, communicated to the seller by the 
patient, can be presumed verified if the doctor is contacted and given 
sufficient opportunity to correct any errors.''
    This compromise system was enacted into law in California last 
year. The system was developed with the involvement of 
ophthalmologists, optometrists, consumer groups, the California Medical 
Board, and the California Optometric Association. In their written 
statement supporting the bill, the California Optometric Association 
concluded that the law ``supports safe and responsible patient access 
to contact lens prescriptions'' and ``strikes a reasonable balance 
between access and accountability.'' Our company has processed more 
than 100,000 orders in California since the system was activated. We 
are not aware of any complaints being received by the medical board 
from consumers, online sellers, or eye doctors.
    We agree with the California Optometric Association, and believe 
that a verification system with a defined time limit is a reasonable 
compromise that would work well nationwide.
    Mr. Chairman, thank you for the opportunity to testify. I would be 
pleased to answer any questions you may have. 
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    Mr. Stearns. Dr. Cummings, welcome.

                  STATEMENT OF J. PAT CUMMINGS

    Mr. Cummings. Thank you. Mr. Chairman, I am Pat Cummings, 
immediate past president of the American Optometric Association 
and a private practice optometrist from Sheridan, Wyoming. I 
appreciate the opportunity to appear today to discuss H.R. 
2221, the Fairness to Contact Lens Consumers Act, on behalf of 
AOA and its 34,000 members.
    H.R. 2221 would require that doctors provide contact lens 
prescriptions to patients and respond to requests to verify the 
prescriptions by others. Let me state right away that the AOA 
supports this consumer right to receive their prescription and 
have it verified to a third party. We believe that the vast 
majority of doctors do provide patients with this information. 
Nonetheless, we recognize that all patients should have equal 
access to this information.
    The primary issue for AOA and its members is not where 
patients purchase replacement lenses. It is simply to assure 
two things: first, that the process for verifying the 
prescription provided the doctor with all the information 
required so that the doctor may properly and efficiently 
respond to the request; and, second, that the lenses are 
provided to the patient only when the prescription has, in 
fact, been positively verified. It is important to note that we 
believe this process should apply to all sellers of lenses, 
including private practitioners, optical chains, and others.
    Current methods used by sellers to verify prescriptions 
fall into one of three basic categories: fax requests, 
automated phone calls, or a simple statement on a Web site that 
says, ``Placing an order confirms that a valid prescription 
exists,'' which is, in fact, no verification at all.
    My written statement contains examples of problems with 
each of these methods sent to me by colleagues. I would just 
like to summarize them briefly; first, in a recent fax 
situation which resulted in a seller encouraging a patient to 
file a complaint with the State board, despite the fact that 
the doctor had responded to the fax request not once but twice. 
This is not an unusual occurrence. I have been told similar 
stories by numerous colleagues over the past year.
    Another member described an automated phone message that 
resulted in a non-compliant response, no matter what choice the 
doctor made. Again, this is a story I have heard repeatedly 
from colleagues in the past year. And it raises two basic 
concerns.
    First, it places a doctor legitimately attempting to comply 
with a verification request in a potentially adversarial 
situation with a patient as well as being incorrectly reported 
to a State board. Second, it raises the very real possibility 
that lenses were provided to a patient with no knowledge of 
whether a valid prescription exists.
    Finally, Mr. Chairman, there are Web sites who make no 
attempt at all to verify that a prescription actually exists. 
Two such examples are Vision Direct and Coastal Contacts. Just 
last week I received a note from a colleague describing an 
adverse event for a patient who obtained lenses off one of 
these sites. While the ultimate outcome was good, it could have 
resulted in severe vision loss, all because the lenses were 
provided without a prescription, without adequate instruction, 
and without medical supervision.
    Adding a provision to H.R. 2221, requiring sellers to 
provide doctors with basic information will address two 
important issues raised by these examples. First, it will 
reduce the number of lenses being provided inappropriately 
without a prescription. And, second, it will allow doctors to 
respond more efficiently to requests and minimize the chance 
that they will be unfairly subjected to potential substantial 
penalties. It would also promote fair competition among sellers 
because some sellers will no longer have the advantage of 
disregarding the need to contact a doctor to validate the 
prescription.
    Our second concern is that lenses should be sold only when 
the existence of a valid prescription is positively verified by 
the doctor. Contact lenses are prescription medical devices 
regulated by the Food and Drug Administration. In fact, the FDA 
has published a consumer advisory telling consumers not to 
order contact lenses by mail, phone, or on the Internet without 
a current prescription because of health risks associated with 
contact lens wear.
    A 2002 FTC staff document concluding the primary health 
care concerned with contact lenses appears to be ensuring that 
contact lens wearers return to their doctors regularly for eye 
examinations. Customers incur health risks if they forego 
regular eye exams that would allow the optometrist or 
ophthalmologist to spot emerging health problems in the early 
stages.
    The only verification system consistent with the status of 
contact lenses as FDA-regulated devices and the only way to be 
absolutely certain that these risks are eliminated is one in 
which the seller either has a copy of the prescription or has 
it positively verified by the doctor.
    If the concern is that doctors will not comply, then make 
the penalties more severe. Having served in both State and 
National positions for many years, my strong sense is that the 
penalties called for in H.R. 2221 are more than sufficient to 
capture the attention of the few practitioners who otherwise 
may not comply, but we don't have any qualms about increasing 
them substantially if some feel it necessary.
    Again, Mr. Chairman, let me emphasize that we support the 
intent of H.R. 2221 to provide patients with their contact lens 
prescriptions and to require doctors to respond to requests to 
verify those prescriptions.
    Thank you.
    [The prepared statement of J. Pat Cummings follows:]
Prepared Statement of J. Pat Cummings, O.D., Immediate Past President, 
                    American Optometric Association
    Mr. Chairman, I am Pat Cummings, Immediate Past President of the 
American Optometric Association (AOA) and a private practice 
optometrist from Sheridan, Wyoming. I appreciate the opportunity to 
appear today to discuss HR 2221, the ``Fairness to Contact Lens 
Consumers Act,'' on behalf of AOA and its 34,000 members.
    HR 2221 would require that doctors provide contact lens 
prescriptions to patients following a fitting period, and respond to 
requests to verify the prescription by others acting on behalf of the 
patient. Let me state right away that the AOA supports this consumer 
right to receive their prescription and have it verified to a third 
party. We believe that the vast majority of doctors do provide patients 
with this information; 35 states have prescription release provisions, 
and the Federal Trade Commission (FTC) found in a 1995 study that 92 
percent of patients who asked for their prescriptions received them. 
Notwithstanding those figures, we recognize that all patients should 
have equal access to this information, and we do support the intent of 
HR 2221 to provide it to them.
    The primary issue for AOA and its members is not where patients 
purchase replacement lenses. It is simply to assure two things: first, 
that the process for verifying the prescription upon which the purchase 
is based provides the doctor with all the pertinent patient information 
required, so that the doctor may properly and efficiently respond to 
the request; and second, that lenses are provided to patients only when 
the prescription has in fact been positively verified. It is important 
to note that we believe that positive verification should apply to all 
sellers of lenses, including private practitioners, optical chains and 
others.
    Current methods used by sellers to verify prescriptions fall into 
one of three basic categories:

 FAX requests, which may or may not include adequate information about 
        the patient for the doctor to accurately respond, and may not 
        in fact be handled appropriately when the doctor does respond. 
        For example, the seller may tell the patient the doctor hasn't 
        responded when they have, or conversely may provide the patient 
        with lenses when the doctor has indicated no valid prescription 
        exists.
 Automated phone calls, which have proven difficult if not impossible 
        for doctors to respond to.
 A simple statement on a website that says placing an order confirms 
        that a valid prescription exists, which is in fact no 
        verification at all.
    Let me provide examples of problems associated with each of these 
methods.
    Doctors have been accused of being unresponsive to requests for 
verification. One of our members has sent us the following account of a 
recent FAX situation addressing this issue as follows: ``Patient X is a 
long-term patient and contact lens wearer. She has often chosen to 
receive lenses from another supplier. I examined her two weeks ago and 
found normal eye health and good contact lens wear. We received a fax 
from 1-800Contacts a few days later asking for prescription 
verification. We returned the fax with the appropriate information 
immediately. Two days later we received a second FAX for the same 
information. My staff took time out of a busy day to reply, this time 
with a note stating that this was our second response. The patient then 
called my office a few days later stating she had received a note from 
1-800Contacts claiming we would not release her contact lens 
prescription information. Further, they requested she fill out a 
complaint form and send it to the State Board of Examiners in 
Optometry. We subsequently called 1-800Contacts. They informed us they 
had made a mistake and had indeed received both replies of 
verification. They said they would contact the patient to inform her we 
were in compliance. Then, we received a third FAX for the same patient 
looking for the same verification.'' This is not an unusual occurrence; 
I have been told similar stories by numerous colleagues over the past 
year.
    Another member sent the following on the automated message method: 
``At 9:15AM on August 13, 2003, we received an automated call from 1-
800Contacts. The call asked if we would be compliant in processing a 
request to verify a prescription; if so press 1, if not press 2. When I 
pressed 1 the recording said we will note that you will not be 
compliant with your patients' request and the call was ended. I 
verified that I had pressed 1 on the phone screen. No patient name or 
prescription was given.'' Again, this is a story I have heard 
repeatedly from colleagues in the past year, and it raises two basic 
concerns. First it places a doctor legitimately attempting to comply 
with a verification request in a potentially adversarial situation with 
a patient as well as being incorrectly reported to a State Board; 
second it raises the very real possibility that lenses were provided to 
a patient with no knowledge of whether a valid prescription exists 
simply on the basis that some request was made and no response 
received.
    Finally, Mr. Chairman, there are the websites who make no attempt 
at all to verify that a prescription actually exists. Two such examples 
are Vision Direct and Coastal Contacts. Both these sites simply say in 
small print that by placing an order you confirm you are a successful 
contact lens wearer with a valid prescription. There is no request for 
doctor information and no attempt to verify the existence of a valid 
prescription.
    Just last week I received the following from a colleague describing 
an adverse event for a patient who obtained lenses off of one of these 
sites as follows: ``Patient X has been ordering his contact lenses off 
the internet from Vision Direct. He was wearing Johnson/Johnson Acuvue 
lenses extended wear. While ordering a new supply of lenses from Vision 
Direct he inquired about the new 30-day continuous wear lenses. They 
informed him that they did indeed have the lenses and were more than 
happy to supply the lenses to him. Vision Direct had never received a 
valid prescription from an optometrist or an ophthalmologist but had 
just started mailing lenses to him from the information which he 
provided to them from the lens parameters found on the contact lens 
boxes. They also changed him to the Focus Night/Day lenses without 
valid authorization. Worse yet, they never provided him with any 
information as to how long the lenses could be worn or how frequently 
the lenses needed to be changed to a new pair. Needless to say, without 
any direction, he started wearing the lenses anywhere from two to three 
months continually before he would change to a new pair of lenses. He 
would only change them when his vision became blurred or when the 
lenses started irritating his eyes. He came to my office complaining of 
very blurred vision and severe pain in his right eye. From my 
examination, I determined that he had developed very serious corneal 
stromal edema as well as a superficial keratitis. After three weeks of 
medical treatment, I was able to restore his vision back to the 20/20 
level. These lenses were provided to this gentleman without a proper 
valid prescription or proper medical supervision. Thankfully the 
outcome in this case was good, however, it very possibly could have 
ended with severe vision loss.''
    Adding a simple provision to HR 2221 requiring sellers to provide 
doctors with basic information will address two important issues raised 
by these examples--first, it will reduce the number of lenses being 
provided inappropriately without a prescription; and second, it will 
allow doctors to respond more efficiently to requests and minimize the 
chance that they will be unfairly subjected to potential substantial 
penalties. In addition, this will actually promote fair competition 
among sellers, because some sellers will no longer have the advantage 
of disregarding the need for a valid prescription. This we believe is a 
reasonable approach that improves the bill with no undue burden on any 
party.
    Our second concern is that lenses should be sold only when the 
existence of a valid, unexpired prescription is positively verified by 
the doctor. Why is this so important? Contact lenses are prescription 
medical devices regulated by the Food and Drug Administration. They can 
only be dispensed to patients with a valid, current prescription. In 
fact, the FDA has published a consumer advisory telling consumers not 
to order contact lenses by mail, phone or on the internet without a 
current prescription, because of health risks associated with contact 
lens wear. As the Federal Trade Commission staff pointed out in 
comments to the Connecticut Board of Examiners for Opticians in May 
2002 there are significant health issues concerning the sale of contact 
lenses, primary among them being ensuring that contact lens wearers 
return to their doctors for regular eye examinations. The staff 
document correctly concludes, ``The primary health care concern with 
contact lenses appears to be ensuring that contact lens wearers return 
to their doctors regularly for eye examinations. Customers incur health 
risks if they forego regular eye exams that would allow the optometrist 
or ophthalmologist to spot emerging health problems in the early 
stages.'' As noted in my previous example, that is a very real risk 
when lenses are provided without a properly verified prescription.
    The only appropriate verification system consistent with the status 
of contact lenses as FDA regulated devices and the only way to be 
absolutely certain that these risks are eliminated, is one in which the 
seller either has a copy of the prescription or has it positively 
verified by the doctor. Anything less is subject to the vagaries of 
both technical and human error. You can't call the pharmacy and get a 
drug prescription filled unless the pharmacy has a copy of a valid 
prescription on file or gets approval from the doctor. It should be no 
different for contact lenses.
    If the concern is that doctors will not comply, then make the 
penalties more severe. Having served in both state and national 
positions for many years, my strong sense is the penalties called for 
in HR 2221 are more than sufficient to capture the attention of the few 
practitioners who otherwise may not comply, but we don't have any 
qualms about increasing them substantially if some feel it necessary.
    Again, Mr. Chairman, let me emphasize that we support the intent of 
HR 2221 to provide patients with their contact lens prescriptions, and 
to require doctors to respond to requests to verify those 
prescriptions. Our sole concern with the legislation is that it should 
also require sellers to provide doctors with basic patient information, 
in an appropriate manner, so we may respond efficiently, and require 
that prescriptions be positively verified by the doctor before lenses 
are sold. We believe this is a balanced and reasonable approach that 
addresses issues relating to both competition and health concerns.
    Thank you for the opportunity to present testimony on this 
important issue. We hope you find our input useful, and that we can 
work with all interested parties to move this legislation forward in a 
positive fashion.

    Mr. Stearns. Thank you.
    Mr. Hubbard, welcome.

