[Federal Register Volume 69, Number 23 (Wednesday, February 4, 2004)]
[Rules and Regulations]
[Pages 5451-5454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2234]



  Federal Register / Vol. 69, No. 23 / Wednesday, February 4, 2004 / 
Rules and Regulations  

[[Page 5451]]


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FEDERAL TRADE COMMISSION

16 CFR Part 456

[RIN 3084-AA80]


Ophthalmic Practice Rules

AGENCY: Federal Trade Commission.

ACTION: Final rule.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') has 
completed its regulatory review of the Ophthalmic Practice Rules 
(``Rules''), which require, among other things, that eye care 
practitioners provide patients with a copy of their eyeglass 
prescription upon completion of an eye examination. Pursuant to this 
review, the Commission has determined to retain the Rules in their 
current form. This document discusses the comments received in response 
to the Commission's request for public comment, analyzes the effect of 
the enactment of the Fairness to Contact Lens Consumers Act, 15 U.S.C. 
7601-7610, and announces the Commission's decision to retain the Rules.

EFFECTIVE DATE: February 4, 2004.

FOR FURTHER INFORMATION CONTACT: Kial Young, (202) 326-3525, Federal 
Trade Commission, Bureau of Consumer Protection, Division of 
Advertising Practices, 601 Pennsylvania Avenue, NW., Washington, DC 
20580.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    As part of its systematic review of its Rules and Guides to 
determine their effectiveness and impact, the Commission published a 
request for public comment in the Federal Register on April 3, 1997, 
seeking comments about the overall costs and benefits of the Ophthalmic 
Practice Rules and related questions.\1\ The Commission received 
comments from numerous parties, including: (1) Associations 
representing various segments of the industry and professions, 
including the American Optometric Association, the Opticians 
Association of America, the National Association of Optometrists and 
Opticians, the American Academy of Ophthalmology, individual 
professionals, and mail-order sellers of contact lenses; (2) state 
attorneys general, state optometry boards, and a United States 
Congressman; and (3) consumers.\2\
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    \1\ Request for Public Comments, 62 FR 15865 (Apr. 3, 1997).
    \2\ The comments have been filed on the Commission's public 
record as Document Nos. B21940700001, B21940700002, et seq. The 
comments are cited in this document by the name of the commenter, a 
shortened version of the comment number (the last one to three 
digits), and the relevant page(s) or attachments of the comment. All 
written comments submitted are available for public inspection at 
the Public Reference Room, Room 130, Federal Trade Commission, 600 
Pennsylvania Ave., NW., Washington, DC 20580.
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    In general, the comments primarily addressed two broad issues: (1) 
Whether the current Rules, which require the release of eyeglass 
prescriptions to patients upon completion of an eye examination, should 
be retained, repealed, or modified; and (2) whether the Rules' eyeglass 
prescription release requirement (``eyeglass prescription release 
rule'') should be extended to require the release of contact lens 
prescriptions.
    With respect to the first issue, the Commission has determined to 
retain the Rules in their current form. As to the second issue, while 
the Commission's regulatory review was pending, Congress enacted and 
the President signed the Fairness to Contact Lens Consumers Act, which 
requires that prescribers release contact lens prescriptions to their 
patients. The FTC is publishing a Notice of Proposed Rulemaking today 
seeking comment on a proposed rule to implement the Act, including a 
contact lens prescription release requirement. Accordingly, the 
Commission concludes that it is not necessary to address during this 
regulatory review whether to extend the Ophthalmic Practice Rules to 
mandate that contact lens prescriptions be released.
    This document first describes the requirements and the background 
of the current Ophthalmic Practice Rules. It then summarizes the 
comments received regarding whether the eyeglass prescription release 
rule should be retained, eliminated, or changed, and explains the 
Commission's determination to retain that rule in its present form. 
Finally, this document discusses additional issues relating to this 
regulatory review of the Rules.

