[House Report 108-318]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    108-318
======================================================================
 
                 FAIRNESS TO CONTACT LENS CONSUMERS ACT

                                _______
                                

October 15, 2003.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Tauzin, from the Committee on Energy and Commerce, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 3140]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 3140) to provide for availability of contact 
lens prescriptions to patients, and for other purposes, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     4
Background and Need for Legislation..............................     4
Hearings.........................................................     5
Committee Consideration..........................................     6
Committee Votes..................................................     6
Committee Oversight Findings.....................................     6
Statement of General Performance Goals and Objectives............     6
New Budget Authority, Entitlement Authority, and Tax Expenditures     6
Committee Cost Estimate..........................................     6
Congressional Budget Office Estimate.............................     6
Federal Mandates Statement.......................................     8
Advisory Committee Statement.....................................     8
Constitutional Authority Statement...............................     8
Applicability to Legislative Branch..............................     8
Section-by-Section Analysis of the Legislation...................     9

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Fairness to Contact Lens Consumers 
Act''.

SEC. 2. AVAILABILITY OF CONTACT LENS PRESCRIPTIONS TO PATIENTS.

  (a) In General.--When a prescriber completes a contact lens fitting, 
the prescriber--
          (1) whether or not requested by the patient, shall provide to 
        the patient a copy of the contact lens prescription; and
          (2) shall, as directed by any person designated to act on 
        behalf of the patient, provide or verify the contact lens 
        prescription by electronic or other means.
  (b) Limitations.--A prescriber may not--
          (1) require purchase of contact lenses from the prescriber or 
        from another person as a condition of providing a copy of a 
        prescription under subsection (a)(1) or (a)(2) or verification 
        of a prescription under subsection (a)(2);
          (2) require payment in addition to, or as part of, the fee 
        for an eye examination, fitting, and evaluation as a condition 
        of providing a copy of a prescription under subsection (a)(1) 
        or (a)(2) or verification of a prescription under subsection 
        (a)(2); or
          (3) require the patient to sign a waiver or release as a 
        condition of verifying or releasing a prescription.

SEC. 3. IMMEDIATE PAYMENT OF FEES IN LIMITED CIRCUMSTANCES.

  A prescriber may require payment of fees for an eye examination, 
fitting, and evaluation before the release of a contact lens 
prescription, but only if the prescriber requires immediate payment in 
the case of an examination that reveals no requirement for ophthalmic 
goods. For purposes of the preceding sentence, presentation of proof of 
insurance coverage for that service shall be deemed to be a payment.

SEC. 4. PRESCRIBER VERIFICATION.

  (a) Prescription Requirement.--A seller may sell contact lenses only 
in accordance with a contact lens prescription for the patient that 
is--
          (1) presented to the seller by the patient or prescriber 
        directly or by facsimile; or
          (2) verified by direct communication.
  (b) Record Requirement.--A seller shall maintain a record of all 
direct communications referred to in subsection (a).
  (c) Information.--When seeking verification of a contact lens 
prescription, a seller shall provide the prescriber with the following 
information:
          (1) Patient's full name and address.
          (2) Contact lens power, manufacturer, base curve or 
        appropriate designation, and diameter when appropriate.
          (3) Quantity of lenses ordered.
          (4) Date of patient request.
          (5) Date and time of verification request.
          (6) Name of contact person at seller's company, including 
        facsimile and telephone number.
  (d) Verification Events.--A prescription is verified under this Act 
only if one of the following occurs:
          (1) The prescriber confirms the prescription is accurate by 
        direct communication with the seller.
          (2) The prescriber informs the seller that the prescription 
        is inaccurate and provides the accurate prescription.
          (3) The prescriber fails to communicate with the seller 
        within 8 business hours, or a similar time as defined by the 
        Federal Trade Commission, after receiving from the seller the 
        information described in subsection (c).
  (e) Invalid Prescription.--If a prescriber informs a seller before 
the deadline under subsection (d)(3) that the contact lens prescription 
is inaccurate, expired, or otherwise invalid, the seller shall not fill 
the prescription. The prescriber shall specify the basis for the 
inaccuracy or invalidity of the prescription. If the prescription 
communicated by the seller to the prescriber is inaccurate, the 
prescriber shall correct it.
  (f) No Alteration.--A seller may not alter a contact lens 
prescription. Notwithstanding the preceding sentence, if the same 
contact lens is manufactured by the same company and sold under 
multiple labels to individual providers, the seller may fill the 
prescription with a contact lens manufactured by that company under 
another label.
  (g) Direct Communication.--As used in this section, the term ``direct 
communication'' includes communication by telephone, facsimile, or 
electronic mail.