                 STATEMENT OF ROBERT L. HUBBARD

    Mr. Hubbard. Good afternoon. Thanks for having me. It's a 
pleasure to be here.
    I have been involved in this industry since March 1995. 
There's been far too much to discuss. And I apologize if I 
sometimes get into minutia or otherwise discuss items that 
really aren't as important here. I would prefer to respond to 
your questions. And otherwise I tried to provide written 
testimony that gave an overview of the position of the States 
and gave you some citations and the States would welcome any 
request for additional information, elaborate on some of the 
issues raised on that testimony and otherwise.
    The summary of the written testimony is relatively 
straightforward. State attorneys general wholeheartedly support 
mandatory release of contact lens prescription. We have taken 
this position publicly.
    The first example of this is in comments that the States 
gave to the FTC on the eyeglass rule at the time. And still the 
rule applies only to eyeglasses and mandates the release of 
prescriptions.
    Back in 1997, we urged that it be extended to contact 
lenses. We thought that the reason it hadn't originally been 
extended to contact lenses had become outdated. And there have 
been other developments.
    We think now 6 years later, it is even more so that that 
mandatory release is appropriate. Last year, 39 attorneys 
general joined a letter in support of the H.R. 2663, which 
supported mandatory release. And my testimony here today also 
renews that commitment to the State attorneys general in 
support for mandatory release of contact lens prescriptions.
    The States have a lot of experience in this industry. In 
addition to the competition advocacy that I have summarized 
briefly, we have been engaged in a lot of litigation about this 
precise problem trying to ensure that competition is the rule 
of trade.
    We have over time become quite skeptical of the health care 
claims that are made about the kind of difficulties that 
consumers face and the justifications for those restraints on 
health care. We have asked for and never gotten the kind of 
evidentiary support that we would find necessary to give those 
health care claims credence. We alleged in our litigation that 
such claims were deceptive. We were actively litigating that.
    The settlement that we had in the disposable contact lens 
litigation addressed those deception concerns. We required that 
the AOA only make those health care claims when they were 
supported by data.
    I just reiterate that health care claims have been made 
very since competition reared its head in this industry. And we 
would have expected there to have been a manifestation of those 
concerns and better documentation of them by now.
    Finally, I note that I try to represent consumers. It's 
part of my job. It's what an attorney general tries to do. 
Consumers want their prescriptions. They want easy access to 
non-eye care practitioners in order to buy contact lenses. 
There is a significant economic and other benefit to consumers 
being provided that. And, as I mentioned before, there's no 
documented harm for consumers going to alternatives, instead of 
their ECPs.
    And I also note that the complaints that we hear about 
almost always, if not always, come from the professionals, not 
from the consumers themselves. It's not consumers that are 
complaining that they got their lenses. It's always the 
computer who is complaining that someone else sold the lenses. 
Thank you very much.
    [The prepared statement of Robert L. Hubbard follows:]
          Prepared Statement of Robert L. Hubbard 1
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    \1\ Director of Litigation, Antitrust Bureau, New York State 
Department of Law. I also serve as Chair of Plaintiff States' Steering 
Committee in the Disposable Contact Lens Antitrust Litigation, MDL 1030 
(M.D. Fla.) and Chair of the Contact Lens Working Group of the NAAG 
Antitrust Task Force.
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    I am pleased to testify here today on H.R. 2221. The States 
wholeheartedly support federal legislation that requires eye care 
practitioners (ECPs) to release contact lens prescriptions, which H.R. 
2221 does. Unlike most physicians, eye care practitioners sell what 
they prescribe. Thus, individual ECPs derive substantial revenue from 
the sale of replacement contact lenses and have an economic incentive 
to withhold prescriptions from customers to prevent consumers from 
shopping for replacement lenses elsewhere. In light of that incentive 
and the power of ECPs over prescriptions, the bill helps give consumers 
what they need to make their own choices about where to buy replacement 
contact lenses.
           in re disposable contact lens antitrust litigation
    As part of enforcing antitrust and consumer protection laws, state 
Attorneys General have an interest in maintaining open and competitive 
markets and have long been focused on markets for the sale of contact 
lenses. The most significant manifestation of that interest is In re 
Disposable Contact Lens Antitrust Litigation, which involves 32 States 
2 and a certified class in the Middle District of Florida, 
Jacksonville Division, in front of United States District Judge Harvey 
Schlesinger. In that litigation, plaintiffs alleged the high price and 
limited availability of replacement contact lenses resulted from 
illegal collusion among contact lens manufacturers (Johnson & Johnson 
Vision Products, Inc. d/b/a Vistakon (J&J), Bausch & Lomb, Inc. (B&L), 
and CIBA Vision Corp. (CIBA)), the American Optometric Association 
(AOA), other groups of optometrists, and 13 individual optometrists. 
Plaintiffs charged that the illegal agreement made it more costly and 
difficult for consumers to buy replacement contact lenses from mail 
order firms or pharmacies.
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    \2\ Alabama, Alaska, Arizona, Arkansas, California, Connecticut, 
Delaware, Florida, Idaho, Illinois, Iowa, Kansas, Louisiana, Maine, 
Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New 
Jersey, New York, North Carolina, North Dakota, Ohio, Oregon, 
Pennsylvania, Texas, Utah, Virginia, West Virginia, and Wisconsin.
---------------------------------------------------------------------------
    In re Disposable Contact Lens Antitrust Litigation was a massive 
undertaking. The investigation that led to the litigation began with a 
complaint to Florida made by Monty Belote of the Florida Consumer 
Action Network. The effort included over 200 depositions, 45 motions 
for summary judgment, a docket sheet with over 1,400 entries, and five 
weeks of trial before a jury before plaintiffs reached a settlement 
with the last defendant. Even after the settlements, the states acted 
to enforce the injunctive relief provisions of the settlements.
    One major theme of plaintiffs' claims was that the illegal 
agreement included making it difficult for consumers to get their 
prescriptions. The Attorneys General gathered and offered evidence 
showing systematic efforts by ECPs, their trade associations, and the 
other defendants to prevent consumers from obtaining or using their 
prescriptions. Aided by their trade association and contact lens 
manufacturers, ECPs exchanged ideas and discussed in their trade 
journals methods to discourage consumers from requesting their 
prescriptions or to make the prescriptions they did release less 
useful. They advised colleagues to refuse to give consumers 
prescriptions or make consumers sign waivers that absolve the eye care 
practitioner of ``liability'' in connection with the 
prescription.3
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    \3\ See, e.g., Koetting, I Want my Contact Lens RX, Optometric 
Economics, 30-37 (February 1991); Kirkner, 10 Ways to Keep RXs from 
Walking, Review of Optometry, 59-64 (Sept. 15, 1994) (article about a 
roundtable of optometrists discussing how to keep patients from using 
competitors); Snyder, Winning the War Against Mail Order Contact 
Lenses, Optometry Today, Vol. No. 1 (1993). Koetting's article 
describes the specific practices used, as simple refusal to give 
prescriptions, falsely claiming that federal or state law prohibits 
release of the prescription, writing prescriptions for brands that are 
not widely available, or conditioning the prescription on signing by 
consumers of a waiver or disclaimer.
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    Ultimately plaintiffs settled with all of the defendants, and by 
order dated November 1, 2001, the Court granted final approval of the 
settlements.4 B&L agreed to sell its lenses to mail order 
and pharmacies on a non-discriminatory basis, deposit $8 million into a 
settlement fund, and offer a benefit package valued at $121 to all 
consumers who purchased contact lenses since 1988.5 B&L 
guaranteed it would distribute at least $9.5 million worth of benefits, 
by agreeing to deposit the difference between what was distributed and 
the $9.5 million into the settlement fund. J&J also agreed to sell its 
lenses to alternatives like mail order and pharmacies on a non-
discriminatory basis. J&J agreed to deposit $25 million into a 
settlement fund, offer a benefits package to contact lens wearers 
valued at $100, guarantee distribution of $30 million in benefits, and 
pay up to $5 million to former wearers of J&J lenses.6 AOA 
agreed to pay $750,000, and the 13 individual defendants agreed to pay 
$8,000 each. Additionally, AOA agreed to open access to replacement 
lenses for consumers and to not restrict where consumers can obtain 
contact lenses, including an agreement to refrain from opposing the 
release of contact lens prescriptions.7 The Attorneys 
General hope that consumers will enjoy significant benefits as a result 
of these settlements.8
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    \4\ State settlements are posted on the website of the State 
Enforcement Committee of the Antitrust Section of the ABA, at http://
www.abanet.org/antitrust/committees/state-antitrust/home.html. The lens 
settlements on the settlement portion of that website, within the 11th 
Circuit portion of the list of settlements.
    \5\ The B&L benefits package includes: (1) a single $50.00 rebate 
per claimant on the purchase of four multipacks and an additional 
$25.00 rebate per claimant on an additional purchase of four multipacks 
of B&L disposable contact lenses; (2) a single $25.00 rebate per 
claimant on an eye examination, provided that the claimant also 
provides proof of purchase of Bausch & Lomb contact lenses; and (3) 
coupons and product samples for B&L lens care products.
    \6\ The J&J benefits package includes: (1) $50 off the purchase of 
four six-packs of J&J disposable lenses; (2) $25 off the cost of an eye 
exam; and (3) an additional $25 off a future purchase of four or more 
lens six-packs.
    \7\ The specific provision of the settlement between plaintiffs and 
the AOA concerning prescription release provides: ``Consistent with 
state law, the AOA will not object to the release of contact lens 
prescriptions, except in the affirmative exercise of an optometrist's 
own medical judgment related to the specific, identified and documented 
health needs of a particular patient. The AOA will not develop, 
disseminate, or urge the use of forms designed to limit either the 
availability or utility of prescriptions. A form may contain reasonable 
expiration dates, limitations on refills and other provisions which are 
consistent with state law and good optometric practice.'' Settlement  
5(a).
    \8\ Early in the litigation, the States also settled with CIBA and 
the other groups of optometrists.
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           state competition advocacy in contact lens markets
    Still, States have long recognized that litigation and the fruits 
of litigation cannot address all of the competitive problems 
characteristic of contact lens markets. Litigation did not and cannot 
insure that every eye care practitioner releases prescriptions as a 
matter of practice. Litigation cannot address the fundamental 
structural problem in the market: that ECPs both prescribe and sell 
contact lenses. Thus, to protect further the interests of consumers in 
contact lens markets, states have also engaged in competition advocacy 
in support of consumers who buy and use contact lenses.
    States engaged in competition and consumer advocacy in vision care 
markets generally when the States commented on the Federal Trade 
Commission's ``Prescription Release Rule.'' That Rule was premised on 
the finding that many consumers had difficulty comparison shopping for 
eyeglasses because ECPs refused to release prescriptions. The Rule 
requires an ECP to provide the patient at no extra cost a copy of the 
patient's eyeglass prescription immediately after the eye examination 
is complete.9 The Rule also: (1) prohibits the ECP from 
conditioning the availability of an eye care examination on an 
agreement to purchase ophthalmic goods; and (2) requires ECPs to 
release eyeglass prescriptions to their patients regardless of whether 
they request the prescription.10 The automatic release rule 
alerts the consumer that the purchase of eyeglasses can be separate 
from obtaining an eye exam. Contact lenses were excluded from this rule 
because each pair required a new fitting.
---------------------------------------------------------------------------
    \9\ 16 CFR Part 456, (a)-(c), known as the ``Prescription Release 
Rule,'' promulgated in 1978.
    \10\ Id.
---------------------------------------------------------------------------
    For over twenty years that FTC Rule has mandated the release of 
eyeglass prescriptions, and the Rule has served consumers well. 
Mandating the release of eyeglass prescriptions has fostered a 
competitive market for the retail sale of eyeglasses. Consumers have 
enjoyed ever increasing competitive alternatives for purchasing their 
eyeglasses. Consumers can have eyeglasses made in as little as one hour 
and at a very low cost.
    The States' comments on the FTC rule in 1997 both supported 
continuation of the Rule and urged that the Rule be extended to contact 
lens prescriptions.11 The States urged that mandatory 
release of contact lens prescriptions would have similar results, 
lowering consumer costs, as well as enhancing the healthier use of 
these lenses by consumers. Since the FTC had promulgated the eyeglasses 
Rule, the contact lens industry had developed in ways that justified 
adding contact lens prescriptions to the Rule. When the Rule was 
adopted, soft contact lenses were designed to be replaced annually, 
coinciding with the period typically recommended for reexamination by 
eye care practitioners. Beginning in the late 1980s, manufacturers 
began to market and sell what are now known commonly as ``disposable'' 
or ``frequent replacement'' contact lenses, which are designed to be 
replaced daily, weekly, or monthly. For these and other contact lenses, 
manufacturers developed methods that greatly lessened the quality 
control problems of late 1970s. Because contact lenses are now reliably 
reproduced, replacement contact lenses are no longer individually 
checked or individually adapted on the eye. Moreover, consumers have 
increasingly chosen lenses that are replaced frequently over other 
types of contact lenses, and selling replacement contact lenses has 
developed into a significant market. The FTC retained the Rule, but did 
not extend the rule to contact lenses.
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    \11\ States Comments dated Sept. 2, 1997, of Attorneys General to 
the Federal Trade Commission re 16 CFR Part 456 (Spectacle Prescription 
Release Rule), available at the Legislative Advocacy portion of the 
State Enforcement Website, supra note 3. The states submitting those 
comments were Alaska, Arizona, Arkansas, California, Connecticut, 
Delaware, Florida, Illinois, Iowa, Maryland, Michigan, Minnesota, New 
York, Ohio, Pennsylvania, West Virginia, and Wisconsin.
---------------------------------------------------------------------------
    States have reiterated their position that mandatory prescription 
release should apply to contact lenses. Thirty nine Attorneys General 
acted to support of federal legislation last year (H.R. 2663) that 
would have achieved that result.12
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    \12\ Letters dated March 18, 2002 from State Attorneys General to 
Representatives sponsoring H.R. 2663, the Contact Lens Prescription 
Release Act of 2001, available at the Legislative Advocacy portion of 
the State Enforcement Website, supra note 3. The thirty nine attorneys 
general who joined that letter were from Alabama, Alaska, Arizona, 
California, Colorado, Connecticut, Delaware, District of Columbia, 
Florida, Hawaii, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, 
Massachusetts, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, 
New York, North Carolina, North Dakota, Northern Mariana Islands, Ohio, 
Oregon, Puerto Rico, Rhode Island, South Carolina, Utah, Vermont, 
Virginia, Virgin Islands, Washington, West Virginia, Wisconsin, and 
Wyoming.
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    Mandating the release of contact lens prescriptions would still 
benefit consumers. Anti-consumer, anticompetitive practices have not 
ended. Enforcement proceedings in the Disposable Contact Lens Antitrust 
Litigation illustrated that many consumers still have significant 
difficulties getting their contact lens prescriptions. Forms 
implementing the practices discussed in the articles cited above 
continue to be used. Although twenty-six states require release of 
contact lens prescriptions, the specific requirements vary and anti-
consumer, anticompetitive practices persist concerning contact lens 
prescriptions that are not permitted under the FTC eyeglass Rule. 
Federal legislation would create a uniform national rule and extend 
that rule to all of the nation's consumers.
    The legislation would have a significant impact. Today, over 26 
million consumers wear contact lenses. Alternative suppliers, like 
pharmacies, mail order, buying clubs, department stores, and discount 
merchandisers, give consumers a convenient and cost-effective method of 
purchasing replacement contact lenses. The alternatives typically apply 
a smaller markup than ECPs. These savings typically are passed on to 
consumers in the form of lower costs and increased convenience. 
Obtaining contact lenses from alternatives may also spare consumers the 
cost of an extra unnecessary office visit to an eye care practitioner.
   health care concerns have no evidentiary basis and do not justify 
                      restraining consumer choice
    The principal reason some ECPs advance for refusing to provide a 
patient with his or her contact lens prescription, at least when public 
policy makers are paying attention, is health care. By withholding 
prescriptions, ECPs argue they are ensuring that the patient comes back 
for eye care. If a consumer wants or needs replacement lenses, the ECP 
theoretically could force the consumer to return to the ECP's office 
and check the consumer's eye health. A receptionist or nurse could 
probe the consumer's habits or the ECP could perform an examination. 
This ``consumer health'' argument is based on the theory that, as a 
``medical device,'' contact lenses require a professional's attention. 
Yet, replacement lenses are not and need not be individually fit by an 
eye care practitioner.
    Contrary to this argument, mandatory prescription release would 
probably benefit consumers' ocular health. As the cost and convenience 
of buying replacement lenses improves, the safety of wearing contact 
lenses, particularly disposable or frequent replacement lenses, should 
also improve. If buying lenses is expensive and inconvenient, consumers 
may stretch wearing schedules or engage in other conduct to extend the 
life of their contact lenses. Wearing lenses for too long can harm 
consumers if the lenses become dirty or carry bacteria or viruses that 
would not develop if the lenses were replaced more frequently. Easier 
access to, and lower prices for, replacement lenses encourage consumers 
to use the lenses properly, thereby increasing patient safety.
    In addition and based on their experience in the Disposable Contact 
Lens Antitrust Litigation, States are skeptical of the health care 
claims made by the opponents of prescription release. The litigation 
addressed significant disputes about the relationship between ocular 
health and the sale of replacement disposable contact lenses by 
alternative channels of distribution. The AOA claimed that sales by 
alternatives threatened ocular health, which plaintiffs alleged (and 
the AOA denied) was deceptive.13 Plaintiffs alleged that a 
1990 AOA presentation to the Food & Drug Administration was 
deceptive.14 Plaintiffs also asserted that the AOA in 1992 
decided not to survey the issue because the results might be that 
alternative channels did not threaten, and may even improve, ocular 
health, and that such a survey would have to be disclosed.15 
In addition, Plaintiff States propounded various contention 
interrogatories about studies on contact lenses and ocular health, 
including one asking the AOA to ``Identify and describe all studies of 
which you are aware that discuss any effect the dispensing of contact 
lenses by alternative channels has on ocular health.'' In addition to 
objecting to the interrogatory, ``the AOA state[d] it is aware of no 
specific study as defined [in the objection].'' 16 Finally, 
arguing that the testimony had no scientific basis, plaintiffs moved to 
preclude expert testimony on whether alternative channels endangered 
the health and safety of consumers.17 The AOA opposed that 
motion, which was undecided when plaintiffs settled with the AOA.
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    \13\ Plaintiff States' Amended Complaint  49-55, Doc. No. 7 (97 
CV 861); Florida Complaint  37, 41, Doc. No. 1 (94 CV 619); 
Consolidated Class Complaint  37, 40, Doc. No. 23.
    \14\ Florida's Consolidated Statement of Facts dated March 19, 
1997, at 19-22, Doc. No. 270; Plaintiff States' Consolidated Statement 
of Facts dated Nov. 12, 1999, at 57-60, Doc. No. 849.
    \15\ Florida's Consolidated Statement of Facts dated March 19, 
1997, at 29 n. 128, Doc. No. 270; Plaintiff States' Consolidated 
Statement of Facts dated Nov. 12, 1999, at 83 n. 241, Doc. No. 849.
    \16\ The AOA's Response to States' Third Discovery Requests to the 
AOA dated February 8, 1999, at 32.
    \17\ Plaintiffs' Motion In Limine to Preclude Expert Testimony of 
Louis A. Wilson, A. Christopher Snyder, Gerald E. Lowther and Oliver D. 
Schein, and Memorandum of Law dated Aug. 25, 1999, Doc. No. 774.
---------------------------------------------------------------------------
    At plaintiffs' insistence and to settle those claims, the AOA 
agreed to limit what it could say and do concerning those health care 
assertions. Paragraph 5(h) of the settlement between plaintiffs and the 
AOA provides:
        The AOA shall not represent directly or indirectly that the 
        incidence or likelihood of eye health problems arising from the 
        use of replacement disposable contact lenses is affected by or 
        causally related to the channel of trade from which the buyer 
        obtains such lenses. Specifically, AOA shall not represent 
        directly or indirectly that increased eye health risk is 
        inherent in the distribution of replacement disposable contact 
        lenses by mail order, pharmacies, or drug stores. This 
        paragraph shall not prohibit the AOA from making such 
        representations where such representations are supported by 
        valid, clinical or scientific data.
    Sales by ECP competitors do not give rise to any eye health 
problems that the AOA can ``support by valid, clinical or scientific 
data.'' 18 The States have repeatedly asked the AOA to 
provide to the States any such data if the AOA becomes aware of such 
data, but no such data has ever been provided.
---------------------------------------------------------------------------
    \18\ Indeed, the AOA has not provided any evidence of consumer 
harm, which is quite telling. Disposable contact lenses were introduced 
and alternative channels began selling them in the late 1980s. The 
States would expect any consumer harm flowing from the sale of 
replacement contact lenses by alternative channels to have become 
manifest by now if there were such evidence.
---------------------------------------------------------------------------
    Moreover, this health care justification was properly rejected when 
forwarded to justify the refusal to release eyeglass prescriptions, and 
should now be rejected as a justification for refusing to release 
contact lens prescriptions.
    Moreover, a theoretical concern that a patient will not follow 
health care directions without some coercion being applied does not 
justify withholding information from consumers or eliminating 
consumers' right to choose. The means of protecting the patient's 
health are obvious and straightforward. The ECP can and should give 
consumers full and complete advice about the need for proper and timely 
examinations. The ECP can set a reasonable expiration date on 
prescriptions. Product packaging and literature can fully inform 
consumers about the advisability of periodic examinations. ECPs can 
offer to set appointments in the future to encourage timely re-
examinations and can contact patients with reminders at appropriate 
intervals. Yet, the consumer should be allowed to choose based on that 
information, and should not be forced to do what an ECP wants based on 
the practitioner's refusal to provide a prescription.
                               conclusion
    When buyers are free to select their suppliers based on the 
availability of reasonable prices, high quality service, and 
convenience, everyone benefits. Legislation mandating the release of 
contact lens prescriptions can move us closer to that goal. The states 
firmly support mandatory contact lens prescription release.

    Mr. Stearns. Thank you, gentlemen.
    Ms. Gadhia, welcome.