II. Description and Background of Ophthalmic Practice Rules

    The Ophthalmic Practice Rules require an eye care practitioner (an 
optometrist or ophthalmologist) to provide a patient, immediately after 
completion of an eye examination, with a free copy of his or her 
eyeglass prescription (the ``eyeglass prescription release rule''). The 
Rules also prohibit an eye care practitioner from conditioning the 
availability of an eye examination on a requirement that the patient 
agree to purchase ophthalmic goods from the practitioner. The Rules 
further prohibit an eye care practitioner from making certain 
disclaimers and waivers of liability.
    In promulgating the original Rules in 1978, the Commission found 
that many consumers were being deterred from comparison shopping for 
eyeglasses because eye care practitioners refused to release 
prescriptions, even when requested to do so, or charged an additional 
fee for the release of a prescription.\3\ At that time, prohibitions 
and restrictions on advertising of ophthalmic goods and services were 
commonplace. Indeed, eye care practitioner advertising, especially 
price advertising, was restricted in 49 states, either by governmental 
or private regulation.\4\ Without such advertising, consumers generally 
knew little about their options in purchasing eye exams and eyeglasses, 
including that they have the option of purchasing them separately. The 
Rules therefore include a requirement that eye care practitioners 
automatically release a copy of the prescription regardless of whether 
the patient requests it.\5\
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    \3\ Advertising of Ophthalmic Goods and Services, Statement of 
Basis and Purpose and Final Trade Regulation Rule, 43 FR 23992, 
23998 (June 2, 1978) (hereinafter ``1978 Statement of Basis and 
Purpose'').
    \4\ Id. at 23994.
    \5\ Ophthalmic Practice Rules, Final Trade Regulation Rule, 54 
FR 10285, 10299, 10303 (Mar. 13, 1989) (hereinafter ``1989 Statement 
of Basis and Purpose'') (citing Ophthalmic Practice Rules: State 
Restrictions on Commercial Practice, Oct. 1986, at 251-52).
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    The Commission previously has considered modifying the eyeglasses 
prescription release rule. In 1985, the agency published a notice of 
proposed rulemaking that invited comments on whether the rule should be 
modified or repealed.\6\ In 1989, the FTC decided to retain the rule, 
because there was still significant non-compliance with the rule and a 
continued lack of consumer awareness about their ability to obtain 
their prescription and purchase eyeglasses separately.\7\
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    \6\ Ophthalmic Practice Rules; Proposed Trade Regulation Rule; 
Notice of Proposed Rulemaking, 50 FR 598, 602-603 (Jan. 4, 1985).
    \7\ 1989 Statement of Basis and Purpose, supra note 5, 54 FR at 
10303.
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III. Eyeglass Prescription Release Rule

A. Summary of Comments

1. Costs and Benefits of Eyeglass Prescription Release Rule
    In connection with the Commission's review of its Ophthalmic 
Practices Rules, the April 1997 Federal Register Notice requested 
comments on whether the eyeglass prescription release rule should be 
retained, modified, or eliminated. Many commenters support retention of 
that requirement, including

[[Page 5452]]