SEC. 5. EXPIRATION OF CONTACT LENS PRESCRIPTIONS.

  (a) In General.--A contact lens prescription shall expire--
          (1) on the date specified by the law of the State in which 
        the prescription was written, if that date is one year or more 
        after the issue date of the prescription;
          (2) not less than one year after the issue date of the 
        prescription if such State law specifies no date or a date that 
        is less than one year after the issue date of the prescription; 
        or
          (3) notwithstanding paragraphs (1) and (2), on the date 
        specified by the prescriber, if that date is based on the 
        medical judgment of the prescriber with respect to the ocular 
        health of the patient.
  (b) Special Rules for Prescriptions of Less Than 1 Year.--If a 
prescription expires in less than 1 year, the reasons for the judgment 
referred to in subsection (a)(3) shall be documented in the patient's 
medical record. In no circumstance shall the prescription expiration 
date be less than the period of time recommended by the prescriber for 
a reexamination of the patient that is medically necessary.
  (c) Definition.--As used in this section, the term ``issue date'' 
means the date on which the patient receives a copy of the 
prescription.

SEC. 6. CONTENT OF ADVERTISEMENTS AND OTHER REPRESENTATIONS.

  Any person that engages in the manufacture, processing, assembly, 
sale, offering for sale, or distribution of contact lenses may not 
represent, by advertisement, sales presentation, or otherwise, that 
contact lenses may be obtained without a prescription.

SEC. 7. PROHIBITION OF CERTAIN WAIVERS.

  A prescriber may not place on the prescription, or require the 
patient to sign, or deliver to the patient a form or notice waiving or 
disclaiming the liability or responsibility of the prescriber for the 
accuracy of the eye examination. The preceding sentence does not impose 
liability on a prescriber for the ophthalmic goods and services 
dispensed by another seller pursuant to the prescriber's correctly 
verified prescription.

SEC. 8. RULEMAKING BY FEDERAL TRADE COMMISSION.

  The Federal Trade Commission shall prescribe rules pursuant to 
section 18 of the Federal Trade Commission Act (15 U.S.C. 57a) to carry 
out this Act. Rules so prescribed shall be exempt from the requirements 
of the Magnuson-Moss Warranty--Federal Trade Commission Improvement Act 
(15 U.S.C. 2301 et seq.). Any such regulations shall be issued in 
accordance with section 553 of title 5, United States Code. The first 
rules under this section shall take effect not later than 180 days 
after the effective date of this Act.

SEC. 9. VIOLATIONS.

  (a) In General.--Any violation of this Act or the rules required 
under section 8 shall be treated as a violation of a rule under section 
18 of the Federal Trade Commission Act (15 U.S.C. 57a) regarding unfair 
or deceptive acts or practices.
  (b) Actions by the Commission.--The Federal Trade Commission shall 
enforce this Act in the same manner, by the same means, and with the 
same jurisdiction, powers, and duties as though all applicable terms 
and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et 
seq.) were incorporated into and made a part of this Act.

SEC. 10. STUDY AND REPORT.

  (a) Study.--The Federal Trade Commission shall undertake a study to 
examine the strength of competition in the sale of prescription contact 
lenses. The study shall include an examination of the following issues:
          (1) Incidence of exclusive relationships between prescribers 
        or sellers and contact lens manufacturers and the impact of 
        such relationships on competition.
          (2) Difference between online and offline sellers of contact 
        lenses, including price, access, and availability.
          (3) Incidence, if any, of contact lens prescriptions that 
        specify brand name or custom labeled contact lenses, the 
        reasons for the incidence, and the effect on consumers and 
        competition.
          (4) The impact of the Federal Trade Commission eyeglasses 
        rule (16 C.F.R. 456 et seq.) on competition, the nature of the 
        enforcement of the rule, and how such enforcement has impacted 
        competition.
          (5) Any other issue that has an impact on competition in the 
        sale of prescription contact lenses.
  (b) Report.--Not later than 12 months after the effective date of 
this Act, the Chairman of the Federal Trade Commission shall submit to 
the Congress a report of the study required by subsection (a).