                   STATEMENT OF AMI V. GADHIA

    Ms. Gadhia. Good afternoon, Chairman Stearns and Ranking 
Member Schakowsky and members of the subcommittee. Thank you 
very much for providing me the opportunity to come here today. 
My name is Ami Gadhia. I am assistant legislative counsel with 
Consumers Union, the nonprofit publishers of Consumer Reports 
magazine. I am pleased to be able to share our views on H.R. 
2221.
    Consumers Union supports H.R. 2221, the Fairness to Contact 
Lens Consumers Act, because we believe that it will encourage 
vigorous and fair competition in the contact lens market and 
that it will ultimately result in lower prices and better 
service for consumers. Consumers should be able to obtain their 
contact lens prescription from their eye doctor so that they 
may shop around and buy contact lenses from the vendor of their 
choice in a marketplace that is allowed to be competitive. 
According to the AOA, 32 States have passed such laws.
    In 1995 and 1997, Consumers Union's Southwest Regional 
Office conducted surveys of eye doctors in nine Texas cities to 
determine whether consumers could get their prescription from 
their eye doctor and use it to purchase lenses from the 
dispenser of their choice.
    The 1997 survey showed that 65 percent of eye doctors 
surveyed refused to release a contact lens prescription to a 
patient. These results indicated that in the majority of 
situations, consumers were prohibited from purchasing contact 
lenses from lower-priced vendors. In 1997, the Texas 
legislature passed the Contact Lens Prescription Act, to which 
H.R. 2221 is comparable.
    The 2000 survey and the subsequent survey analysis in 
January 2001 show that consumers have benefited from the Texas 
Contact Lens Prescription Act. Eye doctors have accepted that 
they must release a prescription to a patient. Consumers have 
acquired the power to shop around for lower-priced contact 
lens, and they have greater choices. In addition, eye doctors 
have responded to this more competitive marketplace by lowering 
prices and providing other services to patients, such as 
conveniently mailing lenses directly to them and selling lenses 
in 6-month bundles.
    However, the 2000 survey also revealed certain areas of the 
Texas law that when put into practice still make it difficult 
for consumers to obtain their contact lens prescriptions. For 
example, while eye doctors surveyed said that they would now 
release prescriptions to patients, 57 percent said they would 
not release a prescription unless patients came back for 
follow-up visits, even if the patient had previously worn the 
same contact lenses.
    H.R. 2221 addresses the issue of eye doctors conditioning 
the release of prescriptions on paid follow-up visits in 
section 2(b)(2). It prohibits eye doctors from requiring 
additional payment beyond the exam fee as a condition of 
prescription release. However, if an eye doctor were to 
condition the release of the prescription on an unpaid follow-
up visit, it is our opinion that it would be violating the 
spirit, if not the letter, of the legislation.
    H.R. 2221 also allows eye doctors to control the quality of 
care of patients and to require medically necessary follow-up 
visits. Section 2(a) of the bill states that the eye doctor 
must release the prescription to the patient upon the 
completion of a contact lens fitting. The bill further defines 
contact lens fitting in section 8, to include medically 
necessary follow-up examinations.
    Section 3(3) also allows eye doctors to write a 
prescription that expires in less than the otherwise required 1 
year if the patient's medical condition so warrants. In 
addition, patients must still rely on an eye doctor for exams 
to renew their prescriptions, check their vision, and to 
respond to any problems they are experiencing. And because 
contact lens are worn directly on the eye, any discomfort would 
lead those patients back to their eye doctors for help.
    Eye doctors surveyed by Consumers Union also cited 
protecting themselves from liability as a reason to refuse to 
release prescriptions directly to patients. However, assuming 
that an eye doctor provides a reasonable level of care, it 
seems the doctors would have little to worry about in terms of 
liability, especially for the actions of another that result 
from the legal release of a prescription to the patient.
    Concerns over the liability of eye doctors are perhaps 
misplaced because the lenses that consumers receive from a 
doctor's office are in most cases shrink-wrapped and packaged 
in the same manner as those consumers would receive from 
another vendor. The doctor-patient relationship is one based on 
care and trust, and doctors should not be able to force a 
consumer to continue seeing them by holding the consumer's lens 
prescription hostage.
    Our experience with the Contact Lens Prescription Act in 
Texas indicates that the Fairness to Contact Lens Consumers Act 
would most likely result in lower prices and better service for 
consumers, and Consumers Union encourages its passage.
    Thank you.
    [The prepared statement of Ami V. Gadhia follows:]
  Prepared Statement of Ami V. Gadhia, Assistant Legislative Counsel, 
                            Consumers Union
                                summary
    Consumers Union 1 supports H.R. 2221, the ``Fairness to 
Contact Lens Consumers Act,'' because we believe that it will encourage 
vigorous and fair competition in the contact lens market, and that it 
will ultimately result in lower prices and better service for 
consumers. Consumers should be able to obtain their contact lens 
prescription from their eye doctor, so that they may shop around and 
buy contact lenses from the vendor of their choice in a marketplace 
that is allowed to be competitive. According to the American Optometric 
Association, thirty-two states have passed such laws.2
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    \1\ Consumers Union is a non-profit membership organization 
chartered in 1936 under the laws of the state of New York to provide 
consumers with information, education, and counsel about goods, 
services, health, and personal finance, and to initiate and cooperate 
with individual and group efforts to maintain and enhance the quality 
of life for consumers. Consumers Union's income is solely derived from 
the sale of Consumer Reports, its other publications, and from 
noncommercial contributions, grants, and fees. In addition to reports 
on Consumers Union's own product testing, Consumer Reports, with more 
than 4 million paid circulation, regularly carries articles on health, 
product safety, marketplace economics, and legislative, judicial, and 
regulatory actions that affect consumer welfare. Consumers Union's 
publications carry no advertising and receive no commercial support.
    \2\ ``Passive Verfication: What's It Mean?'', Edited by Joseph P. 
Shovlin, O.D, November 2002. Available at http://www.revoptom.com/
index.asp?page=2X716.htm. Downloaded September 6, 2003.
---------------------------------------------------------------------------
    Two surveys conducted by Consumers Union's Southwest Regional 
Office in 1995 and 1997 indicated that in the majority of situations, 
consumers were unable to obtain their contact lens prescription from 
their eye doctor and that as a result, they were prohibited from 
purchasing contact lenses from lower-priced vendors. In 1997, the Texas 
Legislature passed the Contact Lens Prescription Act, to which H.R. 
2221 is comparable.
    An October 2000 follow-up survey and subsequent survey analysis in 
January 2001 show that consumers have benefited from the Texas Contact 
Lens Prescription Act. Eye doctors have accepted that they must release 
a prescription to a patient 3, consumers have acquired the 
power to shop around for lower-priced contact lens, and they have 
greater choice. In addition, eye doctors have responded to this more 
competitive marketplace by lowering prices and providing other services 
to patients.
---------------------------------------------------------------------------
    \3\ The Texas Contact Lens Prescription Act states that an eye 
doctor must provide the prescription at the time he or she ``determines 
the parameters of the prescription.'' (Texas Occupations Code, Chapter 
353, Contact Lens Prescription Act, Article 353.156(b)). H.R. 2221 
states that an eye doctor must release the prescription ``upon 
completion of a contact lens fitting.'' (H.R. 2221 Section 2(a)).
---------------------------------------------------------------------------
    The results of Consumers Union's survey in 2000 also demonstrated 
the possible cost savings for consumers because prices can vary 
dramatically. The cost of an eye exam ranged from $55 to $180. Prices 
for replacement boxes of contact lenses ranged from $18 to $42 for the 
same brand and type. Since buying lenses from the eye doctor may cost 
more, consumers benefit from immediate access to their prescriptions.
    Although the follow-up survey also showed that some doctors were 
refusing to give patients their contact lens prescriptions by 
exploiting loopholes in the Texas law, the overall result of the law 
was that most eye doctors comply with the law by giving patients their 
contact lens prescription, and that consumers are reaping the benefits 
in the form of lower prices for contact lenses.
                    consumers union's work in texas
    In 1995, Consumers Union conducted a survey of optometrists and 
ophthalmologists (``eye doctors'') in nine Texas cities 4 to 
determine whether consumers could get their prescription from their eye 
doctor and use it to purchase lenses from the dispenser of their 
choice. At that time, Consumers Union found that most eye doctors would 
not release the prescription to the patient, forcing consumers to 
purchase their lenses from the eye doctor who provided the exam. 
Consumes Union also determined from their 1995 survey that the price of 
such lenses varied considerably, and the practice of withholding the 
prescription limited the consumer's ability to shop for the best price.
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    \4\ Austin, Corpus Christi, Dallas, El Paso, Houston, Laredo, 
Midland/Odessa, San Antonio, and Tyler.
---------------------------------------------------------------------------
    In 1997, just before the introduction of the Contact Lens 
Prescription Act in the Texas State Legislature, Consumers Union again 
surveyed optometrists in the same nine Texas cities. Like the prior 
survey, this one was designed to recreate the actual experience of a 
consumer shopping for the best buy in contact lens care. From area 
phone books in nine cities, Consumers Union compiled a list of 
optometrists and eye care discount centers and made 71 
contacts.5
---------------------------------------------------------------------------
    \5\ Consumers Union staff inquired as to whether or not each office 
would fill a contact prescription that was over six months old without 
first examining the patient's eyes; they asked how much a contact lens 
eye exam would cost the consumer if he or she wanted to be sure that 
their prescription had not changed; they asked if the optometrist would 
give us our contact lens prescription; and they requested prices of 
replacement lenses. To be consistent, the questions focused solely on 
clear daily wear soft contact lenses.
---------------------------------------------------------------------------
    Of the 71 inquiries to Texas Optometrists, only 24 responded that 
they would release a contact lens prescription to a patient. Forty-six 
practitioners, or 65 percent, refused to release the prescription to a 
patient. In addition to holding the prescription, some eye doctors also 
resisted competition by creating package deals that tied the consumer 
to them in the future. A typical package deal included the eye exam, a 
set of lenses, a follow-up visit, and a cleaning kit.
    In addition, consumers were often unaware that their eye doctor 
would not release the contact lens prescription until after they 
purchased a package deal. They were therefore forced into returning to 
that eye doctor for their replacement contacts unless they wanted to 
pay for another exam.
    Finally, the 1997 survey found that when a patient returned to the 
optometrist for replacement lenses, replacement costs varied 
widely.6 A package deal that initially appeared to be a 
bargain may actually have cost consumers more in the long run. A 
patient could probably save money by paying for the eye exam only and 
having the prescription filled elsewhere.
---------------------------------------------------------------------------
    \6\ In 1997, the replacement costs ranged from $40 to $140 a pair. 
Consumers Union does not have updated dollar figures for this survey 
result.
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         the texas contact lens prescription law and h.r. 2221
    In 1997, the Texas Legislature passed the Contact Lens Prescription 
Act. This act requires eye doctors to give a patient their contact lens 
prescription upon request, at the time that the eye doctor ``determines 
the parameters of the prescription.'' 7 The Texas law states 
that prescriptions expire after one year. Under the Texas law and the 
opinion of the state Optometry Board, eye doctors were also only 
required to give out a prescription once, so consumers who lost their 
prescriptions were left with no alternative but to purchase lenses from 
the prescribing doctor.
---------------------------------------------------------------------------
    \7\ Texas Occupations Code, Chapter 353, Contact Lens Prescription 
Act, Article 353.156(b).
---------------------------------------------------------------------------
    H.R. 2221 is comparable to the Texas law in that it requires eye 
doctors to release prescriptions for contact lenses to consumers. The 
Texas law requires the patient to request the prescription, while H.R. 
2221 improves on this provision by requiring the eye doctor to give the 
prescription to all patients.
    H.R. 2221 is also similar to the Texas law in that it requires 
prescriptions to be for at least one year unless medically indicated to 
expire in a shorter time period. This ensures that eye doctors do not 
place arbitrary expiration dates on the prescription to force the 
patient to return to the office for replacement lenses.
    Another issue that arises when comparing the Texas law and H.R. 
2221 is that of active versus passive verification by an eye doctor to 
a third party of a consumer's prescription. The Texas law was silent on 
the issue of verification, and H.R. 2221 requires the Federal Trade 
Commission to study this issue.
    Consumers Union believes that as long as a vendor has a reason to 
believe that the prescription is still valid, i.e., as long as there is 
evidence of some kind (such as a fax of the prescription), then passive 
filling should be appropriate. A reasonable period of time for 
verification might be two days, but this is a debate best worked out 
between the eye doctors and vendors. Our goal is to ensure that 
consumers with a valid prescription can get it filled by whomever they 
choose, and to ensure that the system accommodates that choice.
                       the texas law in practice
    In order to determine if eye doctors were complying with the new 
Texas statute, in October 2000 Consumers Union conducted a follow-up to 
its two prior surveys. Consumers Union reviewed 44 complaints with the 
Texas Optometry Board 8, and surveyed optometrists in the 
same nine cities as in the prior surveys.
---------------------------------------------------------------------------
    \8\ While the complaint information was largely anecdotal, the 
files revealed interesting details about the process some consumers had 
to go through to get their contact lens prescriptions.
---------------------------------------------------------------------------
    A January 2001 analysis of the October 2000 follow-up survey shows 
that consumers have benefited from the Texas Contact Lens Prescription 
Act. Eye doctors have accepted that they must release a prescription to 
a patient 9, consumers have acquired the power to shop 
around for lower-priced contact lens, and they have greater choice. In 
addition, eye doctors have responded to this more competitive 
marketplace by lowering prices and providing other services to 
patients, such as conveniently mailing lenses directly to them (and as 
is done by third-party contact lens vendors) and selling lenses in 6-
month bundles.
---------------------------------------------------------------------------
    \9\ The Texas Contact Lens Prescription Act states that an eye 
doctor must provide the prescription at the time he or she ``determines 
the parameters of the prescription.'' (Texas Occupations Code, Chapter 
353, Contact Lens Prescription Act, Article 353.156(b)). H.R. 2221 
states that an eye doctor must release the prescription ``upon 
completion of a contact lens fitting.'' (H.R. 2221 Section 2(a)).
---------------------------------------------------------------------------
    However, the survey also revealed certain areas of the Texas law 
that, when put into practice, show ways that the Texas law can be 
improved upon. For example, while eye doctors surveyed said they would 
now release prescriptions to patients, most required follow-up visits 
before releasing the prescription, even for long-time contact lens 
wearers with no medical problems. Fifty-seven percent of optometrists 
would not release a prescription unless patients came back for a 
follow-up visit, even if the patient had previously worn the same 
contact lenses.
    The review of the complaints filed with the Texas Optometry Board 
provided anecdotal evidence of a number of other barriers to 
competition in the contact lens market. About one third of contact lens 
complaints to the Board reviewed by Consumers Union involved follow-up 
cases where doctors refused to release prescriptions because patients 
did not come back for a follow up exam.
    Under H.R. 2221, an eye doctor conditioning the release of a 
patient's prescription on a paid follow-up visit would be violating 
Section 2(b)(2) of the legislation. But even if the eye doctor were 
conditioning release of the prescription on a free follow-up visit, he 
or she would at the very least be violating the spirit of the 
legislation. While Texas legislation in 2001 failed to correct this 
problem, the Board of Optometry issued a rule later that year requiring 
that follow-up exams must be medically indicated and must occur within 
30 days of the original fitting exam.
    What is more, many patients who have worn contact lenses before do 
not need to return for a follow-up visit to finalize their 
prescription, and eye doctors have a clear financial interest in 
bringing consumers back into their store. A long-time contact lens 
wearer, and particularly a typical wearer of two-week disposable soft 
contact who likes his or her lenses, can probably be examined and 
``fitted'' at a single visit for replacement lenses, according to the 
Contact Lens Clinic at the University of Washington.10
---------------------------------------------------------------------------
    \10\ Contact Lens Clinic at the University of Washington, http://
www.depts.washington.edu/ophthweb/contacts.html. Downloaded September 
7, 2003.
---------------------------------------------------------------------------
    The 2000 Consumers Union survey also found evidence of eye doctors 
charging customers for a ``service agreement'' covering follow-up 
visits that tied the patient to that practitioner's office. Some eye 
doctors also refused to release the prescription if the patient's 
insurance company was late paying a claim. We see no reason why the 
consumer should be prevented from shopping around for the lowest price 
for contact lenses because of a dispute between the insurance company 
and the provider.
                 quality of care and liability concerns
    The majority of optometrists surveyed by Consumers Union in 1997 
cited two particular reasons for refusing to release prescriptions 
directly to all patients: to control the quality of care and to protect 
themselves from liability. Regarding the first concern, to ensure that 
a patient continues to receive quality eye care, most of those surveyed 
said that a contact lens is a ``medical device'' and therefore requires 
a professional's care. They say it is in the patient's own best 
interest that they do not release the prescription.
    However, patients must still rely on an eye doctor for exams to 
renew their prescriptions, check their vision, and to respond to any 
problems they are experiencing. And, because contacts are worn directly 
on the eye, any discomfort will lead most patients back to their eye 
doctor for help.
    In the case of replacement lenses, the primary protection of 
product quality rests with the manufacturer, since most eye doctors 
sell replacement lenses in pre-packaged containers, as do other 
dispensers.11 Furthermore, regardless of the source, 
patients who get these pre-packaged lenses can and should always check 
the expiration date on the package.
---------------------------------------------------------------------------
    \11\ If a consumer were given replacement lenses that had a broken 
seal, we would advise them to return the lenses for a different box, 
unless the patient has watched the optometrist remove them from the 
box. In reality, the eye doctor is not handing over the box of 
replacements; his employees are doing so.
---------------------------------------------------------------------------
    Regarding liability, many of the offices contacted in Consumers 
Union's 1997 survey said that the practitioner would not release the 
contact lens prescription to the patient for dispensing elsewhere 
because the prescribing eye doctor would still be held liable if the 
prescription were filled incorrectly by a different vendor. However, 
assuming that an eye doctor provides a reasonable level of care, it 
seems that doctors would have little to worry about in terms of 
liability, especially for the actions of another (e.g., either the 
third-party vendor or the lens manufacturer) that result from the legal 
release of a prescription to the patient.
                               conclusion
    Contact lenses are a fact of daily life for millions of consumers. 
The increasing popularity of daily-wear, 2-week, and 30-day disposable 
lenses means that the number of consumers seeking the most affordable 
contact lenses will only grow. Consumers Union supports H.R. 2221 
because it will give consumers the means to shop around to find contact 
lenses at the best price.
    Concerns over the liability of eye doctors are perhaps misplaced, 
because the lenses that consumers receive from a doctor's office are in 
most cases shrink-wrapped and packaged in the same manner as those 
consumers would receiver from another vendor. The doctor-patient 
relationship is one based on care and trust, and doctors should not 
force a consumer to continue seeing them by holding the consumer's lens 
prescription hostage. Our experience with the Contact Lens Prescription 
Act in Texas indicates that the ``Fairness to Contact Lens Consumers 
Act'' will most likely result in lower prices and better service for 
consumers, and Consumers Union urges its passage.
                                 ______
                                 
                           Executive Summary
    In order to determine if Texas eye doctors are releasing contact 
lens prescriptions in compliance with the Contact Lens Prescription 
Act, Consumers Union recently conducted a survey in nine cities: 
Austin, Corpus Christi, Dallas, El Paso, Houston, Laredo, Midland/
Odessa, San Antonio, and Tyler.
    The survey showed that eye doctors are generally releasing 
prescriptions; however, many are requiring patients to attend follow-up 
visits and/or buy a first supply of lenses from them. These practices, 
and others currently allowed under the statute, ensure that consumers 
face an uphill battle if they want to shop around for the best deal in 
contact lenses.