the attorneys general of 18 states (``State Attorneys General''),\8\ 
the National Association of Optometrists and Opticians (``NAOO'') (a 
trade association whose members include many large chain optical 
firms),\9\ Opticians Association of America (``OAA''),\10\ Opticians 
Association of Georgia (``OAG''),\11\ individual opticians,\12\ the 
Illinois Association of Ophthalmology,\13\ and mail-order sellers of 
contact lenses, including 1-800 Contacts \14\ and Lens Express.\15\ 
Many consumers also filed comments in support of the eyeglass 
prescription release rule.\16\ These commenters generally argue that 
the rule continues to benefit consumers by allowing them to purchase 
eyeglasses from sellers other than their eye care practitioner, thereby 
increasing competition among eyeglass sellers and lowering the price of 
eyeglasses. The comments also state that the cost to eye care 
practitioners of providing an eyeglass prescription to their patients 
is minimal.\17\
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    \8\ Attorneys General, 118. The comment was submitted 
by the Attorneys General of Alaska, Arizona, Arkansas, California, 
Connecticut, Delaware, Florida, Illinois, Iowa, Maryland, Michigan, 
Minnesota, New York, Ohio, Pennsylvania, West Virginia and 
Wisconsin. The Attorney General of Nevada subsequently sent a letter 
joining the other states in this comment.
    \9\ NAOO, 119.
    \10\ OAA, 120. The National Academy of Opticianry also 
filed a comment, 115, stating that it supports the 
positions taken by Opticians Association of America.
    \11\ OAG, 60. See also Society of Dispensing Opticians 
of Kentucky, 28. Many individual opticians filed comments 
substantially similar to the OAG comment. See, e.g., E. Carter, 
45; D. Drake, 55; All About Vision Center, 
56; S. Sanford, 62; Oldham's Opticians, 
65; Price and Wood Opticians, 72.
    \12\ See, e.g., H. Moyer, 9; Optical Fashions, 
75; Professional Opticians, 31.
    \13\ Illinois Association of Ophthalmology, 66 at 1-2.
    \14\ 1-800 Contacts, 70 at 1.
    \15\ Lens Express, 113 at 3-4.
    \16\ See, e.g., A. King, 2; C. Bentley, 5; N. 
Fraby, 6; P. Guidoni, 12; J. Ruffino, 14; 
D. Murphy, 16; M. Walker, 17; C. Walker, 
18; A. McKinley, 19; A. Cantrell, 21; T. 
Block, 22; B. Madewell, 23; T. Yancy, 24; 
E. Sharp, 43; K. Kinsey, 53.
    \17\ See, e.g., NAOO, 119 at 9; OAA, 120 at 4; 
Illinois Association of Ophthalmology, 66 at 2.
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    For example, the NAOO contends that the rule has ``contributed 
immensely to creating a pro-consumer, pro-competitive environment in 
much of the eyewear sector today, generating not only lower prices for 
all consumers, but enormous product, technological, managerial and 
service innovations as well.''\18\ Similarly, the State Attorneys 
General said that the rule has provided consumers with a wide variety 
of alternative suppliers at varying price points and service levels, 
and has saved consumers money.\19\ Supporters of retaining the rule 
also argue that lower prices have resulted in increased accessability 
to eyewear.\20\ Other commenters, including consumers, expressed 
similar views.\21\
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    \18\ NAOO, 119 at 8-9 (quoting Regina Herzlinger, 
Market-Driven Health Care (1997)).
    \19\ Attorneys General, 118, at 2, 6.
    \20\ NAOO, 119 at 7-9. Other commenters agreed. See, 
e.g.,1-800 Contacts, 70 at 2.
    \21\ See, e.g., Lens Express, 113 at 6; OAA, 
120 at 1; G. Gac, 4 (consumer freedom of choice); 
D. Ingraham, 44 (same); W. Schaap, 3 (same); J. 
Lamet, 1 (price competition); E. Bode, 25 (same); 
F. Bassett, 7 (lack of awareness of right to obtain 
prescription); N. Simonetti, 13 (same); consumer 
15 (consumer right to prescription); E. Bode, 25 
(same).
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    On the other hand, the American Optometric Association 
(``AOA''),\22\ the California Optometric Association (``COA''),\23\ the 
Texas Optometry Board,\24\ and others urge the Commission to rescind 
the eyeglass prescription release rule. According to these commenters, 
increased competition and advertising in the eyecare marketplace now 
enable consumers to shop among a wide variety of eyeglass sellers, and 
have made consumers aware of the benefit to them of obtaining their 
eyeglass prescriptions.\25\ These commenters further contend that 
giving a prescription to a patient who does not want one imposes 
unnecessary costs on eye care practitioners, such as preparing 