SEC. 11. DEFINITIONS.

  As used in this Act:
          (1) Contact lens fitting.--The term ``contact lens fitting'' 
        means the process that begins after the initial eye examination 
        and ends when a successful fit has been achieved or, in the 
        case of a renewal prescription, ends when the prescriber 
        determines that no change in prescription is required, and such 
        term may include--
                  (A) an examination to determine lens specifications;
                  (B) except in the case of a renewal of a 
                prescription, an initial evaluation of the fit of the 
                lens on the eye; and
                  (C) medically necessary follow up examinations.
          (2) Prescriber.--The term ``prescriber'' means, with respect 
        to contact lens prescriptions, an ophthalmologist, optometrist, 
        or other person permitted under State law to issue 
        prescriptions for contact lenses in compliance with any 
        applicable requirements established by the Food and Drug 
        Administration.
          (3) Contact lens prescription.--The term ``contact lens 
        prescription'' means a prescription, issued in accordance with 
        State and Federal law, that contains sufficient information for 
        the complete and accurate filling of a prescription, including 
        the following:
                  (A) Name of the patient.
                  (B) Date of examination.
                  (C) Issue date and expiration date of prescription.
                  (D) Name, postal address, telephone number, and 
                facsimile telephone number of prescriber.
                  (E) Power, material or manufacturer or both.
                  (F) Base curve or appropriate designation.
                  (G) Diameter, when appropriate.
                  (H) In the case of a private label contact lens, name 
                of manufacturer, trade name of private label brand, 
                and, if applicable, trade name of equivalent brand 
                name.

SEC. 12. EFFECTIVE DATE.

  This Act shall take effect 60 days after the date of the enactment of 
this Act.

                          PURPOSE AND SUMMARY

    The purpose of H.R. 3140 is to provide for the availability 
of contact lens prescriptions to patients, and for other 
purposes.