 Most eye doctors now release prescriptions, although eye doctors have 
        created a number of frustrating (but currently legal) barriers 
        to the reasonable and fair use of the prescription:
    1. 57% of optometrists would not release a prescription unless 
            patients came back for a follow-up visit, even if the 
            patient had previously worn the same contact lenses. About 
            a third of contact lens complaints to the Texas Optometry 
            Board reviewed by Consumers Union involved follow-up cases 
            where doctors refused to release prescriptions because 
            patients did not come back for a follow-up exam.
    2. The prohibition against faxed prescriptions prevents ready 
            transfer to internet or 1-800 type distributors;
    3. Some eye doctors write prescriptions for the minimum period 
            allowed under the law (one year) regardless of the 
            individual's history with the lenses, and refuse 
            prescription release if the customer has already purchased 
            one year's worth of lenses;
    4. Some eye doctors charge customers for a ``service agreement'' 
            covering follow-up visits that ties the patient to that 
            practitioner's office;
    5. Eye doctors are only required to give out a prescription once, 
            according to the Optometry Board, leaving consumers who 
            lose their prescriptions with no alternative but to 
            purchase lenses from the prescribing eye doctor; and
    6. Eye doctors may refuse to release the prescription if insurance 
            companies are late paying a claim.
 Our survey found only two eye doctors who would not release a 
        prescription at all. Four additional optometrists would not 
        release prescriptions unless patients first bought an initial 
        (three or six month) supply of contact lenses from them. Both 
        of these practices are in direct violation of the Texas Contact 
        Lens Prescription Act.
 Shopping for lenses and services saves money. The cost of an eye exam 
        ranged from $55 to $180. Prices for replacement boxes of 
        contact lenses ranged from $18 to $42 for the same brand and 
        type. Since buying lenses from the eye doctor may cost more, 
        consumers benefit from immediate access to their prescriptions. 
        When a person chooses an eye doctor, cost should not be the 
        only factor, of course. Finding a doctor you can trust to 
        provide quality care at a fair price may take time and 
        research, but it pays off in the long run.
            introduction: the contact lens prescription act
    In March 1997, the Southwest Regional Office of Consumers Union 
released a survey of optometrists and ophthalmologists (``eye 
doctors'') from nine Texas cities to see if consumers could obtain 
their contact lens prescriptions from their eye doctor and use them to 
buy lenses from the dispenser of their choice. At that time, Consumers 
Union found that most eye doctors would not release a contact lens 
prescription directly to patients. We also found that since the cost of 
contacts varied widely, eye doctors' refusals to release prescriptions 
limited a consumer's ability to find the best price.
    In June 1997, the 75th Texas Legislature passed House Bill 196, 
``The Contact Lens Prescription Act'' (recodified in 1999 as Chapter 
353 of the Occupations Code). This Act made the release of contact lens 
prescriptions mandatory, but it also contained a number of loopholes 
that enabled eye doctors to manipulate the law to protect their contact 
lens sales.
    If a patient requests a contact lens prescription during the 
initial or annual exam, the eye doctor must provide the prescription at 
the time he or she ``determines the parameters of the prescription.'' 
\1\ The legislation gave eye doctors the flexibility to determine a 
contact lens wearer's needs based on the ocular health of individual 
patients. For example, a new user might need to try new lenses for a 
week and return for a follow-up visit to be sure the new lenses worked 
properly. An existing wearer making no changes in the lens type might 
need only an exam and verification that the current lenses are 
comfortable.
---------------------------------------------------------------------------
    \1\ Occupations Code, Chapter 353, Contact Lens Prescription Act, 
Article 353.156(b).
---------------------------------------------------------------------------
    Some eye doctors, with the blessing of the Texas Optometry Board, 
have instead used the flexibility granted by statute to create 
procedures that apply to every patient-in particular the follow-up 
visit requirement. Eye doctors who require a second visit can refuse to 
provide the contact lens prescription to those who did not return for 
the follow-up.\2\
---------------------------------------------------------------------------
    \2\ Texas Administrative Code, Title 22, Part 14, Chapter 279, Rule 
279.7(b)(1). Also ibid.
---------------------------------------------------------------------------
    Under the statute, the patient can request the prescription at any 
time while it is valid (prescriptions cannot be written for less than a 
year) \3\ but if the prescription has already been filled by the eye 
doctor, the eye doctor can refuse to provide it.\4\ Although the 
statute specifically requires eye doctors to extend the prescription 
time upon request of a patient, it does not specify that this extension 
applies to patients who have already purchased a full one year supply 
of lenses.\5\ Because the prescription specifies the number of lenses, 
people losing or tearing a lens cannot replace it without another exam.
---------------------------------------------------------------------------
    \3\ Occupations Code, Chapter 353, Contact Lens Prescription Act, 
Article 353.153 and 353.157(B)(5).
    \4\ Occupations Code, Chapter 353, Contact Lens Prescription Act, 
Article 353.103(d) and 353.152(6).
    \5\ Occupations Code, Chapter 353, Contact Lens Prescription Act, 
Article 353.155(b) and Optometry Board interpretations as expressed to 
consumers in responses to complaints, TOB complaint # 00065, March 1, 
2000, and TOB complaint #00009, October 5, 1999.
---------------------------------------------------------------------------
    A ``valid'' prescription must be an original and picked up in 
person or mailed. A faxed prescription is not ``valid.'' \6\ Further 
the eye doctor is only required to provide the prescription once, 
according to Optometry Board interpretation.\7\ The statute actually 
says that an eye doctor must provide the prescription ``at any time 
during which the prescription is valid,'' and does not limit the number 
of times eye doctors must give out an original prescription.\8\
---------------------------------------------------------------------------
    \6\ Occupations Code, Chapter 353, Contact Lens Prescription Act, 
Article 353.101 and 353.152(5).
    \7\ Texas Optometry Board complaint, TOB#00047, December 2, 1999, 
letter to complainant, 1/3/2000.
    \8\ Occupations Code, Chapter 353, Contact Lens Prescription Act, 
Article 353.156(c).
---------------------------------------------------------------------------
    Eye doctors can refuse to release prescriptions for medical 
reasons, if financial obligations have not been met (including pending 
insurance claims), or if the request is made after the first 
anniversary of the patient's last eye exam. If the doctor refuses to 
release the prescription he or she must tell the patient the reason and 
document it in the patient's record.\9\
---------------------------------------------------------------------------
    \9\ Occupations Code, Chapter 353, Contact Lens Prescription Act, 
Article 353.157.
---------------------------------------------------------------------------
    Eye doctors cannot charge a fee in addition to the examination and 
fitting fees as a condition for releasing the prescription. Eye doctors 
cannot make the release of a contact lens prescription conditional on a 
patient's agreement to buy contact lenses from the eye doctor.\10\ 
However, Optometry Board action on consumer complaints indicates that 
eye doctors may be able to refuse patient requests for their 
prescriptions if patients do not agree to attend (and sometimes pay 
for) ongoing follow-up care. Eye practitioners who place unnecessary 
burdens on their customers in the name of ``ocular health'' violate the 
spirit, if not the letter, of the Contact Lens Prescription Act.
---------------------------------------------------------------------------
    \10\ Occupations Code, Chapter 353, Contact Lens Prescription Act, 
Article 353.158.
---------------------------------------------------------------------------
                              survey 2000
    In order to determine if eye doctors are complying with the new 
statute, Consumers Union conducted a new survey in October 2000 and 
reviewed 44 complaints filed with the Optometry Board related to 
contact lenses. While the complaint information is largely anecdotal, 
the files reveal interesting details about the process some people have 
to go through to get their contact lens prescription.
    Consumers Union again surveyed optometrists in the same nine 
cities: Austin, Corpus Christi, Dallas, El Paso, Houston, Laredo, 
Midland/Odessa, San Antonio and Tyler. This survey found that while eye 
doctors now say they will release prescriptions to patients, most 
require a follow-up visit before releasing the prescription, even for 
long time contact lens wearers with no medical problems. In addition, 
complaints filed with the Optometry Board provide anecdotal evidence of 
a number of other barriers to competition in the contact lens market.
                                findings
 Two of 83 optometrists surveyed would not release a prescription at 
        all, while four more would not release it unless patients first 
        agreed to buy an initial supply of contact lenses from them. 
        These are clear violations of the Contact Lens Prescription 
        Act.
 57% of optometrists surveyed would not release a prescription unless 
        patients came back for a follow-up visit, even if the patient 
        had previously worn the same type of contact lenses. About a 
        third of the contact lens complaints to the Texas Optometry 
        Board reviewed by Consumers Union involved follow-up cases 
        where doctors refused to release the prescription because 
        patients did not come back for their follow-up exam.
 Shopping for lenses and services saves money. The cost of an eye exam 
        ranged from $55-$180. Prices for replacement contact lenses 
        ranged from $18 to $42 for the same brand and type. Since 
        buying lenses from the eye doctor may cost more, consumers 
        benefit from immediate access to their prescriptions.
                             survey method
    We conducted the survey in October 2000 by telephone in nine Texas 
cities: Austin, Corpus Christi, Dallas, El Paso, Laredo, Midland/
Odessa, San Antonio, and Tyler. We compiled a list of 83 optometrists 
and eye care discount centers from area telephone books. Posing as 
long-time contact lens wearers, we asked questions designed to find the 
best buy in contact lens care. We asked what a contact lens exam and 
replacement lenses would cost. We also asked if our prescription could 
be released and if the procedure regarding initial exams and follow-ups 
could be explained to us.
    To obtain consistent data, our questions focused solely on frequent 
replacement soft lenses because they are the most commonly used 
contacts (see page 7 for a description of common types of contact 
lenses). Of the 34 million contact lens wearers in the United States, 
85% wear soft contact lenses.\11\
---------------------------------------------------------------------------
    \11\ Contact Lens Council, Landover, Md., 
www.contactlenscouncil.org, download 11/1/00, based on 1999 data.
---------------------------------------------------------------------------
                          prescription release
    Of the 83 respondents, most said they would release the contact 
lens prescription. Only two indicated that they would not. This is a 
significant improvement since the passage of the new statute.
    But we found four additional offices that will not release contact 
lens prescriptions unless the patient buys the first supply (generally 
two boxes for use over three months) of lenses from them. By refusing 
to release contact lens prescriptions without strings attached, these 
eye doctors are not complying with the law. The Texas Contact Lens 
Prescription Act forbids eye doctors from refusing to release contact 
lens prescriptions or conditioning the release of a contact lens 
prescription on the patient's agreement to buy contact lenses or other 
ophthalmic goods.\12\
---------------------------------------------------------------------------
    \12\ Occupations Code, Chapter 353, Contact Lens Prescription Act, 
Article 353.156 and 353.158(2).
---------------------------------------------------------------------------
    For consumers shopping for contacts and exam services, the terms 
that eye care offices use to describe what is required can be 
misleading. In our survey, many eye care offices said we would need to 
buy a ``first set of lenses,'' or ``first lenses,'' or a ``first 
supply'' or ``pair of lenses'' from them. In some cases this meant only 
a ``trial pair'' or two contact lenses (one for each eye). State law 
allows a charge for the lenses consumers take away in their eyes. To 
check the accuracy of our understanding, we made a second round of 
phone calls to all the doctors who required the purchase of lenses and 
determined that in four cases these general terms actually meant that 
the consumer must purchase boxes of lenses (a three or six month 
supply)--a clear violation of the statute.
    Increasing shoppers' confusion, most eye care offices we called 
initially quoted us a package price that included the cost of a three 
month, a six month, or even a year supply of lenses. In most cases we 
had to specifically ask the office to give us only the cost of the exam 
and fitting (and any follow-up charge where mandatory), and then ask 
for the cost of lenses so we could compare these costs to other lens 
dispensers.
    Despite the confusion, shopping still makes sense. Consumers who 
call for the best price can save $40 on each three month supply of 
lenses (two boxes), and as much as $90 on the cost of an exam. Exam 
costs ranged from $55 to $180.\13\ While Tyler had a $30 difference in 
the highest and lowest cost of their exams, Austin had an $89 
difference. When a person chooses an eye doctor, cost should not be the 
only factor, of course. Finding a doctor you can trust to provide 
quality care at a fair price may take time and research, but it pays 
off in the long run.
---------------------------------------------------------------------------
    \13\ Many of the optometrists surveyed had two different prices: a 
price for exams and a package price. Packages include the exam, a set 
of lenses, a follow-up visit, and a cleaning kit.
---------------------------------------------------------------------------
    A consumer who can take a prescription anywhere to be filled may 
save significantly. When we shopped for a box of Acuvue soft lenses 
(each box has six lenses, or a three month supply) we found prices 
ranged from $18 to $42 per box, although prices within some cities 
tended to be closer. On average, optometrists in most cities charged 
$20 to $25 a box, although in Houston and El Paso the difference in the 
highest and lowest costs for boxes of Acuvue soft lenses was actually 
$20-with some offices charging twice as much as others.
    Some optometrists quoted their prices in terms of six months or a 
year supply. In some cases-but not all-consumers can save money by 
buying in bulk. It can also pay to buy online. For example, on the day 
we checked, 1-800Contacts charged $19.95 per box of Acuvues, and the 
shipping was free for online orders. Lens Express also charges $19.95 
per box of Acuvues; however, the price does not include a $5.95 
shipping charge.\14\
---------------------------------------------------------------------------
    \14\ https://order.1800contacts.com/, http://www.lensexp.com
---------------------------------------------------------------------------
    Consumers in Texas face barriers to shopping on line or at discount 
centers. According to the Optometry Board, eye doctors are only 
required to give an original prescription to a patient once.\15\ And 
faxes or photocopies of the original cannot be filled. Therefore 
consumers who lose their original prescription must purchase their 
lenses from the examining eye doctor thereafter.
---------------------------------------------------------------------------
    \15\ Texas Optometry Board complaint, TOB#00047, December 2, 1999.
---------------------------------------------------------------------------
    And consumers who buy online may be told by their eye doctor that 
they must come in person, pick up an original prescription and mail it 
to the online service.\16\ If consumers want to choose a different 
online service with a better deal a few months later, the eye doctor 
can refuse to provide a second original prescription. Finally, each 
prescription is written for a specific number of lenses. If a consumer 
tears a lens or loses a box, then the prescription can ``run out'' long 
before the year is up, and the eye doctor can require a new exam before 
writing it out again.
---------------------------------------------------------------------------
    \16\ Interview with Joe Zeidner and Jonathan Coon, 1800-contacts, 
December 11, 2000, and eye doctor written responses to Request for 
Release of Contact Lens Prescription.
---------------------------------------------------------------------------
                          the follow-up visit
    In our survey we found that 57% of eye doctors require follow-up 
exams before releasing a prescription, but 43% do not. The Texas 
Contact Lens Prescription Act does not require patients to return for a 
follow-up visit in order to take away their prescription. However, 
Board Rule 279.7 (issued by the Optometry Board before passage of the 
Act and still in place) requires every patient to have at least one 
follow-up visit.\17\ Almost half of the eye doctors surveyed are in 
violation of this rule, since they allow patients with no medical 
problems to take away their prescriptions after a single visit. These 
doctors are in compliance with the spirit of the statute, however.
---------------------------------------------------------------------------
    \17\ Texas Administrative Code, Board interpretation number seven, 
Rule 279.7
---------------------------------------------------------------------------
    The requirement that lens wearers return for a follow-up visit in 
order to get their prescription filled elsewhere creates an unnecessary 
barrier to competition and is clearly not aimed at the specific medical 
needs of individual patients. According to a recent FDA survey of eye 
care practitioners, the majority recommend annual visits for contact 
lens wearers.\18\
---------------------------------------------------------------------------
    \18\ An FDA Survey of U.S. Contact Lens Wearers, Contact Lens 
Spectrum, July 1997. Available on the FDA web site at www.fda.gov.
---------------------------------------------------------------------------
    Among wearers who actually complained to the Optometry Board about 
their problems getting a prescription released, the follow-up visit 
restriction was one of the most commonly cited barriers. Consumers 
Union reviewed 44 contact lens complaints from the Texas Optometry 
Board. About a third involved follow-up, where doctors refused to 
release the prescription because patients did not come back for one of 
the doctor's recommended follow-up visits. Some of these were long time 
wearers of contact lenses.\19\
---------------------------------------------------------------------------
    \19\ Texas Optometry Board complaints, TOB #s: 99098, 00008, 99058, 
98137, 99051, 99116, 00100, 99080, 00113, 99059, Vicki Amos 1999, 
Michael Morrow 1999, Deborah Young 1998, Maggie Saucedo 1999, Patricia 
Novoa 1999.
---------------------------------------------------------------------------
    Nineteen-year old Ms. B. of Longview visited Childress Vision 
Clinic for a contact lens exam on November 24, 1998. She had already 
worn contacts for five years. According to the Childress Clinic, Ms. B. 
attended a follow-up visit on December 2 to fit the lenses and ``allow 
the lenses to conform to their ocular environment.'' She sat in the 
office for about an hour with the lenses in her eyes. At that time the 
clinic sold her a ``continuing service agreement'' (costing $100 for a 
year) and told her that she would have to return for ``contact lens 
progress evaluations.'' She returned again on December 30 to pick up 
her lenses, and the eye doctor scheduled her for yet another follow-up 
exam January 5. She did not show up for this visit.
    In May, Ms. B called the Childress Clinic because she had ripped 
her lens. She did not like the price quoted for replacements and asked 
for her prescription. According to her mother, the clinic refused and 
the family could not get a satisfactory explanation. They asked their 
insurance carrier to intervene. ``Our insurance company said Dr. 
Childress said he couldn't give the prescription because her exam 
wasn't complete,'' Ms. B's mother wrote to the Optometry Board. Her 
daughter had in fact visited the office three times in the course of a 
month, and had apparently experienced no trouble with the prescription 
thereafter. The ``service agreement'' she purchased required her to 
return for an exam every six months, in addition to the series of 
initial exams.
    When her mother complained to the Optometry Board, the eye doctor 
agreed to a fee refund but did not agree to provide a copy of the 
prescription. The Board wrote to the family that ``the complaint is the 
type of business dispute which is not within the Board's 
jurisdiction,'' and further noted that the eye doctor had offered her a 
fee refund. The Optometry Board closed its file.\20\
---------------------------------------------------------------------------
    \20\ Texas Optometry Board complaint, TOB#99098, June 25, 1999.
---------------------------------------------------------------------------
    This ``service contract'' was not a singular incident. Some eye 
doctors require a patient to sign up for a long-term contract of 
ongoing care, and if they are not available for that ongoing care, they 
cannot have their prescription.
    Amy Greer, a medical student in Lubbock, went to an eye doctor in 
her home town of North Richland Hills for a contact lens exam and 
prescription in the summer of 1999. At that time, the office charged 
her $120 in exam fees, including a $66 fee for ``professional fees 
which include any contact lens related visits for a year.'' She did not 
purchase contact lenses, but a few weeks later she asked for her 
prescription. At that point, the eye doctor told her that since she 
would not be available for ``ongoing follow-up care'' he would refund 
her fee of $66 and forward her exam records to a doctor in the Lubbock 
area, but he did not agree to give her the prescription.
    ``I am professionally liable for patients for which I write contact 
lens Rx's,'' he told the Optometry Board. ``We do routinely release 
contact lens Rx's as long as the patient realizes that we are still the 
prescribing doctor and responsible for follow-up care services. It is 
hardly fair to ask a doctor to be responsible for a patient for an 
entire year and then not allow the doctor access to that patient to 
insure that all is physiologically well as per FDA guidelines.''
    According to this doctor, patients should return for follow-up 
visits at least every three months for extended wear contacts, and 
every six months for daily wear contacts. According to the final letter 
from the Optometry Board to Ms. Greer, the doctor is not required to 
release a contact lens prescription if no examination ``and/or follow-
up'' is provided to the patient. The Board recommended that she seek 
out an eye doctor in Lubbock, which she ultimately did, having to pay 
her exam fee all over again.\21\
---------------------------------------------------------------------------
    \21\ Texas Optometry Board complaint, TOB#99116, August 24, 1999 
and telephone interview with Amy Greer, December 13, 2000.
---------------------------------------------------------------------------
    How much care is really needed for regular contact lens consumers 
who are comfortable with their contacts?
    Most medical doctors do not sell pharmaceuticals or medical devices 
(the Food and Drug Administration categorizes contact lenses as a 
medical device). Physician investment in labs or testing facilities to 
which they refer patients is restricted to prevent a conflict of 
interest. The law places physicians at an arm's length from companies 
that profit on the tests, medical devices and drugs they prescribe 
because profit on these items might affect their medical judgement. In 
particular it might lead to overprescribing and unnecessary care. But 
eye care practitioners may sell the items they prescribe and make a 
profit. In this case, the financial interest in bringing people back to 
the office, where they will very likely purchase their lenses, may lead 
some eye doctors to overstate the medical need for follow-up visits. 
Eye doctors who place unnecessary burdens on all of their customers in 
the name of ``ocular health'' violate the intent of the Contact Lens 
Prescription Act, and illustrate the conflict of interest that exists 
when one business both prescribes and sells a medical product.
                            the ``fitting''
    Eye doctors say follow-up visits are required to complete the 
``fitting,'' for which they typically charge a fitting fee. But what 
exactly is the ``fitting,'' and does it require multiple visits to the 
eye doctor?
    In general, the eye exam measures the power of the prescription, 
while the fitting measures the shape of the front surface of the eye. 
The eye doctor typically uses an instrument called a keratometer to 
determine the proper curve and size for the contact lens. The eye 
doctor may also measure the dryness of the surface of the eye, making 
sure that once placed on the eye the lens fits and moves properly.
    For most consumers there is no bright line between the end of the 
``exam'' and the beginning of the ``fitting'' except that they believe 
both are generally done when they leave the office, especially if there 
are no changes in brand or type of lenses. A long-time contact lens 
wearer, and particularly a typical wearer of two week disposable soft 
contacts who likes his or her current lenses, can probably be examined 
and ``fitted'' at a single visit for replacement lenses, according to 
the Contact Lens Clinic at the University of Washington.\22\
---------------------------------------------------------------------------
    \22\ Contact Lens Clinic at the University of Washington, 
www.depts.washington.edu/ophthweb/contacts.html. Downloaded December 
13, 2000.
---------------------------------------------------------------------------
    But many eye doctors link the practice of ``fitting'' the lens with 
the follow-up visit requirement. ``Fitting'' must be ``complete'' 
before the office will release a prescription. When Laura A. of Austin, 
a contact lens wearer of several years, went with her father for an 
exam, he disputed the ``fitting'' charge prior to the start of the 
exam. Before even looking at Laura's eyes or her prescription the staff 
informed him that follow-up was mandatory.
    ``He was not pleased that we charge the fitting fee since she had 
been wearing contacts for several years,'' wrote the optometrist. ``We 
explained that even though she had been wearing lenses, we did not have 
any record of that and she would need to be treated as a new patient 
and return for a follow-up visit.'' \23\ For this office, there was no 
distinction between ``fitting'' and the follow-up requirement. And when 
Laura did not return for the follow-up visit, the office later told her 
father that he could not have her prescription.
---------------------------------------------------------------------------
    \23\ Texas Optometry Board complaint, TOB#99080, April 23, 1999.
---------------------------------------------------------------------------
    In some cases, eye doctors link the ``fitting'' directly with the 
purchase of a supply of lenses. If the consumer does not purchase a 
supply of lenses from the eye doctor, he or she won't ``finish'' the 
``fitting'' and therefore does not have to provide the contact lens 
prescription to the patient. When the eye doctor is willing to sell 
boxes of lenses directly without a follow-up exam, but not willing to 
give the consumer a prescription to buy those same boxes somewhere else 
without a follow-up exam, he or she is circumventing the law.
    Vicki A. of Houston wrote to the Board in 1999 after she was denied 
her son's contact lens prescription. Her son Mat was already a 
disposable soft contact lens wearer. During the initial visit the eye 
doctor examined the boy's eyes, measured them for contacts 
(``refitting''), and placed contacts in his eyes. While the eye doctor 
was placing the lenses, a staff person explained the charges: $60 exam 
fee, $50 for ``fitting'' and unlimited follow-up visits, and $90 for 4 
boxes of lenses (a six month supply).
    Ms. A. did not want to purchase the lenses from the eye doctor, and 
asked if she could have the prescription at the end of the fitting. ``I 
asked if I could pay for the trial pair and the fitting charges, and 
just get the prescription,'' she wrote. At this, the staff person 
instructed her son to remove the trial lenses from his eyes and said 
that if she didn't order the contacts her son could not wear the trial 
pair home. According to Ms. A., she would have to purchase six months 
of lenses ``in order to continue with the fitting'' and come back in 
six months for a follow-up visit. At that time, she could finally have 
the prescription if she wanted it.
    When queried by the Optometry Board, the eye doctor declared that 
her son had ``poor hygiene techniques'' and needed six months of 
observation. The Optometry Board told Ms. A. that this was ``a matter 
between the doctor and patient'' and not within its jurisdiction.\24\ 
Ms. A. was not the only consumer to complain to the Board that eye 
doctors require patients to purchase six months worth of lenses before 
finalizing the prescription and releasing it.\25\
---------------------------------------------------------------------------
    \24\ Texas Optometry Board complaint, [no complaint number], May 
24, 1999.
    \25\ Texas Optometry Board complaint, TOB#99003, September 18, 
1998. Texas Optometry Board complaint, TOB#99106, July 15, 1999.
---------------------------------------------------------------------------
    Doctors cite two main reasons for requiring follow-ups and/or 
requiring the patient to buy the first set or supply of lenses from 
them: finalizing the prescription (``fitting'') and liability.
    But many patients who have worn contact lenses before do not need 
to return for a follow-up visit to finalize their prescription, and eye 
doctors have a clear financial interest in bringing consumers back into 
their store. This conflict leads consumers to believe that there may be 
no medical basis for the return visit for ``fitting'' completion.
    People are used to seeing a medical doctor for a problem and having 
their prescriptions filled somewhere else. If the prescription is not 
satisfactory, they return to the doctor to discuss it. Similarly, 
contact lens wearers who have discomfort in their eyes will undoubtedly 
call or return to the eye doctor. If they do not return and purchase 
contact lenses on their own, the Texas Contact Lens Prescription Act 
says that eye doctors are not liable for a patient's subsequent use of 
a contact lens prescription.
    According to the Act, ``a physician, optometrist, or therapeutic 
optometrist is not liable for any subsequent use of a contact lens 
prescription by a patient if the physician, optometrist, or therapeutic 
optometrist does not examine the patient.'' \26\
---------------------------------------------------------------------------
    \26\ Occupations Code, Chapter 353, Contact Lens Prescription Act, 
Article 353.201.
---------------------------------------------------------------------------
                               insurance
    Under the Contact Lens Prescription Act, an eye doctor may refuse 
to provide a prescription if the consumer has not paid for the 
examination and fitting. Consumers who pay in cash generally pay on the 
way out and do not owe the eye doctor money. However, consumers who 
have vision coverage through their health insurance may only pay a 
copayment or a portion of the charge. If the insurance does not pay 
immediately, or if the eye doctor does not file the claim properly, 
consumers are told that they cannot have their prescription.
    Tangela J. of Dallas went to an eye doctor for a contact lens exam 
and fitting. She paid $79 for the exam and contacts, and her insurance 
company would pay the office an additional $20. When she returned to 
the office to pick up her lenses, she asked for her prescription. The 
eye doctor told her that the insurance company had not yet paid the $20 
so he did not have to release the prescription. When she called her 
insurance company, they said she had paid the correct amount and he 
should give her the prescription. She returned to the office again, and 
this time got her prescription-but only after the eye doctor confirmed 
by phone that the insurance check was in the mail.\27\
---------------------------------------------------------------------------
    \27\ Texas Optometry Board complaint, TOB#00114, August 28, 2000.
---------------------------------------------------------------------------
    Insurance companies who cover eye care sometimes prohibit eye 
doctors from withholding prescriptions over disputed claims, and 
include this in the contract between the doctor and the company. Even 
this is not foolproof.
    In the spring and summer of 1998, the five members of the H. family 
all went to an Austin eye doctor for exams and to renew their contact 
lens prescriptions. In September, the family was transferred to Idaho. 
Mr. H. contacted the eye doctor to collect their prescriptions and was 
told that ``because my insurance carrier had not completely paid on the 
claims submitted to them for the services rendered'' the office would 
not release the prescriptions. According to the insurance company, most 
of the claims had been paid and the only pending claim had been filed 
improperly and returned to the eye doctor for refiling. The insurance 
company also informed Mr. H. that its contract with the eye doctor 
prohibited him from withholding prescriptions over disputed claims.
    The family had to move without their prescriptions, and get another 
eye exam in Idaho. According to the eye doctor, the delay was the 
insurance company's fault. The eye doctor did not deny holding the 
prescription while he waited for payment, but he ultimately agreed to 
reimburse the family for their repeat exam.\28\
---------------------------------------------------------------------------
    \28\ Texas Optometry Board complaint, TOB#99057, February 16, 1999.
---------------------------------------------------------------------------
    No medical doctor outside the eye care arena would consider holding 
a prescription hostage to ensure payment of outstanding insurance 
claims. Eye doctors have been granted a special right to do this, 
regardless of the patient's needs. Insurance companies who prohibit eye 
doctors from withholding prescriptions recognize that this not good 
medicine, but it will continue as long as it is specifically allowed by 
law.
                            recommendations
    In order to ensure greater consumer choice when buying contacts, we 
recommend that the Texas Optometry Board:

 adequately enforce existing requirements that prohibit optometrists 
        from attaching across the board conditions to the release of 
        contact lens prescriptions. Optometrists who require customers 
        to buy a first supply of lenses from them before they will 
        release the prescriptions are violating the Texas Contact Lens 
        Prescription Act.
 change its follow-up visit rule to correspond to current law. This 
        rule as currently written-and the practice of requiring all 
        patients to return for follow-up exams generally-is not 
        consistent with the intent of the law. It protects an eye 
        doctor's contact lens sales by tying access to lenses to the 
        re-examination process while barring consumers who prefer to 
        shop online, at discount centers or elsewhere. Rather than 
        focusing on the health of the patient, this rule creates a 
        blanket policy for all customers even if they have been wearing 
        contact lenses without trouble for years.
    To encourage competition and ensure access to contact lens 
prescriptions, the Texas Legislature should amend the Contact Lens 
Prescription Act to:

 prohibit eye doctors from filling a prescription that they have 
        refused to release, unless the refusal is based on the 
        patient's ocular health as allowed under Section 353.157(b)(2);
 prohibit eye doctors from refusing to release a prescription based on 
        a bill or portion of a bill that remains unpaid due to a 
        pending or disputed insurance claim;
 specify that consumers may collect an original contact lens 
        prescription more than once while it is valid;
 allow dispensers to fill faxed prescriptions with a telephone 
        confirmation, enabling consumers to effectively access 800 line 
        and Internet discount firms;
 apply the mandatory extension of a prescription to both the length of 
        time the prescription is valid and to the number of contacts a 
        person may buy on that prescription. This will ensure that a 
        consumer who loses or damages a lens or box of lenses can 
        purchase new lenses without having to pay for another exam.
                               conclusion
    The Texas Contact Lens Prescription Act was intended to give 
consumers the right to take possession of their contact lens 
prescriptions in order to purchase contacts from the dispenser of their 
choice in a competitive marketplace. It has partially succeeded, but 
since its enactment some eye doctors have found new ways to protect 
their contact lens sales.
    By requiring follow-up exams and/or the purchase of a first set or 
supply of lenses, eye doctors are limiting consumer choice. They are 
instead attaching conditions to the release of prescriptions, which 
makes it harder for the patient to buy lenses from other vendors. In 
contrast, this is not the case in the rest of the medical field, where 
doctors examine patients and release prescriptions to be filled by any 
dispenser.
    Consumers should have the choice to buy their contact lenses from 
other vendors and not be forced to buy boxes of lenses from the doctor 
who examined them. Consumers who have worn contacts for a while without 
health complications should also have the choice to see the doctor for 
the initial exam and then receive their prescriptions instead of having 
to return for a follow-up exam. If there is discomfort because of the 
lenses, these patients are likely to return to the eye doctor just as 
they would with any other doctor who wrote a prescription.

    Mr. Stearns. Ms. Venable, welcome.