unnecessary paperwork and expending their time.\26\
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    \22\ AOA, 111.
    \23\ COA, 112, at 1-2.
    \24\ Texas Optometry Board, 122.
    \25\ AOA, 111 at 1-2; COA, 112 at 4.
    \26\ COA, 112 at 7.
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2. Release Upon Request
    The request for public comment also asked whether, if the eyeglass 
prescription release rule is retained, the Commission should modify the 
rule to require an eye care practitioner to release a prescription only 
if the patient requests it, rather than releasing it automatically.
    Most commenters who support retention of the eyeglass prescription 
release rule also urge the Commission to retain the requirement that 
the prescription be released automatically. Commenters, such as OAA and 
Lens Express, assert that many consumers still are not aware that they 
can obtain their eyeglass prescription.\27\ OAA cites its 1997 survey 
showing that 68.5% of consumers are not aware of the Commission's 
eyeglass prescription release rule.\28\ In addition, some consumers 
filed comments stating that they did not request their eyeglass 
prescription from their eye care practitioners because they did not 
know they were entitled it.\29\
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    \27\ OAA, 120 at 9-10; Lens Express, 113 at 7.
    \28\ OAA, 120 at 9-10. The survey asked consumers: 
``Previous to reading this form were you aware of the Prescription 
Release Rule?''
    \29\ See, e.g., F. Bassett, 7; N. Simonetti, 
13; see also K. Kinsey, 53 (many consumers, 
especially the elderly, do not know they can shop around).
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    Commenters such as OAA also assert that, absent the automatic 
release requirement, consumers may be intimidated or coerced by their 
eye care practitioner into not requesting their prescription.\30\ OAA 
further asserts that more ophthalmologists are now dispensing eyewear, 
and that many consumers are intimidated if a doctor says that you 
should buy eyewear from him or her.\31\
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    \30\ OAA, 120 at 1, 9.
    \31\ Id. at 7-8.
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    Several commenters also contend that there is still significant 
non-compliance with the rule by eye care practitioners,\32\ especially 
the automatic release requirement.\33\ OAA cites a survey conducted in 
March 1997 that showed, according to OAA, that 29.3% of patients did 
not receive their prescriptions and 10.1% were refused their 
prescriptions when they requested them.\34\ In addition, anecdotal 
evidence in the record claims that the overwhelming majority of eye 
doctors who dispense eyewear do not automatically give patients their 
eyeglass prescriptions.\35\
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    \32\ See, e.g., OAA, 120 at 9.
    \33\ Lens Express, 113 at 4-5; OAA, 120 at 9. 
In addition, several consumers commented that they had not received 
their eyeglass prescription as required by the eyeglass prescription 
release rule. See, e.g., D. Ingraham, 44 (consumer unable 
to get copy of eyeglass prescription); J. Bassett, 7 (eye 
doctor did not release prescription until after he purchased 
eyeglasses; he did not ask); N. Simonetti, 13 (consumer has 
never been given prescription and did not ask because he did not 
know of his right to obtain prescription).
    \34\ OAA, 120 at 9. OAA did not provide any further 
details about the survey or its methodology.
    \35\ Paul Klein, O.D., ``Forcing ODs to Release CL Prescription 
Does No Good,'' Vision Monday, Apr. 3, 1995, at 46, cited in Lens 
Express, 113 Exhibit 1.
    Commenters raise some additional reasons for retaining the rule 
in its current form. For example, the OAA states that if the rule is 
cut back, many small opticians will go out of business. OAA, 
120 at 11. OAA further notes that managed vision care and 
third-party insurance programs have encouraged one-stop shopping by 
locating dispensaries and practitioners in close proximity. These 
trends, OAA asserts, have limited opportunities for opticians and 
limited freedom of choice for consumers. OAA, 120 at 7-8.
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    By contrast, commenters who argue for repeal of the eyeglass 
prescription release rule generally also urge the agency to adopt an 
``upon request'' standard if the rule is retained. According to AOA, 
many, if not most, patients want to purchase their eyeglasses from the 
eye care practitioners providing their eye