                  BACKGROUND AND NEED FOR LEGISLATION

    In the past ten years, there has been tremendous growth in 
the contact lens business. As the business of contact lenses 
has grown, so have the issues surrounding prescription release. 
The practice of optometrists withholding the prescription has 
limited the consumer's ability to shop for the best price and 
has impacted competition.
    A consumer's right to his or her eyeglass prescription was 
mandated by a 1978 Federal Trade Commission (FTC) regulation. 
As a result of that regulation, there is significantly more 
competition, better service, and lower prices for eyeglasses. 
Contact lenses were not included in that regulation because, at 
that time, contact lenses were an emerging technology. Hard 
lenses were predominant and were custom made for each 
individual. Today, although 36 million Americans wear contact 
lenses, and approximately 85 percent of all contact lens 
wearers wear mass-produced soft contact lenses, consumers still 
do not have the right to their contact lens prescription under 
federal law. H.R. 3140 gives consumers that right.
    The consumer's right to a copy of their contact lens 
prescription means nothing unless consumers can fill that 
prescription at the business of their choice. Consumers are now 
offered a myriad of competitive options to fill contact lens 
prescriptions from the optometrist's office, to third party 
sellers like pharmacies, department stores, and Internet or 
mail order outlets. However, despite the range of options, 
consumers continue to face a difficult time getting 
prescriptions filled by alternative third party sellers due to 
prescription verification obstacles.
    Unlike medical doctors who are prohibited from selling the 
drugs they prescribe, eye doctors and optometrists 
(``doctors'') are able to fill the contact lens prescriptions 
they write. This sets up an inherent conflict of interest 
because third party sellers are forced to compete for the sale 
of lenses with the individual who is writing the prescription.
    A number of states have established laws dealing with 
release of contact lens prescriptions. Nearly all of these 
states have mandated the right of the consumer to their 
prescription, but states have taken different positions on how 
and when the prescription can be verified and filled.
    There are two kinds of verification systems--active and 
passive. An active verification system requires a third party 
seller to receive actual verification of the contact lens 
prescription by the doctor before it can be filled. If a doctor 
fails, intentionally or not, to call the third party seller to 
verify, the prescription cannot be filled. This creates a 
system that requires third party sellers to ask permission of 
their competitor to make a sale. Third party sellers argue they 
do not receive the verification needed to fill a prescription, 
which effectively eliminates them from the market, and prevents 
consumers from shopping around for lower prices and the most 
convenient service.
    The alternative system is passive verification, which 
allows the third party seller to call the doctor to verify a 
prescription and if the doctor does not call back within a 
certain period of time, the prescription can be filled. H.R. 
3140 adopts a passive verification system in order to best 
serve the consumer. The Subcommittee on Commerce, Trade, and 
Consumer Protection heard testimony from consumers and 
businesses of the unusually high number of consumer complaints 
in states that rely on active verification schemes. A passive 
verification system ensures that consumers are not caught in 
the competitive tug-of-war between doctors and third party 
sellers for the sale of contact lenses.
    H.R. 3140 will increase competition in the sale of contact 
lenses which will bring a substantial savings to America's 
contact lens wearers. Consumers spend an estimated $3.5 billion 
annually on replacement contact lenses. Consumers who order 
prescription refills from alternative sellers can save, on 
average, 20 percent per order.
    A uniform national standard for prescription release and 
verification will best serve the consumer. H.R. 3140 promotes 
competition, consumer choice, and lower prices by extending to 
contact lens wearers the same automatic right to copies of 
their own prescriptions and allows consumers to purchase 
contact lenses from the provider of their choice.

                                HEARINGS

    The Subcommittee on Commerce, Trade, and Consumer 
Protection held a hearing on H.R. 2221 on September 9, 2003, 
the legislative precursor to H.R. 3140. The Subcommittee 
received testimony from Ms. Maria Martinez; Mr. J. Howard 
Beales, III, Director, Bureau of Consumer Protection, Federal 
Trade Commission; Mr. Jonathan C. Coon, Chief Executive 
Officer, 1-800 Contacts; Dr. J. Pat Cummings, O.D., Immediate 
Past President, American Optometric Association; Mr. Robert L. 
Hubbard, Director of Litigation, Antitrust Bureau, Office of 
the New York Attorney General; Ms. Ami Gadhia, Consumers Union; 
and, Ms. Peggy Venable, State Director, Citizens for a Sound 
Economy.

                        COMMITTEE CONSIDERATION

    On Wednesday, September 24, 2003, the Subcommittee on 
Commerce, Trade, and Consumer Protection met in open markup 
session and approved H.R. 3140 for Full Committee consideration 
by a voice vote, a quorum being present. On Wednesday, October 
1, 2003, the Full Committee met in open markup session and 
ordered H.R. 3140 favorably reported to the House, with 
amendment, by a voice vote, a quorum being present.

                            COMMITTEE VOTES

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report legislation and amendments thereto. 
There were no record votes taken in connection with ordering 
H.R. 3140 reported. A motion by Mr. Tauzin to order H.R. 3140 
reported to the House was agreed to by a voice vote.

                      COMMITTEE OVERSIGHT FINDINGS

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee has not held oversight 
or legislative hearings on this legislation.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    The goal of this legislation is to allow consumers access 
to their contact lens prescriptions and to provide for the 
verification of such prescriptions.

   NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.R. 
3140, the ``Fairness to Contact Lens Consumers Act,'' would 
result in no new or increased budget authority, entitlement 
authority, or tax expenditures or revenues.

                        COMMITTEE COST ESTIMATE

    The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 402 of the Congressional Budget Act of 1974.