                   STATEMENT OF PEGGY VENABLE

    Ms. Venable. Thank you, Mr. Chairman, members. Thank you 
for inviting me. I am Peggy Venable. I'm State director of 
Texas Citizens for a Sound Economy, and I represent 25,000 
Texas consumers. We are also the State affiliate of National 
CSE, which has a membership of over 270,000. We support free 
market public policies and educate citizens on those.
    We applaud H.R. 2221 and its sponsors for introducing real 
competition and consumer choice into the contact lens market 
and working to eliminate the hurdles currently impeding the 
consumer's ability to purchase from the retailer of their 
choice.
    This is an important issue to consumers. I have worked with 
our members and other Texas consumers, and I am familiar with 
the regulatory hurdles which currently limit consumer choices 
in Texas. First, the contact lens consumers are often unaware 
that they have the opportunity to shop for contact lens. Of 
those who do know they can take their prescriptions to a 
retailer, many are frustrated by a system which allows the 
prescriber essentially to veto their purchasing decision by 
virtue of the positive verification system.
    Positive verification requires the prescribing eye care 
professional to respond to a retailer's request and to verify 
that the prescription is valid and current. Unfortunately, 
delays and outright failure to respond to the verification 
process eliminate those consumers' choices. That's what I would 
like to address today: the challenges that positive 
verification place on the consumers' ability to shop.
    During the last regular legislative session in Texas, which 
ended late May, CSE supported legislation which would have 
established a passive verification process similar to 
California law. It allowed time for a prescriber to respond. 
And if they didn't respond, the retailer would be able to 
assume the prescription was valid since it was not challenged 
by the prescriber and filled that prescription.
    Unfortunately, that legislation did not pass. And currently 
Texas process doe not serve the consumer well. The Texas Board 
of Optometry acknowledged 2,500 complaints from consumers who 
were unable to get their prescription filled. I should note 
that of those, their representative in testimony before the 
State legislature said only two of those were valid. We found 
this assumption and this proclaimant to be outrageous and 
irresponsible and a dismissal of those consumer complaints.
    Prior to that April hearing in Texas, we contacted around 
100 of the consumers who had filed formal complaints. Of those 
I talked to personally, none said their complaints had been 
addressed. A few said they had been contacted by mail from the 
Texas Board of Optometry just days prior to the hearing with a 
letter asking for more information.
    These consumers are frustrated. Some are angry. And they 
felt they had nowhere to turn for help. Of those that had 
received a letter from the TBO, there were three that I talked 
to. They said they felt the TBO was placing yet another hurdle 
in front of them, rather than providing them with answers and 
relief.
    Now, it's not my objective to impugn the optometrists, 
their association, or the board. However, there exists a 
practice of failing to verify the prescription, and consumers 
have no recourse. The lack of competition appears to reveal a 
potential conflict of interest on the part of the prescribing 
eye care professional.
    It is our objective to find a remedy that allows consumers 
access to their prescriptions and promotes consumer choice. 
H.R. 2221 addresses that concern by requiring the eye care 
professional to provide, to physically turn over to the, 
patient a copy of their prescription. This addresses one 
problem. But when the consumer decides to purchase online or 
over the phone, then the eye care professional must be asked to 
verify that prescription. And passive verification seems to be 
the only way to address this problem.
    In summary, H.R. 2221 would provide relief to consumers and 
clarify the role of the optometrist as health care provider 
while making their role as potential retailer distinct and 
separate and subject to competition. They must be taken out of 
the position of being able to deny consumers a choice when 
purchasing contact lenses.
    Medical doctors don't fill their own prescriptions. When I 
take or call my prescription to my pharmacy or an online 
retailer, my doctor responds within hours if there are 
questions about that prescription. This legislation opens the 
door to providing consumers that kind of relief.
    And I thank you for the opportunity to appear here today 
and share with you our experience in Texas.
    [The prepared statement of Peggy Venable follows:]
  Prepared Statement of Peggy Venable, Director, Texas Citizens for a 
                             Sound Economy
    Mr. Chairman, Members of the Committee, Ladies and Gentlemen. I am 
Peggy Venable, state director of Texas Citizens for a Sound Economy and 
represent the 25,000 members of Texas CSE. We are the state affiliate 
of the national organization, which has a membership of over 270,000 
citizens. Citizens for a Sound Economy's mission is to educate citizens 
on, and to promote the adoption of, free-market policies, which we 
believe benefits consumers and citizens generally.
    We applaud H.R. 2221, the ``Fairness to Contact Lens Consumers 
Act,'' and its sponsors for introducing real competition and consumer 
choice into the contact lens market and working to eliminate the 
hurdles currently impeding the consumer's ability to realize the 
benefit of an open market in the purchase of their contact lenses.
    This is an important issue to consumers. I have worked with our 
members and other Texas consumers and am familiar with the regulatory 
hurdles which, though originally well intentioned, currently limit 
consumer choices in Texas. Consumers care about this issue, and though 
some may not choose to purchase their contacts elsewhere, they want and 
deserve the opportunity to do so. Some will continue to purchase from 
their eye care professional, others will opt to shop for their 
contacts. The consumers I've spoken with cite either price or 
convenience, or both, as considerations in their purchasing decision.
    However, currently the contact lens consumer is often either 
unaware that they have the opportunity to shop for contact lenses or 
they are hampered in doing so due to the verification process 
requirements. Of those who do know they can take their prescriptions to 
a retailer, many are frustrated by barriers inherent in the positive 
verification process which is used in Texas.
    Before a consumer can purchase contact lenses in Texas, the 
positive verification system requires the prescribing eye care 
professional to respond to a retailer's request to verify that a 
prescription is valid and current. Unfortunately, delays and failure to 
respond to the verification process thwart the ability of many to 
purchase contact lenses from competitive providers.
    We would like to pass legislation in Texas to replace positive 
verification with passive verification similar to California's, which 
would provide the relief consumers need and deserve. That is what I 
would like to address today--the challenges positive verification 
places on the consumer's ability to shop.
    During the last regular legislative session in Texas, which ended 
late May, CSE supported legislation which would have established a 
passive verification process. The proposal--similar to California 
laws--allowed a reasonable amount of time for a prescriber to respond, 
and if they did not respond after that period of time, the retailer 
would be able to assume the prescription was accurate (since it was not 
challenged by the prescriber) and fill the prescription. That 
legislation did not pass and was ardently opposed by optometrists. 
Texas consumers seeking to shop for contact lenses are left with the 
positive verification process, which was limiting customer choice.
    The current Texas process is not serving the consumer well. The 
Texas Board of Optometry (TBO) acknowledged 2,500 complaints from 
consumers who were unable to get positive verification for their 
prescriptions. Earlier this year, I personally talked to some of those 
consumers who had filed formal complaints and was told that they were 
either still wearing their old contacts--which I understand is 
potentially harmful to ocular health and an unfortunate consequence of 
the current law's limitation on consumer choice--or had gone to another 
optometrist, or had returned to their prescribing optometrist and had 
their prescription filled there.
    I should note that of the over 2,500 complaints acknowledged by the 
TBO (though there are some indications that they had received thousands 
more complaints), surprisingly, their representative earlier this year 
said that they had found only two of them to be valid. We found this to 
be an outrageous and irresponsible dismissal of the complaints of 
consumers who could not gain access to their contact lens 
prescriptions. Many of those consumers I contacted were further 
outraged that the Board had not addressed their concerns.
    Of the almost 100 consumers we personally contacted who were denied 
access to their prescriptions and had filed formal complaints, most 
told me that their complaints had either not been addressed; a few said 
they had been contacted by the TBO just days prior to the hearing 
saying more information was needed. This was frustrating for consumers 
and they felt the TBO was placing yet another hurdle in front of them, 
rather than providing them with answers and relief.
    It is not my objective to impugn the optometrists of Texas, their 
association, or the Texas Board of Optometry. However, there exists a 
widespread practice of failing to verify the prescription, making 
competition moot. The lack of competition is harmful to the consumer 
and appears to reveal a potential conflict of interest on the part of 
the prescribing eye care professional.
     It is our objective to find a remedy that allows consumers access 
to their prescriptions and lets them exercise their rights to purchase 
from the retailer of their choice. H.R. 2221 addresses that concern by 
requiring the eye care professional to provide patients with a copy of 
their prescription. But when the consumer decides to purchase online or 
over the phone, then the eye care professional must be asked to verify 
the prescription.
    Consumers are best served when the prescriber has a set period of 
time in which they are required to respond to the retailer. Failure to 
do so harms consumers financially and may be harmful to their ocular 
health.
    We have also gone on record recommending a two-year prescription 
rather than the one-year expiration period currently mandated in Texas 
law. That alone would save each Texas contact lens consumer around $110 
a year, the cost of an annual exam.
    In summary, H.R. 2221 would provide relief to consumers and clarify 
the role of the optometrist as healthcare provider while making their 
role as potential retailer distinct and subject to competition. In a 
market with potential barriers to competition, they must be taken out 
of the position of being able to deny consumers a choice when 
purchasing contact lenses.
    With an ineffective verification process, only eye care 
professionals have the opportunity to fill the prescription which they 
write. Medical doctors do not fill their own prescriptions. When I 
take--or call--my prescription into a pharmacy or an online retailer, 
my doctor responds within a few hours if there are questions.
    There are inherent problems with the prescriber also being the 
retailer in a market that contains effective barriers to competition. 
Unfortunately, those problems have not been addressed in Texas by the 
professional board's self-policing practices. The legislation 
introduced by Rep. Burr would begin to address not only potential 
conflicts of interest, but also the larger question of competition and 
customer choice.
    We support a passive verification process in which the optometrist 
has the opportunity and responsibility to review the prescription prior 
to it being filled by the retailer of the consumer's choice. If the 
optometrist or ophthalmologist fails to respond within a reasonable 
period of time, then the retailer should be able to assume the 
prescription is valid and fill the consumer's order.
    This legislation opens the door to providing consumers that relief.
    Thank you for the opportunity to appear before you today and share 
with you our experience in Texas.

    Mr. Stearns. I thank you.
    I will start with the first set of questions. Let me just 
ask Dr. Cummings just as an opening statement, when I decided 
that I want to get a book, I can go through Amazon.com or 
Barnesandnoble.com and buy it or I could go to the store 
itself, some of the stores, Books-A-Million.
    Likewise, a lot of senior citizens in my congressional 
district buy drugs from Canada. And they go to their doctor. 
The doctor gives a prescription. The prescription is sent up 
there to Canada, either to a doctor or to a service, and they 
get the drugs.
    So it seems to me that there is a universal application 
here that if a person wants to get their contact lens through 
the Internet, they should be able to. Do you agree with that?
    Mr. Cummings. Yes.
    Mr. Stearns. Okay. So, then, if you're the doctor, you're 
my optometrist, I come to you and ask for the prescription so I 
can have it on my own, you have no objection?
    Mr. Cummings. No.
    Mr. Stearns. Okay. So then I take this and give it to the 
1-800, and we have completed that. Now it turns out that the 1-
800 needs the prescription and they want to call you for it. 
What is your objection specifically from just giving it to them 
if I give you the okay? If I say to you as a patient, ``It's 
okay to give it to the 1-800,'' why wouldn't you want to give 
it?
    Mr. Cummings. I have no objection to verifying the 
prescription with 1-800.
    Mr. Stearns. So I say to you, ``I want to have this 1-800 
call you. Please verify it''?
    Mr. Cummings. Yes.
    Mr. Stearns. So right now based upon what I just told you, 
it seems like you would support the bill.
    Mr. Cummings. If there were certain safeguards put in place 
around the verification process.
    Mr. Stearns. So we're at this point where what I hear from 
you--I've heard both sides in the opening statements--what I 
hear from you--and you're the main person here who would be the 
person objecting to the bill--is that you support the bill with 
reservations. Is that an accurate statement?
    Mr. Cummings. That's accurate.
    Mr. Stearns. Okay. And the reservations are you just want 
to ensure safety for the patient; and, two, you want to ensure 
that there is no culpability on the optometrists' part because 
the 1-800 fusses up the prescription?
    Mr. Cummings. Correct.
    Mr. Stearns. So those are the two reservations?
    Mr. Cummings. Yes.
    Mr. Stearns. And if we put in place in this bill and 
convince you that we have that, then you would support the 
bill?
    Mr. Cummings. If the safeguards are put in place totally so 
a person cannot get contact lenses without a valid 
prescription, then we would----
    Mr. Stearns. Okay. So you said you would support the bill 
with the two reservations. Now it's just a question of whether 
the author of the bill and the people on the subcommittee 
believe that those reservations are already taken care of.
    Now, it appears two-thirds of the States in the union 
support this idea and have already passed a bill something like 
this. Isn't that true?
    Mr. Cummings. Two-thirds have passed a legislation that 
mandates that a contact lens prescription has been released----
    Mr. Stearns. Prescription release.
    Mr. Cummings. Prescription release. Now----
    Mr. Stearns. Yes. And you support that idea?
    Mr. Cummings. Yes. Now, States have----
    Mr. Stearns. You have no objection to any of these two-
thirds State laws that were passed by State legislators----
    Mr. Cummings. Some of them we do, not on the prescription 
release piece of it.
    Mr. Stearns. Okay.
    Mr. Cummings. But on the verification piece of it, we feel 
that some States have better verification than other States.
    Mr. Stearns. Okay. Ms. Martinez, is there any kind of 
public education campaign in Texas to inform consumers of their 
rights relative to contact lens prescription release that you 
know of?
    Ms. Martinez. I have never seen any campaign.
    Mr. Stearns. Ms. Venable, are you or----
    Ms. Venable. I'm unaware of no public education regarding 
that.
    Mr. Stearns. Mr. Beales, what was the impact of the FTC's 
eyeglass rule after it was implemented? Do you expect the same 
results from this legislation for the contact lens market?
    Mr. Beales. Well, when the Commission's Eyeglasses Rule was 
originally implemented, the state of competition in the market 
was very different. There were very few third party providers. 
There were very few commercial providers. There was much less 
competition at that point than there is today. And it's clear 
that since the rule, there has been a great deal more 
competition, much lower prices for eyeglasses. It has 
undoubtedly facilitated that.
    In the contact lens market, there is a lot more competition 
already. And, as we said, it's not clear that consumers who 
really want their prescriptions and want to buy elsewhere have 
a systematically difficult time getting them. Undoubtedly, some 
consumers don't. Some consumers do. So it's not clear we would 
have the same kind of effect. I think, clearly, it would be 
more competitive, but it probably wouldn't be as significant 
because the market is more competitive to begin with.
    Mr. Stearns. You mentioned that you endorse a specific 
verification system. Do you have a preference on active or 
passive verification?
    Mr. Beales. We don't have a point of view. We're not very 
well-placed to balance----
    Mr. Stearns. So you can't tell us this morning which of 
those two you support?
    Mr. Beales. No. We would urge that you choose one.
    Mr. Stearns. You won't give us any guidance?
    Mr. Beales. We don't have an opinion about which one would 
be the best way to go.
    Mr. Stearns. Why don't you have an opinion? It doesn't seem 
that complicated.
    Mr. Beales. Well, there is a clear advantage to the passive 
verification system in that more consumers will be able to buy 
through third party providers. There is a disadvantage or an 
advantage to the active verification system, if you will, that 
it avoids the risk of contact lenses being provided based on 
expired or out-of-date prescriptions. And we don't have either 
the knowledge or the expertise to balance those risks. But that 
we think is the issue.
    Mr. Stearns. So I guess you couldn't comment, then, on the 
health concerns relative to active verification, what health 
concerns? Are there any health concerns with active 
verification or passive, either one? Any health concerns at 
this hearing we should be concerned about?
    Mr. Beales. Well, there are health concerns that have been 
raised about passive verification. We do not know of any 
systematic evidence about the extent of those problems or of 
the actual existence of problems. The possibility of problems 
numerous people have pointed to. We think those possibilities 
are real. We don't have any evidence about the extent to which 
those problems are actually there.
    Mr. Stearns. It's hard to pin you down here. If I come back 
in 3 months, will you have an answer to these questions?
    Mr. Beales. Well, the difficulty that the Commission has in 
this area is we really don't have the expertise. And it's why 
we have reservations about the study. We really don't have the 
expertise to evaluate the medical set of issues. There is a 
medical set of issues here, where we are not the best people to 
offer advice or to reach conclusions.
    Mr. Stearns. I will just conclude. I think in the bill, we 
allow you to work with the FDA. And so that should be helpful 
to you in coming up with solutions to these problems.
    Mr. Beales. It certainly would be helpful, and that is 
certainly what we would do if we needed to do that because we 
would need to tap that expertise.
    Mr. Stearns. I welcome the ranking member, Ms. Schakowsky, 
for questions.
    Ms. Schakowsky. Mr. Chairman, if I could briefly give parts 
of my opening statement, I would appreciate the opportunity.
    Mr. Stearns. I'm going to give you 5 minutes. Then we'll go 
back to a second round. So you are welcome to do what you want.
    Ms. Schakowsky. I want to thank you, Mr. Chairman, and all 
the witnesses that have been here today. I am really pleased 
that you have been focusing on H.R. 2221. Thirty-six million 
Americans use contact lenses. And these are really serious 
issues.
    I know that many of my colleagues on the committee have 
spent a great deal of time studying the subject, including Mr. 
Burr and Mr. Dingell and Mr. Waxman. At this point, I would 
like unanimous consent that the testimony of Congressman Pete 
Stark, who has been working on this issue on behalf of contact 
lens consumers for over a decade, be submitted for the record.
    Mr. Terry. Without objection.
    [The prepared statement of Hon. Pete Stark follows:]
  Prepared Statement of Hon. Pete Stark, a Representative in Congress 
                      from the State of California
    First I'd like to commend Chairman Stearns and Ranking Democrat 
Schakowsky for holding this hearing. This might not be a high profile 
issue, but it is important to the 35 million of contact lens wearers 
around the country. Eyeglass wearers have enjoyed unobstructed access 
to their eyeglass prescriptions since the Federal Trade Commission 
issued regulations in 1978 requiring their automatic release. Yet, 
twenty-five years later, similar action has yet to be taken for contact 
lens wearers.
    I got involved in this issue more than a decade ago when my wife 
asked her eye care provider in D.C. for her contact lens prescription 
so she would have it if she needed it while we were in California. To 
her--and my--astonishment, the provider refused to give her the 
prescription saying that the law did not require him to do so. We 
checked it out and he was correct. I've been working to fix this 
problem ever since.
    The simple fact is that contact lenses are fast replacing 
eyeglasses as the corrective instrument of choice for consumers. 
Despite this trend, many states allow prescribing eye care 
professionals to refuse to release contact lens prescriptions to their 
patients. Eye doctors cite health concerns, but the fact is that they 
have a strong financial incentive to restrict consumer access to the 
contact lens market. Without their contact lens prescription in hand, 
consumers are forced to purchase their lenses from their prescribing 
eye doctor--who obviously profits from each and every sale.
    Over the years I've introduced several bills to require the release 
of contact lens prescriptions. In the last Congress, I introduced HR 
2663, the Contact Lens Prescription Release Act. This bill, which was 
cosponsored by Rep. Burr, included mandatory release of patients' 
contact lens prescriptions to patients directly or to the agent of 
their choice. It also required that upon request eye care providers 
promptly verify the accuracy of a patient's prescription.
    Toward the end of the 107th Congress, Rep. Burr took the lead to 
introduce a revised version of the bill which many of us on both sides 
of the aisle signed onto in hope that it could be quickly enacted. 
Unfortunately, the session ended without resolution of this issue.
    This year, Rep. Burr has introduced a new version of that 
legislation, HR 2221, the Fairness to Contact Lens Consumers Act. I am 
not a cosponsor of this bill because I'm concerned that it lacks any 
enforcement mechanism or any mechanism to provide for presumed 
verification. Without at least one of these components, passage of the 
introduced bill would not fix consumers' widespread inability to 
purchase contact lenses from someone other than their eye care 
provider.
    I look forward to continuing to work with Reps. Burr, Tauzin, 
Dingell, Schakowsky, Waxman and others to complete years of effort in 
this endeavor. We should update the law to enable consumers to be able 
to obtain their contact lens prescriptions and be freed to safely 
purchase contact lenses from the provider of their choice.
    Again, thank you for holding this hearing.