[[Page 5453]]

examination, or from an affiliated optical chain. Commenters supporting 
this revision of the rule contend that patients generally are aware of 
their right to obtain their eyeglass prescriptions,\36\ and that those 
who want their prescriptions routinely ask for and receive them. As 
such, these commenters argue, the automatic release of eyeglass 
prescriptions to all patients, including those who do not want them, is 
inefficient and wasteful.\37\
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    \36\ The Illinois Association of Ophthalmology, while supporting 
the rule as is, states that most consumers are aware that they are 
entitled to receive their eyeglass prescriptions. Illinois 
Association of Ophthalmology, 66 at 2.
    \37\ AOA, 111 at 2; COA, 112 at 2-3, 5.
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    One commenter, the Society for Excellence in Eyecare (``SEE''), a 
professional society of clinical ophthalmic surgeons, urged the 
Commission to modify the rule to require physicians to provide an 
eyeglass prescription only when appropriate in the physician's opinion 
or at the request of the patient. SEE suggests that many patients do 
not need a new prescription each time they visit an eye doctor because 
their prescription has not changed. According to SEE, giving patients a 
prescription under such circumstances probably leads many patients to 
believe that the prescription must be filled.\38\
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    \38\ SEE, 82. SEE did not submit, however, and the 
record does not contain, any evidence indicating that automatic 
release of eyeglass prescriptions in fact leads consumers to fill 
their prescriptions unnecessarily, or otherwise causes consumer 
injury.
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3. Overlap or Conflict With Other Laws
    The request for public comment also asked for comments on whether 
the Ophthalmic Practice Rules overlap or conflict with other federal, 
state, or local laws or regulations. Several commenters respond that 
the eyeglass prescription release rule overlaps with or duplicates laws 
in some states, such as California and Texas, which already require the 
release of eyeglass prescriptions.\39\ These commenters state that, at 
least as to those particular states, the existence of the state law 
makes the federal requirement unnecessary. OAA comments that optometric 
regulations in seven states conflict with the eyeglass prescription 
release rule's automatic release requirement by requiring the release 
of eyeglass prescriptions only upon the request of the patient. OAA 
further states that some of these state regulations make the 
prescription release contingent upon a patient's fulfillment of all 
financial obligations. Finally, OAA states that Oklahoma's optometric 
regulations are inconsistent with the disclaimer provisions in the 
Rules.\40\
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    \39\ See, e.g., COA, 112 at 3 (California); Texas 
Optometry Board, 122.
    \40\ OAA, 120 at 5-6.
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B. Commission's Determinations Regarding Eyeglass Prescription Release 
Rule