                  CONGRESSIONAL BUDGET OFFICE ESTIMATE

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
provided by the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 15, 2003.
Hon. W.J. ``Billy'' Tauzin,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3140, the Fairness 
to Contact Lens Consumers Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Melissa E. 
Zimmerman (for federal costs), Sarah Puro (for the impact on 
state and local governments), and Jean Talarico (for the impact 
on the private sector).
            Sincerely,
                                      Elizabeth M. Robinson
                               (For Douglas Holtz-Eakin, Director).
    Enclosure.

H.R. 3140--Fairness to Contact Lens Consumers Act

     H.R. 3140 would establish procedures for issuers of 
contact lens prescriptions to follow concerning patients' 
access to prescriptions. It would direct the Federal Trade 
Commission (FTC) to develop regulations to implement the bill 
and to complete a study on competition in the sale of 
prescription contact lenses. Based on information provided by 
the FTC, CBO estimates that implementing H.R. 3140 would have 
an insignificant effect on spending subject to the availability 
of appropriated funds. The bill would not affect direct 
spending or revenues.
     H.R. 3140 contains two intergovernmental mandates as 
defined by the Unfunded Mandates Reform Act (UMRA), but CBO 
estimates that the resulting costs would not be significant and 
would not exceed the threshold established in UMRA ($59 million 
in 2003, adjusted annually for inflation).
     First, the bill would preempt state law in the five states 
that have stricter requirements for prescription verification, 
but CBO estimates that the preemption would impose no costs on 
those states. Second, the bill would require prescribers of 
contact lenses--including some who may work for public 
entities--to provide the patient a copy of the prescription and 
to verify contact lens prescriptions to third-party 
manufacturers. Since the bill would simply require eye care 
professionals to return the call of a third-party manufacturer 
if the prescription the manufacturer has is wrong, CBO 
estimates that the bill would impose no significant costs on 
those entities. In total, the costs of the mandates in the bill 
would fall substantially below the threshold established in 
UMRA.
     H.R. 3140 would also impose private-sector mandates as 
defined in UMRA on sellers and prescribers of contact lenses. 
Prescribers, as defined in the bill, include ophthalmologists, 
optometrists, or other persons permitted under state law to 
issue prescriptions for contact lenses. CBO expects that the 
incremental costs of those mandates would fall below the annual 
threshold for the private sector established by UMRA ($117 
million in 2003, adjusted annually for inflation).
     In order to sell contact lenses, sellers would have to 
obtain prescriptions from patients or prescribers directly or 
by facsimile; prescriptions received by other methods would 
require verification from the prescriber. The bill also would 
require sellers to maintain records for all prescription 
verifications that are communicated by telephone or electronic 
mail.
     In addition, H.R. 3140 would require the prescriber, after 
a contact lens fitting, to provide a contact lens prescription 
to the patient or to provide or verify the prescription to any 
person designated to act on behalf of the patient. The bill 
also would require prescribers, when requested by sellers of 
contact lenses, to verify contact lens prescriptions.
     According to the FTC, roughly two-thirds of states already 
require some form of prescription release. Currently, many of 
the larger sellers of contact lenses voluntarily comply with 
the verification and recordkeeping requirements of the bill. 
Furthermore, according to industry sources and the FTC, the 
additional costs for the sellers and prescribers not now in 
compliance with the requirements of the bill would be small. 
CBO, therefore, expects that the incremental cost of all the 
private-sector mandates in the bill would fall below UMRA's 
threshold.
     The CBO staff contacts for this estimate are Melissa E. 
Zimmerman (for federal costs), Sarah Puro (for the impact on 
state and local governments), and Jean Talarico (for the impact 
on the private sector). This estimate was approved by Peter H. 
Fontaine, Deputy Assistant Director for Budget Analysis.

                       FEDERAL MANDATES STATEMENT

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      ADVISORY COMMITTEE STATEMENT

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
Constitutional authority for this legislation is provided in 
Article I, section 8, clause 3, which grants Congress the power 
to regulate commerce with foreign nations, among the several 
States, and with the Indian tribes.

                  APPLICABILITY TO LEGISLATIVE BRANCH

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

Section 1. Short title

    Section 1 establishes the short title as the ``Fairness to 
Contact Lens Consumers Act.''