    Ms. Schakowsky. I believe that we all agree that current 
law must be changed so that consumers are explicitly entitled 
to a copy of their contact lens prescription from their doctor. 
There have been reports of their eye care providers 
unnecessarily preventing or delaying consumer access to their 
own prescription.
    I wasn't here, Ms. Martinez, for your testimony. That's the 
only one I missed. I'm sorry. But I appreciate the testimony of 
a consumer like yourself.
    While consumers clearly have a right to shop for the best 
deal when purchasing contact lenses, the challenge to us today 
is, as many of you have discussed, balancing patient safety 
with the interest of getting the best price for contact lenses.
    One of the issues I wanted to raise with you was the issue 
that was brought to me by Dr. Robert Panton, an ophthalmologist 
in Elmwood Park, Illinois from the State I am from. Mr. Panton 
has provided me with a vendor verification request that gives 
him 8 business hours to respond.
    I will want to ask whether or not any of you have 
concerns--I know some have been raised--about whether 8 hours 
is a reasonable time to respond. He raises the question, how 
does this relate to solo practices, where a practitioner may be 
out for the day because of illness or to attend a medical 
conference? Is it a sufficient safeguard to make sure that the 
FDA valid prescription requirement is met?
    Particularly because we are imposing enforcement penalties 
on physicians who fail to comply with specific requirements, I 
am concerned that leaving the verification process solely in 
the hands of vendors may be unfair. And I want to make sure 
that we carefully study the balance here as we move forward on 
this legislation.
    I realize that H.R. 2221 requires a study of these issues. 
But since the FTC has already been studying these issues and 
believes that more specificity is needed in the verification 
process, I hope that we will explore the possibility of setting 
clear verification requirements in the bill, whether passive or 
active, in defining reasonable time lines.
    And if our top priority is, in fact, protecting consumers, 
then we have to consider whether there are appropriate 
penalties for vendors and doctors that violate the terms of the 
legislation or if we should include stronger enforcement 
action. And I want to join Mr. Stark in raising concerns that 
this bill max any enforcement mechanisms for individuals' 
private rights of action or State attorneys general or any 
mechanism to provide for presumed verification.
    Finally, I want to ask the witnesses why this process 
shouldn't be set up just like the process works for other 
physician-prescribed medical products. If I want to get a 
prescription delivered to the Capitol from Grubbs, my doctor 
calls the pharmacy and confirms the prescription for me. This 
process protects me as the patient, the pharmacies, and 
doctors. And I am not sure why we should treat contact lenses 
any differently.
    So I look forward to working with the committee, with all 
of the experts in this. And certainly I am pleased that 
Consumers Union is here to present the consumer point of view 
as well and look forward to being able to draft after a long 
time of considering this legislation a bill that will protect 
consumers in every way.
    Thank you, Mr. Chairman. Do I have a minute? Yes, I have 30 
seconds.
    Mr. Stearns. If any of the committee would like to respond 
to any of your inquiries, the witnesses?
    Ms. Schakowsky. Yes, Mr. Coon?
    Mr. Coon. Yes, ma'am. Clearly an ideal system is exactly 
what you have described, a medical doctor-pharmacy system. We 
are entirely supportive of that system, as we were in 
California and in every other forum. And if the AOA is 
supportive of that system in which a medical doctor does not 
sow what they prescribe and the parameters for response are 
completely undefined, we totally support a system like that.
    Mr. Stearns. All right. Did you want to say something, Dr. 
Cummings?
    Mr. Cummings. Yes.
    Mr. Stearns. Sure.
    Mr. Cummings. I think you pointed out very well some of the 
problems we see with the passive verification system. With the 
medical model system, it is cut and dry. And there is a paper 
trail that the prescription was truly verified.
    If you impose penalties on the provider for not providing 
the prescription or providing verification, then that is the 
reason why a passive verification system kind of came up, the 
fear that the provider would not comply with the law. But if 
you put enough penalties on the provider to comply with the 
law, then I believe a positive verification system will work.
    Mr. Stearns. The gentlelady's time has expired. Mr. Shimkus 
is recognized for questions.
    Mr. Shimkus. Thank you, Mr. Chairman.
    Mr. Coon, there have been some questions about the 
techniques companies like yours use to verify orders for 
contact lens prescriptions and problems such as automated cause 
and continuous faxes inhibiting optometrists from verifying 
prescriptions. Could you just go through your procedures for 
me?
    Mr. Coon. Sure. I would be happy to. There has been a lot 
of confusion about what our systems are. There are a lot of 
other companies that do either no verification at all, as Dr. 
Cummings described. There are other companies that have 
different systems.
    Frankly, there is really only one system that is at work. 
It's the law in California. In fact, one brief quote from the 
California Optometric Association, they said that this law was 
``an example of numerous parties collaborating to provide 
patients with the best possible health care.'' We were able to 
work with ophthalmologists and optometrists in California to 
come up with this solution.
    To walk through our process, what happens is somebody calls 
us and they're either on the Web half the time or they're 
calling us on the phone. Seventy percent of our customers are 
female. So I tend to say ``she.'' She'll usually read us the 
parameters off the box. Again, there's just a size and a power. 
So she is going to read those to us. But over the Internet, 
there really isn't a way to convey a piece of paper over the 
phone either.
    So we'll require a doctor's name and telephone number that 
is valid. We contact that doctor's office. The system that 
works, the system in California, the system that we do with our 
Johnson and Johnson orders Nationwide, is that we're faxing. 
And the best part about a fax is that there is a handshake that 
takes place between the two fax machines and a confirmation 
that you know your fax went through and it was received by the 
other party.
    Now, we don't start the clock that was described earlier, 
the 8 business hours, until after a successful fax has been 
sent. No successful fax will wait indefinitely.
    So in an example where, say, the doctor is not there, 
they're out of town, they could tell us that the doctor is not 
in, although usually when the doctor is out, the store is open 
and there is usually a staffer there who could respond. But 
even if there isn't, they could tell us or they could unplug 
the fax machine.
    But we're going to send that fax through, and then in 
writing, the doctor has a confirmation request that ``Sally 
Jones is ordering Acuvue lenses in this size and in this power. 
And you have this amount of time to respond. And if we don't 
hear back from your office that there are any corrections or 
problems with this prescription, then we're going to assume 
it's correct and ship that order.''
    That's the law in California. And it's a compromise. It's a 
compromise that addresses the fact that eye doctors sow what 
they prescribe.
    The only way to have a physician-pharmacy system is when 
physicians don't own their own pharmacy because otherwise they 
might be inclined not to respond to competing pharmacies.
    So short of that, which, again, we accept as the ideal and 
the best solution, short of that, this system was a compromise 
that would allow eye doctors to continue to sow what they 
prescribe.
    Mr. Shimkus. Thank you. My colleague Ms. Schakowsky is from 
Illinois, probably has more knowledge in Illinois than I do, 
but it's my understanding that in Illinois, we actually have to 
submit a written request to our optometrist if we want that 
prescription to be used elsewhere. And so that would be even a 
more difficult hurdle to overcome in this whole process, would 
it not?
    Mr. Coon. It absolutely would. In fact, what some eye 
doctors do in some States is, again, they own their own store. 
They will actually not only require a release form, but they 
will demand that the customer come into their store, where they 
happen to sell contact lenses, and sign it in person.
    Mr. Shimkus. Yes. I am a contact wearer. So I know all of 
this. My optometrist is a friend from the church in the 
community. And I do fear asking him to give me that to go 
elsewhere because we are close friends and associates. So I 
think I am going to stay with him.
    But I do understand how someone who would want to--or, in 
fact, we travel a lot. And I'm not in Collinsville. I'm here a 
lot of times. And if, for some reason, my supply runs low, then 
I could go to a 1-800 mail order and get it shipped here, which 
would be helpful, although I know now that my optometrist says, 
``We can get it mailed to you from our location.''
    So there is competition. This is an interesting hearing. 
And I'm going to keep my contacts for a while, and I'll yield 
back my time.
    Mr. Stearns. Thank the gentleman.
    Mr. Terry?
    Mr. Terry. Thank you, Mr. Chairman. I was just thinking 
that, John, perhaps you can ask Mr. Coon what the price of your 
prescriptions would be for your contacts. And then you could 
have your friend and fellow church member match that price.
    I don't wear contacts. And, frankly----
    Mr. Shimkus. You don't?
    Mr. Terry. Yes. I know that surprises you, John. I've got 
to admit that this was not an issue I had spent a great deal of 
time on until an optometrist came to my office about 2 weeks 
ago and even told me this bill existed.
    So I want you, Mr. Coon, Dr. Cummings, to help me work 
through the two differences between the passive, Mr. Coon, that 
you feel would be the best option. And then I want you to 
compare that to the methodology of verification expressed by 
Dr. Cummings on behalf of the American Optometric Association. 
So, Mr. Coon, will you go first?
    And you can give me kind of some of the stories that there 
are; some accusations perhaps that some eye physicians kind of 
game the system in order to keep their patients from going to 
you.
    Mr. Coon. I think what you point out is an important point, 
that the reason they sort of game the system is that there is 
an economic motivation to do so. It is kind of foreign to 
people who haven't experienced it as well because it doesn't 
make sense that a medical doctor wouldn't respond to somebody 
acting in the role of a pharmacy.
    But the two key differences, I think one important point to 
make before going into those is that our customer on average 
has been wearing contacts for 5 or 6 years. They're already 
wearing contact lenses when they contact us.
    So we're not comparing somebody wearing contacts to not 
wearing contacts. What happens with our customers if we use 
Texas, which is positive verification, what happens with our 
customer is that over half of the time in that system, since 
the customer has to wait indefinitely until the doctor 
responds, more than half our orders are canceled for no reason 
other than the fact that the eye doctor doesn't respond because 
they don't want to.
    Responding is giving a competitor permission to make a sale 
to their customer. And they don't want to. As they wait, 
customers cancel their orders. And many give up and go back and 
say, ``Forget it. I'll just buy from my eye doctor.'' What 
happens with many others, though--and these are the risks 
associated with positive verification--is what is also very 
common is people just keep wearing the lenses they have.
    So a box like this has six lenses in it. This could be a 3-
month supply if I throw them away every week. It could be a 6-
month supply if I throw them away every 2 weeks. It could be a 
1-year supply. It could be a 3-year supply if I throw them away 
every 3 months.
    Now, the risks of wearing them longer are that they buildup 
deposits, people get infections. Sometimes you'll somebody with 
red eyes who wears contacts. And they'll say, ``I've got to 
throw these away. I just don't have time to deal with it'' 
because it's a hassle to replace them. And so the more it is a 
hassle to replace contact lens, the less frequently people are 
going to throw them away.
    And this was one of the arguments that maybe Mr. Hubbard 
could speak to because the attorneys general made it in their 
lawsuit against the American Optometric Association and others 
that these sorts of systems restrict consumer access to the 
very replacements that would reduce their risk because they 
would be clean, new lenses.
    So, on the one hand, you have people forced to get an 
affirmative response from the doctor's office every single 
time. And, as a result, doctors can veto their choice to buy by 
doing nothing, by just not responding.
    Under a presumed verification system, the doctor has a 
motivation to tell us we can't sell, right? So they tell us if 
there is any problem with the prescription, if it's expired, if 
it's invalid, whatever the problem is with the prescription. If 
they can tell us, you can believe they tell us absolutely every 
time.
    In California, for instance, 25 percent of the time, we are 
not able to fill the order because we are told by 2 p.m. the 
following day, which is California law, that there is a problem 
with the prescription and we don't----
    Mr. Terry. I want to get Dr. Cummings to have a response to 
your presumed verification. That sounds like a reasonable 
middle ground here.
    Mr. Cummings. Well, there's a challenge with presumed 
verification. I could give you an Internet address, and you 
could take the numbers off of a box like this, maybe a spouse 
or a son or a daughter or a friend, and call them up and get 
contact lenses dispensed to you. And the problem with passive 
verification is that people will get contact lenses without a 
prescription.
    Now, the number may be less, but people will be able to get 
contact lenses, either over the Internet or from other 
suppliers, without having a valid contact lens prescription. 
That's the down side, too.
    Mr. Terry. How about the California version, where there is 
period of time in which to verify and then they can presume 
verification if there is no reply. So you can't game the 
system, like some of the eye physicians in Texas do.
    Mr. Cummings. Sure. One of the problems I see with the 
California--I think the California is good in many respects 
because it addresses many of the issues around the release of 
the contact lens prescription and that type of thing, which we 
feel is good.
    The problem is I still think you can game the system with 
the passive system in California. And I think that some of the 
suppliers of the lenses will be able to continue to provide 
lenses to people who either have expired or don't even have 
contact lens prescriptions or as in the case that I mentioned 
in my testimony, that they substitute a lens that was 
inappropriate for them.
    So the potential exists in a passive verification system to 
still have that happen.
    Mr. Terry. I know my time is up, but let me just conclude 
with this last question. So it would be the position of the 
American Optometric Association that you don't want any form of 
presumptive with the time, but you are willing to go with some 
sort of heavy penalties perhaps to the eye physician if they 
don't verify within a time period?
    Mr. Cummings. Yes.
    Mr. Hubbard. If I might add, Mr. Coon mentioned that we 
were engaged in enforcement proceedings. There was a lot of 
stuff that went on in the disposable contact lens litigation, 
including arguments that the practices of companies like 1-800 
were illegal.
    There have been many complaints to State boards throughout 
the country that it is illegal. No board that I am aware of has 
ever proceeded against that system for I think very valid 
reasons, which is they don't show consumer harm from it or 
anything else.
    The point is that consumers should not be stuck in the 
middle of this. The consumer should not be burdened by a non-
responsive ECP. If it's the ECP's problem, they are notified of 
that. They have an opportunity to correct errors. An ECP 
shouldn't be allowed to with silence veto a sale by a 
competitor just because it's anti-competitive or they're 
inefficient or they're non-responsive.
    If there's a problem with 1-800 not doing the verification 
that they say is required, there is a way to deal with that. 
The problem is that in the positive verification format, it is 
the consumer and the consumer primarily who suffers.
    Mr. Terry. Thank you.
    Mr. Stearns. We're going to do a second round. Mr. Burr? We 
will let Mr. Burr, who was the author of the bill, go ahead.
    Mr. Burr. Mr. Chairman, thank you. I appreciate the 
indulgence of my colleagues since I am not a member of this 
subcommittee.
    Mr. Hubbard, let me ask you just one question. Why is this 
so confusing to get to an end on a legislative remedy?
    Mr. Hubbard. I don't know. Maybe it's my articulateness is 
not as good as it should be. It is different I think than a 
whole lot of industries. It is correct that very few doctors 
sell what they prescribe. It creates a whole different series 
of incentives.
    There are many ways that you can make it hard for consumers 
to get their prescription. One of the parts of the litigation 
was they would train one another about how you wouldn't let the 
prescription walk out the door.
    There are a lot of subtleties that arise because of this 
incentive and that a large proportion, a significant 
proportion, of an ECP's revenue comes from the sale of these 
contact lenses. And that's what creates the significant 
problem, I think.
    Mr. Burr. So what you're telling me is it's financial?
    Mr. Hubbard. Yes. It's undeniable that the business 
strength of some ECPs depends in large measure on the number of 
contact lenses that they sell.
    Mr. Burr. Certainly optometrists suggest that this is about 
patient care, that it's all about patient care. In essence, to 
listen to them, you can't rely on a prescription that they 
write to either be filled in the right way or for a patient to 
handle that prescription with a correct vendor.
    Mr. Hubbard. Well, I think that consumers are able to do 
that. I think that a prescription needs only a few parameters 
in order to specify what lens should be sold.
    Certainly the ocular health of consumers is something that 
interests the attorney generals. And we certainly were asked by 
our bosses to make sure that the position that we were taking 
in the litigation was not risking the ocular health of 
consumers. And we took those concerns very seriously.
    We always when we had an optometrist under oath said, 
``What evidence of ocular health risks are there? Can you 
document that?'' That was always what we asked. And we never 
got documentation of those risks.
    We take ocular health concerns very seriously. And we 
looked at those in a lot of depth. We don't profess to be 
medical doctors. But we think that the passive verification 
fulfills the purposes that consumers are entitled to.
    Mr. Burr. You certainly are the only one at the table, I 
believe, that has litigated something relative to this. Let me 
ask you, the results of that litigation basically required what 
to take place?
    Mr. Hubbard. Well, there was a whole series of we allege 
that there were damages, there were benefits packages, other 
things. I think your question mostly focuses on the kind of 
injunctive relief that we had.
    With the manufacturers, we required reasonable and 
nondiscriminatory sales to mail order and pharmacies along with 
everybody else. So that was J&J, B&L, Ciba.
    As to the AOA, we had various claims. there is a provision 
that they shall not oppose prescription release. There is a 
provision that they shall not make health care claims unless 
it's supported by valid statistical data. Those were the kinds 
of provisions that we put in the settlement were the results of 
that litigation.
    Those settlements are publicly available. I would be more 
than happy to give you----
    Mr. Burr. Is it your belief that we need to pass this 
legislation to assure that patients across this country have an 
option other than their ECP for their contact lenses?
    Mr. Hubbard. This would be a significant step forward, yes.
    Mr. Burr. Mr. Coon, how does 1-800 currently request doctor 
verification?
    Mr. Coon. Well, the best system that we have found works 
the best, which we do in a majority of our orders--and there 
has been criticism of phone automated systems and other things. 
The system that works the best is in writing by fax. We know 
that there is a confirmation that it was received. And that's 
the system that we would recommend.
    Mr. Burr. And if, for some reason, there was not a 
response, which clearly is a problem today, can you give us an 
idea from 1-800's perspective? How much of the time does that 
happen?
    Mr. Coon. Well, it depends on what the law is in the 
different States, like in Texas, over half the time, we cancel 
the order. It's a fax, too, but it's a positive verification 
system. And so over half the time, the eye doctor doesn't 
respond.
    The data, the statistics aren't that much different in a 
presumed verification State like California. The difference is 
they tell us if there is a problem. They don't tell us if there 
is no problem. In fact, that is acceptable in California 
because by 2 p.m. the following afternoon, it's just one more 
thing the doctor doesn't have to do. If they pull the record 
up, the prescription is current and it's valid. They don't have 
to respond, you know, if there is not a problem.
    I would point out that in either system, again, the doctor 
has ample opportunity to tell us that we can't fill an order. 
If there's any problem at all with that prescription, we know 
that is a valid doctor's name and phone number, we know that is 
a valid fax, we know they have received the communication. And 
if they tell us that there is a problem with the prescription, 
we will not fill it.
    Mr. Burr. Mr. Chairman, I realize I have run out of time. 
And I think we are going to have----
    Mr. Stearns. We are going to have a second round, yes.
    Mr. Burr. Thank you. I yield back.
    Mr. Stearns. All right. I will do just a few questions, and 
then we will go around again. Mr. Hubbard, let's see if we can 
get to the point here. If you had to recommend a verification 
standard, would you today recommend an active or passive 
standard?
    Mr. Hubbard. Passive.
    Mr. Stearns. Active?
    Mr. Hubbard. I said passive.
    Mr. Stearns. Passive, passive.
    Mr. Hubbard. And, Your Honor, I note that the litigating 
States or 32 of us, we took that position in enforcement 