    The Commission has determined not to initiate a proceeding to 
repeal the eyeglass prescription release requirement. Some eye care 
practitioners may release prescriptions upon request in the absence of 
a federal release requirement. The evidence in the record, however, 
suggests that some eye care practitioners continue to refuse to release 
eyeglass prescriptions, even though this conduct has been unlawful 
under the Rules for nearly twenty-five years. If the eyeglass 
prescription release rule were eliminated, additional eye care 
practitioners might refuse to release eyeglass prescriptions so that 
they could receive the economic benefits from inducing patients to 
purchase both an eye exam and eyeglasses from them. Because release 
might not occur in the absence of a federal release requirement and 
because release of prescriptions enhances consumer choice at minimal 
compliance cost to eye care practitioners, the FTC has decided to 
retain the eyeglass prescription release rule.
    The Commission also has decided not to commence a proceeding to 
modify the rule so that eye care practitioners are only required to 
release eyeglass prescriptions upon request. The comments submitted 
indicate that some consumers still are not aware of their right under 
the rule to obtain their eyeglass prescription from their eye care 
practitioner. In the absence of automatic release, these consumers may 
not know to ask for their prescription, or their eye care practitioner 
may discourage them from requesting it. With automatic release, these 
consumers will receive their prescription so that they can comparison 
shop among eyeglass sellers if they choose to do so. The record also 
shows that the burden on eye care practitioners in releasing 
prescriptions is minimal. Moreover, the recently enacted Fairness to 
Contact Lens Consumers Act provides for automatic release of contact 
lens prescriptions, and thus maintaining automatic release of eyeglass 
prescriptions provides consistency between the two release 
requirements. In light of all these factors, the FTC declines to start 
a proceeding to amend the rule to require release of eyeglass 
prescriptions only upon request.
    Finally, the Commission concludes that the eyeglass prescription 
release rule does not conflict with other laws. The rule does not 
conflict with the optometric regulations cited by OAA, because eye care 
practitioners can comply with both the federal and the state 
requirements. The state laws cited by OAA require eye care 
practitioners to release eyeglass prescriptions upon request. These 
laws do not prohibit eye care practitioners from automatically 
releasing eyeglass prescriptions, as required by the rule. Moreover, 
there is no information in the record that any states are interpreting 
their laws in such a way as to conflict with application of the federal 
requirements.\41\
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    \41\ The provision of the Oklahoma regulation that, according to 
OAA, violates the Rules' disclaimer provision, states that ``the 
examining optometrist or physician shall not be responsible for the 
accuracy of the optical materials furnished by another person.'' As 
discussed in Part III.C.1., infra, this regulation does not conflict 
with any portion of the Commission's Rules.
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C. Other Issues Related to Ophthalmic Practice Rules

1. Waivers and Disclaimers (16 CFR 456.2(d))
    The request for public comment on the Ophthalmic Practice Rules 
also asked whether any changes should be made to the prohibition in 
Section 456.2(d) against the use of certain waivers or disclaimers of 
liability by eye care practitioners, or to the Commission's 
interpretation of that provision.\42\
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    \42\ The Federal Register Notice further specifically asked what 
problems, if any, the current requirement, or its interpretation, 
has caused, and how any such problems could be remedied.
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    Section 456.2(d) prohibits eye care practitioners from placing on 
an eyeglass prescription, requiring a patient to sign, or delivering to 
a patient, any waiver or disclaimer of liability for the accuracy of 
the eye examination or the accuracy of the ophthalmic goods and 
services dispensed by another seller. Section 456.2(d) was originally 
promulgated because disclaimers ``may have the effect of making 
consumers erroneously believe that other dispensers are not qualified 
to dispense their eyeglasses and discouraging consumers from shopping 
around.'' \43\
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    \43\ 1978 Statement of Basis and Purpose, supra note 3, 43 FR at 
23998.
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    Section 456.4 states that eye care practitioners are not liable 
under the Rules for the ophthalmic goods and services that another 
seller has dispensed. The FTC has interpreted Section 456.2(d) 
consistent with Section 456.4 to allow eye care practitioners to make 
truthful and non-misleading statements on prescriptions that sellers of 
ophthalmic goods and services are

[[Page 5454]]