Section 2. Availability of contact lens prescriptions to patients

    Section 2(a) requires prescribers to provide patients with 
a copy of their contact lens prescription, whether or not 
requested by the patient. Additionally, prescribers are 
required to provide or verify a copy of the patients contact 
lens prescription to any person designated to act on behalf of 
the patient.
    Section 2(b) mandates that prescribers do not, as a 
condition of providing or verifying the contact lens 
prescription, require purchase of contact lenses from the 
prescriber, require payment in addition to, or as part of, the 
fee for an eye examination, fitting and evaluation, or require 
the patient to sign a waiver or release.

Section 3. Immediate payment of fees in limited circumstances

    Section 3 provides that a prescriber may require payment of 
fees for an eye examination, fitting or evaluation before the 
release of a contact lens prescription only if the prescriber 
would have required immediate payment if the examination had 
not revealed the need for ophthalmic goods. Presentation of 
proof of insurance coverage for that service is deemed to be 
payment.

Section 4. Prescriber verification

    Section 4 established a passive verification program for 
the verification of contact lens prescriptions. Section 4(a) 
allows a seller to verify a contact lens prescription if it is 
(1) presented to the seller by the patient or prescriber 
directly or by facsimile, or (2) verified by direct 
communication. Section 4(b) requires the seller to maintain a 
record of all direct communications referred to in (a).
    Section 4(c) details the information the seller must supply 
to the prescriber, in order for the prescriber to verify a 
contact lens prescription: (1) Patients full name; (2) contact 
lens power, manufacturer, base curve or appropriate 
designation, and diameter when appropriate; (3) quantity of 
lenses ordered; (4) date of patient request; (5) date and time 
of verification request; and, (6) name of contact person at 
seller's company, including facsimile and telephone number.
    Section 4(d) requires that a contact lens prescription be 
verified only in one of three ways. First, verification occurs 
when the prescriber confirms the prescription is accurate by 
direct communication with the seller. Second, verification 
occurs when a prescriber informs the seller that the 
prescription is inaccurate and then provides the accurate 
prescription. Finally, verification occurs if the prescriber 
fails to communicate with the seller within 8 business hours, 
or a similar time as defined by the FTC as part of its 
rulemaking, after receiving from the information described in 
subsection (c). The Committee believes that any state law with 
an active or positive contact lens prescription verification 
system would stand as an obstacle to the accomplishment of the 
full purposes and objectives of this Act. Practically, it would 
be impossible to comply with the terms of this Act and an 
active verification scheme. Therefore, it is the intent of the 
Committee that the passive verification system in section 4(d) 
preempt any conflicting state laws that use active or positive 
contact lens prescription verification systems.
    Section 4(e) does not allow the seller to fill a 
prescription if a prescriber informs a seller before the 
deadline in section 4(d)(3) that the contact lens prescription 
in inaccurate, expired, or otherwise invalid. The prescriber 
must specify the basis for invalidity or inaccuracy. Finally, 
if the prescription communicated by the seller to the 
prescriber is inaccurate, the prescriber must correct it. Under 
section 4(f), a seller may not alter a contact lens 
prescription. However, if the same contact lens is manufactured 
by the same company and sold under multiple labels to 
individual providers, the seller may fill the prescription with 
a contact lens manufactured by that company under another 
label. This paragraph is designed to prevent eye doctors from 
prescribing private label contact lenses that can only be 
filled by the eye doctor.
    ``Direct communication'' is defined in section 4(g) as 
including communication by telephone, facsimile, or electronic 
mail. This list is not exclusive, and the Committee recognizes 
that possession by the seller of a copy of a valid prescription 
released pursuant to the consumer pursuant to section 2 shall 
also constitute ``direct communication.'' It is the intent of 
the Committee that ``direct communication'' means a message has 
been both sent and received. Transmitting the request under 
5(c) does not, in and of itself, constitute a direct 
communication. For instance, when a facsimile that is 
considered a ``direct communication'' is sent, the direct 
communication does not occur until a confirmation that the 
facsimile transmission was successful is sent. Similarly, if, 
for example, a prescriber is closed on Wednesday, has a phone 
recording stating that the office will be open at 9:00 a.m. on 
Thursday, and verification request information is left on the 
machine Tuesday evening after normal business hours, the direct 
communication would not occur, and the time period for 
verification of the prescription would not commence, until 
Thursday when the prescriber receives the request and his or 
her business hours resume. The Committee directs the FTC to set 
rules defining the time frame for verification and how it is 
calculated, and expects the FTC's rules to be crafted 
consistent with this intent.