proceedings after the settlement. We took the position that the 
settlement wasn't being followed and that the primary dispute 
in that was whether positive verification was required or 
passive was enough. And we took the position as a group of 
States that passive verification was sufficient.
    Mr. Stearns. Would you support preemption of State law?
    Mr. Hubbard. Well, you know I represent a State. And 
preemption is an extremely hot issue, and it depends very much 
on the details. I would have to know what you are talking about 
and----
    Mr. Stearns. How about this bill, dealing with this bill?
    Mr. Hubbard. Well, in the current version of the bill, I 
don't see preemption of any State laws.
    Mr. Stearns. But if we did include it in the bill.
    Mr. Hubbard. What would be the nature of the preemption?
    Mr. Stearns. For the passive system which you are talking 
about.
    Mr. Hubbard. So that to the extent there was a positive 
system in a State, it would be overridden by the passive?
    Mr. Stearns. Yes. So you have in the bill the passive 
standard and it would preempt State laws.
    Mr. Hubbard. Well, I can with confidence say that that 
would be fine with the State of New York. I have not discussed 
that issue with other States.
    Mr. Stearns. With your boss.
    Mr. Hubbard. The position that we took in the litigation 
was that 1-800 system was appropriate under the law of all of 
the litigating States, that be Arkansas, that be a whole series 
of States. That's an acceptable procedure. So by definition, 
the passing of Federal law that permits passive verification 
does not preempt State law because State law currently permits 
passive verification.
    Mr. Stearns. Okay. Ms. Gadhia, according to your study, 
some eye doctors require a patient to sign up for a long-term 
contract of ongoing care. And if they are not available for 
that ongoing care, they cannot have their prescriptions. What 
is the medical rationale for this practice? And how prevalent 
is that practice today?
    Ms. Gadhia. As far as the packaging or requiring the 
extended follow-up visits?
    Mr. Stearns. Yes.
    Ms. Gadhia. Our 2000 survey showed that, as I mentioned, 57 
percent of doctors were requiring follow-up visits. If there is 
a medical necessity for the follow-up visit, that is, of 
course, up to the eye doctor. But what we are concerned about 
is when it is not medically necessary and it's considered just 
a way to sort of keep the prescription hostage.
    Mr. Stearns. Okay.
    Ms. Gadhia. I hope I have responded to your question.
    Mr. Stearns. Ms. Venable, you heard Mr. Hubbard. And he 
talked about what passive verification system he is supporting. 
You also indicated in your testimony that you are also 
interested in replacing the active verification with a passive 
verification system. Have you encountered much resistance to 
this idea?
    Ms. Venable. Absolutely. Yes, sir, we have. In Texas, the 
law that was introduced this last legislative session would 
have allowed for passive verification. And that law was 
strongly opposed by optometrists in the State.
    Mr. Stearns. So how is the campaign going, then? Has it 
reached a standstill or----
    Ms. Venable. Well, in Texas, we made only every other year 
for 5 months. So we have a period of time where we have no 
relief for the consumers who are unable to get their 
prescriptions filled other than them going back to their own 
optometrist or another optometrist to get a prescription that 
will be verified. I've talked to a number of people who have 
done just that.
    Mr. Stearns. So the optometrists have been effective in 
their lobby work in this case?
    Ms. Venable. Yes, sir, they have.
    Mr. Stearns. Dr. Cummings, anything you might want to add? 
Maybe your comment is that they have been effective because you 
have been right.
    Mr. Cummings. Well, I actually believe that the Texas law 
is actually a very good one. The safeguard that is built into 
that is that if a practitioner does not verify or provide the 
prescription to the patient, they can lose their license. I 
mean, it's in the law. They can actually lose their ability to 
practice and earn a livelihood if they violate the tenets of 
the Contact Lens Act.
    Mr. Stearns. Okay. Anyone else? Mr. Coon?
    Mr. Coon. Having attempted to fill 100,000 orders under 
that system in Texas, we have a little bit of experience with 
what actually results.
    Yes, that's true. Under Texas law, an optometrist could 
lose their license. As a practical matter, though, not only do 
they control more than 90 percent of the market. They also 
regulate themselves. They run the Optometry Board. It's made up 
of optometrists.
    This is just a sampling of the 4,000 handwritten complaints 
that consumers have filed, not our company. We filed 40,000 for 
no other reason than the doctor wouldn't respond. These are 
4,000 handwritten complaints from consumers.
    Mr. Stearns. Those are 4,000 right there, that----
    Mr. Coon. This isn't 4,000. This is just a sampling.
    Mr. Stearns. That would be impressive if it were.
    Mr. Coon. No. This is just a sample of them. I will just 
read the first one in the record. And I would be happy to 
submit these samples. And we have a CD that has all of them if 
somebody wants to go through them at random.
    Mr. Stearns. I don't think we need to submit them all, but 
you are welcome to put one in the record.
    Mr. Coon. Here is one example. Again, the Texas Optometry 
Board took no action against any optometrist that we're aware 
of. No one lost their license. No one got a letter from them 
that we're aware of.
    Here's a perfect example. This customer in her writing, her 
handwriting, says, ``In fact, I was told by one employee they 
just ignored all requests sent to them by 1-800-CONTACTS. She 
said it was their policy not to do business with 1-800-
CONTACTS, regardless of what patients wanted.''
    Now, that's a perfect example of where why did that 
optometrist not lose their license. I mean, obviously they 
don't want to do business with 1-800-CONTACTS because doing 
business with 1-800-CONTACTS means giving your patient 
permission to buy from a competing----
    Mr. Stearns. But just between you and me, I'm not sure you 
want to do business with every 1-800 either, would you?
    Mr. Coon. Well, it's hard to empathize with somebody who is 
in the position of selling what they prescribe. So I don't know 
what I would do if I were put in that position. It's not a 
position I would like to be in.
    Mr. Stearns. I think we have got an interest here. My time 
has expired.
    Would anyone else like to comment? Yes, Dr. Cummings?
    Mr. Cummings. I would like to comment on the text of the 
3,000-4,000 complaints because we have heard a lot of those 
over the years.
    There is a due process that has to take place when you sit 
on a State board. And when a State board receives a complaint 
like that, especially when it could result in fines or the loss 
of a license to practice a person's livelihood, you have to 
take each one of those and investigate them fully.
    And it's my understanding that the State board of optometry 
is no different than any other regulatory board in any of the 
States. They're made up of practitioners of that particular 
discipline. Be it optometry and medicine or nursing or 
whatever, they also have a public member on that board. And 
their counsel is the attorney general of the State.
    So the concept that somehow the State board is going to 
fool with these things I think is not accurate. I think that 
they have a duty to the citizens of their State who they serve 
as State board members to fully and accurately investigate 
every one of these 4,000 or however many they are. And that is 
going to take time. It is my opinion that they worked through 
many of them and that they have taken action against certain 
practitioners.
    And I think that you could ask the State board in Texas for 
a summary of their action on that and include it in your 
record.
    Mr. Stearns. My time has expired. The gentlelady?
    Ms. Schakowsky. I wanted to follow up more on this whole 
question of enforcement. Mr. Beales, my understanding is, 
particularly for those States that don't have any law--and 
then, of course, the question of preemption comes in, too--is 
it not true that if a consumer doesn't receive a prescription 
from her ECP, then what recourse does the consumer have other 
than to file a complaint with the Federal Trade Commission?
    Mr. Beales. Well, what recourse they would have would 
depend on State law. At this point, there's not any Federal 
recourse that I know of.
    Ms. Schakowsky. Well, then would you not be responsible for 
monitoring and enforcing the violations of this bill? Wouldn't 
the Federal----
    Mr. Beales. I'm sorry. Under the bill, under the act, yes. 
I thought you were asking about right now.
    Ms. Schakowsky. No, no. Under the bill. I'm sorry. So are 
you equipped to do that for lots of complaints that would come 
in?
    Mr. Beales. Well, it depends on the number of complaints. 
And what we do in any of the areas we regulate because we are a 
small agency is we pursue the largest and most appropriate 
targets. And we try to achieve general deterrence through those 
actions.
    But no, we would not be able to pursue each and every 
individual complaint. And that's what we do in any other area.
    Ms. Schakowsky. Well, that's my concern. Ms. Gadhia, H.R. 
2221 does not allow individual consumers to enforce the bill's 
protections in court. And it doesn't empower, as I understand 
it, State attorneys general to protect their citizens. So do 
you believe that the current enforcement mechanisms are 
sufficient?
    Ms. Gadhia. We support both FTC enforcement as well as 
protecting the right of consumers to turn to their State and 
local enforcement authorities, whether it's attorneys general 
or district or county attorneys, as well as a private right of 
action. So we think that that is an important recourse for the 
consumer.
    Ms. Schakowsky. So those provisions, however, are not in 
the current legislation. Is that right?
    Ms. Gadhia. My personal opinion would be that it's not 
clear. It's not explicitly in the legislation, certainly. The 
Texas law that we have experience with does allow for State and 
local enforcement. And it does allow for injunctive and 
administrative remedies. That's an important thing to preserve, 
we think.
    Ms. Schakowsky. Let me ask Mr. Hubbard what you think about 
that.
    Mr. Hubbard. Well, the dispute here between what is going 
on in Texas, you know, you're talking about a remedy about 
whether doctors should lose their license.
    I think that one of the important things is that the 
consumer should not get caught up in the middle. And a State 
attorney general, for example, tries to keep the interests of 
consumers in mind. And while there is a due process evaluation 
of whatever an optometrist did in Texas, we want a consumer to 
have her lenses.
    We think that in many contexts, enforcement authority by 
both Federal enforcers and State enforcers has worked very 
well. We have a longstanding relationship with the FTC where we 
cooperate, where there are certain things that we emphasize and 
certain things that they emphasize. We think that this is 
another area where such a concurrent jurisdiction would be a 
fruitful way to proceed.
    Ms. Schakowsky. Well, I look forward to working with Mr. 
Burr and all of the Republicans to try and improve the 
enforcement mechanisms so that we preserve the rights of 
consumers.
    Let me just say that my experience in the State legislature 
with the Department of Professional Regulation, which was 
designed to be the watchdog group,--I don't have any experience 
with optometrists--that there were precious few situations 
where any physician was penalized in any way, even after 
repeated violations.
    Mr. Hubbard. Well, that was a very large topic in the 
litigation. Yes, there are precious few of that. As Dr. 
Cummings mentioned, in many boards, the optometrists largely 
run the boards. I'm proud to say that that is not the case in 
New York.
    But in any case, yes, it's sometimes difficult to place the 
enforcement authority in that board that has membership by the 
members of the profession and less interest in the interest of 
the consumers.
    Ms. Schakowsky. Let me, finally, say for the record as a 
contact lens wearer, I am also, as Representative Shimkus is, 
very good friends with my optometrist, who has done a wonderful 
job. I wanted to have that on the record.
    Mr. Stearns. Thank the gentlelady.
    Mr. Terry?
    Mr. Terry. I'll have to get one of those sometime. I mean 
optometrists, not a friend. I just go to whoever is available. 
And maybe that is part of the issue with a lot of the consumers 
out there.
    Mr. Hubbard, I am just curious. You said there were 32 
States that joined with New York in the litigation. Was 
Nebraska one of those States? As I understand----
    Mr. Hubbard. No.
    Mr. Terry. That doesn't surprise me. The reason why that 
struck me is I reviewed the half a dozen e-mails or letters 
that I have received on this prior to coming here to this 
hearing. And I did receive an e-mail from a Jane Ellsworth, who 
said she has got two homes, Omaha, Nebraska and South Carolina, 
and she can't get her prescription filled by 1-800, by the way, 
in the e-mail, but she can in South Carolina. But then I 
understand that Nebraska is one of the States that has a 
mandatory release but no verification.
    So we scripted it into the law, inscribed in the law that 
doctors have no penalty for not releasing, which I think the 
argument here or the discussion here has really evolved passive 
versus active to really how do you enforce this, as Ms. 
Schakowsky had brought up.
    I am really curious about the Texas example here. Ms. 
Venable, we have had a discussion here about thousands of 
complaints. I think you in your statement said there have been 
zero eye physicians, optometrists that have been called on 
this. We're hearing from the testimony that may be because they 
are self-governing and self-policing.
    What is your view of the situation? You're the one on the 
front lines in Texas. Tell us who is right and wrong in this 
process.
    Ms. Venable. Well, thank you for the opportunity. I feel 
strongly that this--first let me say that the Texas Board of 
Optometry said that they do not have the manpower to deal with 
all of the complaints that they have received. And, yet, it 
seems that simply sending a letter to a consumer who has filed 
a complaint asking for more information is their assumed 
handling of that complaint. I have not spoken to a single 
consumer who feels like their complaint has been handled.
    Mr. Terry. Are you aware of any situations in Texas, like 
Dr. Cummings has suggested, where the State board did follow 
through?
    Ms. Venable. I am aware of no situation where not only a 
consumer got relief or any optometrist was sanctioned in any 
way by virtue of failing to verify a prescription. That's why I 
guess inherent in this whole problem is the fact that 
optometrists alone are the both eye care provider and retailer.
    One would say, ``Could there be relief in the optometrists 
serving only as the eye care provider and not being able to be 
the retailer?'' We wouldn't necessarily be supporting that 
because it would still limit that consumer's opportunity to 
purchase their contact lens from that optometrist. But at some 
point, that could be the only true remedy for consumers to have 
choice in Texas.
    Mr. Terry. All right. Dr. Cummings, on behalf of the AOA, 
let's talk about what we mean by enforcement. Now, you said you 
were open to penalties. Is it a paper tiger penalty that the 
AOA is in favor of or is there some what I would call real 
enforcement, maybe under the Illinois model, where you have a 
separate entity that looks after it, the State attorneys 
general? Would you agree to that, to allow the State attorneys 
general to investigate private right of remedy?
    Mr. Cummings. Of course. I think in this particular 
language that we have now in 2221, that it's a 10 or 11 
thousand-dollar penalty at this point for not releasing the 
contact lens prescription or verifying the contact lens 
prescription. To me, that seems like a lot of money.
    And I'm sure that that would get the attention of most 
providers out there. And I don't think it would take too many 
of those penalties to bring in what outliers may be out there 
in line.
    On the other hand, I also think that one of the things that 
needs to be looked at when you talk about enforcement is that 
for especially the Internet companies that don't make any 
attempt at all to verify their contact lenses and dispense 
contact lenses without prescriptions, that the FDA regulations 
and laws that already apply to that particular issue, that the 
FDA be encouraged to follow through and prosecute those folks 
that are doing that piece so that you are covering both sides.
    You know, if $11,000 doesn't seem to be the magic number, I 
mean, we are certainly open to whatever that number is. And as 
Mr.----
    Mr. Terry. How about private right of remedy?
    Mr. Cummings. And, as Mr. Hubbard said, certainly there are 
going to be a few consumers in that process that would get 
caught while you work through that process. But I do not 
believe with those kinds of penalties and sanctions and also 
the possibility of losing your license, that it would take too 
long to work through that process.
    Mr. Terry. Thank you.
    Mr. Stearns. The author of the bill, Mr. Burr?
    Mr. Burr. Thank you, Mr. Chairman. I forgot earlier to ask 
unanimous consent that my opening statement be included in the 
record.
    Mr. Stearns. By unanimous consent, so ordered.
    Mr. Burr. I thank the gentleman.
    Ms. Venable, let me just say I heard your comments as it 
related to patients in Texas who didn't feel like they had 
necessarily been heard or that their complaints had been acted 
on. Let me suggest to my colleagues if they question whether 
this is a problem, this is one of six stacks of postcards that 
I have received in the last year relative to individuals who 
feel this is important to them.
    This is not an attempt to run optometrists out of business. 
I mean, to some degree, I am amazed at the level of fight that 
there is on what I think is a real simple piece of legislation. 
It's one that says let's let patients decide. You look at their 
eyes. You determine what their needs are.
    You know, I went to the dentist yesterday morning. They 
made an appointment for me 6 months from now, I think. Chances 
are I'll probably change it three or four times. But I get to 
make that decision. The dentist would probably love to see me 
every 3 months, but I'm the one who pays. And I get to choose 
which dentist. I get to shop to some degree. And I base it upon 
what it costs and the service that's performed.
    That's all we're talking about here. We're letting 
individuals who need contact lenses. I happen to use one of 
them. I don't need two. I haven't quite figured that out. I 
wouldn't have figured it out by myself. It was my optometrist 
who figured it out. But by the same token, I would like to buy 
the one at the least expensive place that I can.
    And I'm not sure from the standpoint of optometrists what 
makes you think you have the right to sell what you prescribe. 
We have a history up here started with Congressman Pete Stark 
that when we solve problems that cost the system too much 
money, we begin to make some rules and regulations that I don't 
always agree with. And I have tried to change some of them.
    Let me just sort of send a shot across the bow that in the 
absence of us trying to find a way to work together, this is 
where we end up. And we're not always quick to go back and fix 
some of our mistakes.
    Let me ask Mr. Beales. If this legislation were amended to 
include passive verification, is there a need then to increase 
the enforcement mechanism in this bill, do you think?
    Mr. Beales. Well, I think passive verification is much 
easier to enforce because it is in many respects self-
enforcing. The place where we would need to focus our 
enforcement efforts would be on the providers to make sure that 
they were seeking the passive verification, but that's a 
relatively small number of people, as opposed to having to 
visit each potential eye care provider to see whether, in fact, 
they're responding to verifications. It would be a much simpler 
problem.
    Mr. Burr. And if I remember correctly--and somebody correct 
me if I am wrong--currently to fill or to sell a contact lens 
without a prescription exposes somebody to a significant fine. 
Am I correct? Does anybody object to that?
    Mr. Hubbard. No. That's true.
    Mr. Burr. Is that true, Dr. Cummings?
    Mr. Cummings. Yes.
    Mr. Burr. So only somebody with the intent of deceiving 
most of the time would expose themselves to that fine?
    Mr. Hubbard. Unfortunately, the mechanism's in place to 
impose that fine. But it's never been acted upon. The FDA has 
not acted upon fining people for doing that. But it is there.
    Mr. Burr. And do you know that the offer was made to 
strengthen it in this legislation? An optometrist declined the 
offer, which really makes me as the author of the bill if 
everybody's intent is to actually focus on the patients to 
solve some of the problems that we are dealing with. They may 
not be yours. They're somebody's. They happened to have found 
their way to my office.
    That's what we're supposed to respond to, people who feel 
that they have a problem. I don't think there's any question we 
can do it better than we do it today.
    Mr. Chairman, I thank you for holding this hearing. I thank 
all of my colleagues for their indulgence. But I also encourage 
you that now is a good time that we ask Chairman Tauzin to mark 
this legislation up or for you to mark it up and then for us to 
mark it up in full committee. And I assure the Chair that he 
will have my full support as we try to do that. And I yield 
back.
    Mr. Stearns. And I thank the gentleman and for his cogent 
bill here. I think the hearing has brought out that there is a 
lot of support and need for this type of bill.
    I would conclude by just asking Dr. Cummings, if we 
included in this bill a passive standard verification, would 
you support the bill?
    Mr. Cummings. I don't think that a passive verification is 
something that we could totally support.
    Mr. Stearns. So you are saying unequivocally you could not 
support it? I mean, is there a way we could tweak this with a 
passive verification that would make it acceptable to you?
    Mr. Cummings. I think there is always room to look at 
options and try and work out something that is acceptable to 
us, but a--and we would be more than willing to sit down and 
work with you.
    Mr. Stearns. I appreciate your help here. We certainly want 
to reach out to get professional people like yourself involved 
and not move without your feedback.
    So we appreciate all of our witnesses today for coming. And 
with that, the subcommittee is adjourned.
    [Whereupon, at 2:45 p.m., the hearing was adjourned.]

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