responsible for harm caused by the products they sell. For example, an 
eye care practitioner may state on a prescription that ``the person who 
dispenses your eyeglasses is responsible for their accuracy.'' The eye 
care practitioner, however, may not include a waiver or disclaimer of 
its own liability along with such a statement.\44\
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    \44\ 1989 Statement of Basis and Purpose, supra note 5, 54 FR at 
10299. The Commission's interpretation of this provision originally 
was set forth at 43 FR 46296-46297 (Oct. 6, 1978).
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    COA requests that the Commission amend the Rules to allow 
disclaimers of liability for the accuracy of the ophthalmic goods and 
services dispensed by another seller.\45\ COA contends that it is 
unlikely under state tort law that an eye care practitioner would be 
held liable for the negligence or breach of warranty of an independent 
third party who provided ophthalmic goods to the practitioner's 
patients. As such, COA asserts that a disclaimer of liability provides 
truthful and useful information to the patient, alerting the consumer 
to the possibility of a dispute concerning such liability.\46\ The AOA 
similarly requests that the Rule be amended to permit eye care 
practitioners to include on prescriptions truthful and non-misleading 
disclaimers of liability for the actions of sellers of ophthalmic goods 
and services.
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    \45\ COA, 112 at 6.
    \46\ COA, 112 at 6.
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    OAA also argues that the Rules should be amended to require that 
eye care practitioners affirmatively state that they are liable for 
errors in prescriptions even if another seller, such as an optician, 
fills the prescription. OAA believes that in the absence of such a 
statement, some eye care practitioners may mislead their patients into 
believing that the eye care practitioner will not be liable in these 
circumstances.\47\ The OAG and several opticians filed similar 
comments, stating that eye care practitioners often include statements 
on prescriptions implying that if a seller other than the eye care 
practitioner fills the prescription, the goods or services sold may be 
inferior. These commenters want the Rules revised to limit the 
statements made on prescriptions to prevent statements that imply that 
the goods or services that non-eye care practitioners sell are 
inferior.\48\
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    \47\ OAA, 120 at 13. OAA does not address the point 
made by the AOA and COA.
    \48\ See, e.g., OAG, 60; E. Carter, 45; D. 
Drake, 55; All About Vision Center, 56; Price and 
Wood Opticians, 72.
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    The Commission has determined to retain Section 456.2(d) in its 
current form. No evidence was submitted that indicates that its 
restrictions on the use of disclaimers and waivers are no longer needed 
to prevent harm to consumers. In addition, because of its long-standing 
and consistent interpretation that the Rules allow eye care 
practitioners to make truthful and non-misleading statements that other 
sellers are liable for the harm their own products cause, it is not 
necessary to amend the Rules to explicitly permit such statements. 
Finally, the Commission believes that case-by-case law enforcement 
under section 5 of the FTC Act is a more effective means than 
rulemaking of addressing any false or misleading statements by eye care 
practitioners on prescriptions as to their liability for prescription 
errors or the quality of other sellers' goods and services.
2. Other Proposals
    The OAA also recommends that the Commission amend the Ophthalmic 
Practice Rules to prohibit the use of expiration dates for eyeglass 
prescriptions, with exceptions for specific, well-defined medical 
reasons. OAA states that practitioners currently use arbitrarily 
determined and unjustifiable expiration dates, such as six months or 
one year, to deter consumers from using their eyeglass 
prescriptions.\49\
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    \49\ OAA, 120 at 3-4.
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    The Commission declines to initiate a proceeding seeking to amend 
the Rules to set expiration dates for eyeglass prescriptions. As 
explained above, the purpose of the Rules is to prohibit acts and 
practices that deter consumers from comparison shopping for eyeglasses. 
There is no evidence in the record that eye care practitioners are 
using expiration dates as a means of impeding the ability of consumers 
to purchase eyeglasses from other sellers or otherwise causing consumer 
injury. In the absence of such evidence, the Commission has decided not 
to consider setting expiration dates for eyeglass prescriptions.\50\
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    \50\ The Commission notes that Congress has established a 
minimum expiration date of one year for contact lens prescriptions, 
with an exception for cases in which medical reasons warrant a 
shorter time period. See 15 U.S.C. 7604. However, different 
considerations may apply to contact lenses than to eyeglasses, and, 
in any event, the record in this regulatory review does not indicate 
consumer injury that would support a rulemaking proceeding by the 
Commission to set an expiration date for eyeglass prescriptions.
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IV. Conclusion

    For the foregoing reasons, the Commission has determined to retain 
the Ophthalmic Practices Rules in their current form.

List of Subjects in 16 CFR Part 456

    Advertising, Medical devices, Ophthalmic goods and services, Trade 
practices.

    Authority: 15 U.S.C. 41-58.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 04-2234 Filed 2-3-04; 8:45 am]
BILLING CODE 6750-01-P