Section 5. Expiration of contact lens prescriptions

    Section 5(a) details when a contact lens prescription 
expires. A contact lens prescription will expire (1) on the 
date specified by the law of the state in which the 
prescription is written, if that date is at least one year 
after the issue of date of the prescription; or (2) not less 
than one year after the issue date of the prescription if there 
is no state law or if the prescription is for less than one 
year. Section 5(a)(3) allows an eye doctor to write a contact 
lens prescription for less than one year if based on the 
medical judgment of the prescriber with respect to the ocular 
health of the patient. Section 5(b) requires that if a 
prescriber determines that the ocular health of the patient 
necessitates a prescription for less than one year, the reasons 
for this judgment must be documented in the patient's medical 
record. Section 5(c) defines ``issue date'' as the date on 
which the patient receives a copy of the prescription.

Section 6. Content of advertisements and other representations

    Section 6 prohibits any manufacturer, processer, seller or 
distributor of contact lenses to represent by advertisement, 
sales presentation or otherwise, that contact lenses may be 
obtained without a prescription.

Section 7. Prohibition of certain waivers

    Section 7 prohibits a prescriber from placing on a contact 
lens prescription, or requiring a patient to sign or deliver to 
the patient, a form or notice waiving or disclaiming the 
liability of the prescriber for the accuracy of the eye 
examination. This does not impose liability on a prescriber for 
ophthalmic goods and services dispensed by another seller 
pursuant to the prescribers correctly verified prescription.

Section 8. Rulemaking by Federal Trade Commission

    Section 8 requires the FTC to initiate a rulemaking 
pursuant to section 18 of the Federal Trade Commission Act (15 
U.S.C. 57a) to effectuate this Act. These rules are exempt from 
the Magnuson-Moss Warranty-Federal Trade Commission Improvement 
Act (15 U.S.C. 2301 et seq.) requirements. These rules shall 
become effective not less than 180 days after the effective 
date of the Act.

Section 9. Violations

    Section 9(a) directs the FTC to treat any violation of the 
Act or the rules enacted pursuant to the Act like a violation 
of a rule under section 18 of the Federal Trade Commission Act 
(15 U.S.C. 57a) regarding unfair or deceptive acts or 
practices. Section 9(b) requires the FTC to enforce the Act in 
the same manner, by the same means, and with the same 
jurisdiction, powers, and duties as though all applicable terms 
and provisions of the Federal Trade Commission Act (15 U.S.C. 
41 et seq.) were incorporated into and made a part of this Act.

Section 10. Study and report

    Section 10(a) requires the FTC to undertake a study to 
examine the strength of competition in the sale of prescription 
contact lenses. The study shall include a review of the 
following issues: (1) The incidence of exclusive relationships 
between prescribers or sellers and contact lens manufacturers 
and the impact of these relationships on competition; (2) the 
difference between online and offline sellers of contact 
lenses; (3) the incidence, if any, of contact lens 
prescriptions that specify brand name or custom labeled contact 
lenses, the reasons for the incidence, and the effects on 
consumers and competition; (4) the impact of the FTC eyeglasses 
rule on competition, the enforcement of the rule, and how 
enforcement has impacted competition; and, (5) any other issue 
that has an impact of competition in the sale of prescription 
contact lenses. Section 10(b) requires the report be completed 
and submitted to Congress not later than 12 months after the 
effective date of the Act.

Section 11. Definitions

    Section 11 defines ``contact lens fitting,'' 
``prescriber,'' and ``contact lens prescription.'' These 
definitions are intended to be consistent with state and 
federal law, including any Food and Drug Administration 
regulations.

Section 12. Effective date

    Section 12 provides that the Act take effect 60 days after 
the date of enactment.

                                
