[Federal Register Volume 88, Number 24 (Monday, February 6, 2023)]
[Notices]
[Pages 7723-7725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02375]
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FEDERAL TRADE COMMISSION
[File No. 192 3157]
LCA-Vision; Analysis of Proposed Consent Order To Aid Public
Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed consent agreement; request for comment.
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SUMMARY: The consent agreement in this matter settles alleged
violations of federal law prohibiting unfair or deceptive acts or
practices. The attached Analysis of Proposed Consent Order to Aid
Public Comment describes both the allegations in the draft complaint
and the terms of the consent order--embodied in the consent agreement--
that would settle these allegations.
DATES: Comments must be received on or before March 8, 2023.
ADDRESSES: Interested parties may file comments online or on paper by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Please write ``LCA-Vision;
File No. 192 3157'' on your comment and file your comment online at
https://www.regulations.gov by following the instructions on the web-
based form. If you prefer to file your comment on paper, please mail
your comment to the following address: Federal Trade Commission, Office
of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex P),
Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT: Paul Spelman (202-326-2487), Bureau of
Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue
NW, Washington, DC 20580.
SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule Sec. 2.34, 16 CFR
2.34, notice is hereby given that the above-captioned consent agreement
containing a consent order to cease and desist, having been filed with
and accepted, subject to final approval, by the Commission, has been
placed on the public record for a period of 30 days. The following
Analysis to Aid Public Comment describes the terms of the consent
agreement and the allegations in the complaint. An electronic copy of
the full text of the consent agreement package can be obtained at
https://www.ftc.gov/news-events/commission-actions.
You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before March 8, 2023.
Write ``LCA-Vision; File No. 192 3157'' on your comment. Your comment--
including your name and your state--will be placed on the public record
of this proceeding, including, to the extent practicable, on the
https://www.regulations.gov website.
Because of heightened security screening, postal mail addressed to
the Commission will be subject to delay. We strongly encourage you to
submit your comments online through the https://www.regulations.gov
website.
If you prefer to file your comment on paper, write ``LCA-Vision;
File No. 192 3157'' on your comment and on the envelope, and mail your
comment to the following address: Federal Trade Commission, Office of
the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex P),
Washington, DC 20580.
Because your comment will be placed on the publicly accessible
website at https://www.regulations.gov, you are solely responsible for
making sure your
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comment does not include any sensitive or confidential information. In
particular, your comment should not include sensitive personal
information, such as your or anyone else's Social Security number; date
of birth; driver's license number or other state identification number,
or foreign country equivalent; passport number; financial account
number; or credit or debit card number. You are also solely responsible
for making sure your comment does not include sensitive health
information, such as medical records or other individually identifiable
health information. In addition, your comment should not include any
``trade secret or any commercial or financial information which . . .
is privileged or confidential''--as provided by Section 6(f) of the FTC
Act, 15 U.S.C. 46(f), and FTC Rule Sec. 4.10(a)(2), 16 CFR
4.10(a)(2)--including competitively sensitive information such as
costs, sales statistics, inventories, formulas, patterns, devices,
manufacturing processes, or customer names.
Comments containing material for which confidential treatment is
requested must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with FTC Rule Sec. 4.9(c). In
particular, the written request for confidential treatment that
accompanies the comment must include the factual and legal basis for
the request and must identify the specific portions of the comment to
be withheld from the public record. See FTC Rule Sec. 4.9(c). Your
comment will be kept confidential only if the General Counsel grants
your request in accordance with the law and the public interest. Once
your comment has been posted on the https://www.regulations.gov
website--as legally required by FTC Rule Sec. 4.9(b)--we cannot redact
or remove your comment from that website, unless you submit a
confidentiality request that meets the requirements for such treatment
under FTC Rule Sec. 4.9(c), and the General Counsel grants that
request.
Visit the FTC website at http://www.ftc.gov to read this document
and the news release describing the proposed settlement. The FTC Act
and other laws the Commission administers permit the collection of
public comments to consider and use in this proceeding, as appropriate.
The Commission will consider all timely and responsive public comments
it receives on or before March 8, 2023. For information on the
Commission's privacy policy, including routine uses permitted by the
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.
Analysis of Proposed Consent Order To Aid Public Comment
The Federal Trade Commission (``FTC'' or ``Commission'') has
accepted, subject to final approval, an agreement containing a consent
order with LCA-Vision (``LCA''). The proposed consent order (``proposed
order'') has been placed on the public record for 30 days for receipt
of comments from interested persons. Comments received during this
period will become part of the public record. After 30 days, the
Commission will again review the agreement, along with any comments
received, and will decide whether it should withdraw from the agreement
and take appropriate action or make final the proposed order.
This matter involves LCA's advertising of the price of its LASIK
surgery. The proposed complaint alleges that LCA's advertisements
represented that LASIK was available for ``as low as'' or ``starting
at'' $250 or $295. This price was per eye, although that was not always
clearly disclosed. In truth, very few consumers qualified for the
advertised price. For example, anyone with vision worse than 20/40 was
considered ineligible. Consumers typically learned the actual price
only after undergoing a 90-minute to two-hour consultation and sales
pitch. The complaint also alleges that LCA's ads often failed to
disclose adequately the prescriptions consumers needed to qualify for
the price promotion, that few people were eligible, and that most
people paid between $1,800 and $2,295 per eye. According to the
proposed complaint, LCA's advertisements were false or misleading in
violation of Sections 5(a) and 12 of the FTC Act, and harmed consumers
by, among other things, wasting their time by luring them into sitting
for a lengthy consultation under false or deceptive pretenses.
The proposed order prohibits LCA from engaging in the alleged
deceptive conduct in the future. Section I prohibits LCA from
misrepresenting the price of LASIK or any material restrictions,
limitations, or conditions that affect the price of LASIK. Section II
requires LCA to make certain clear and conspicuous disclosures when
advertising LASIK for a price or discount for which a majority of
consumers--either nationwide or in the geographic area where specific
LCA ads are disseminated (e.g., the Cincinnati metropolitan area, the
state of Ohio)--likely would not qualify.
Sections III and IV require LCA to pay to the Commission $1,250,000
for consumer redress and describes the procedures and legal rights
related to that payment. Section V requires LCA to provide customer
information to enable the Commission to administer such redress.
Sections VI through IX are reporting and compliance provisions, which
include recordkeeping requirements and provisions requiring LCA to
provide information or documents necessary for the Commission to
monitor compliance with the proposed order. Section X states that the
proposed order will remain in effect for 20 years, with certain
exceptions.
The purpose of this analysis is to aid public comment on the
proposed order. It is not intended to constitute an official
interpretation of the complaint or proposed order, or to modify in any
way the proposed order's terms.
By direction of the Commission, Commissioner Wilson dissenting.
April J. Tabor,
Secretary.
Dissenting Statement of Commissioner Christine S. Wilson
Today the Commission announces a complaint and proposed consent
against LCA-Vision (also d/b/a LasikPlus and Joffe MediCenter). The
complaint alleges that LCA-Vision engaged in deceptive representations,
in violation of Section 5 of the FTC Act, in connection with
promotional pricing claims for its LASIK surgery. Specifically, the
complaint alleges that LCA-Vision advertised LASIK at a promotional
price of $250, $250 per eye, or $295 (Joffe MediCenter) but that the
advertisements failed to disclose, or failed to disclose adequately,
the requirements consumers must meet to be eligible for the price
promotions (Complaint Para. 8). The advertisements included
disclaimers, but the complaint alleges that the disclaimers were not
clear and conspicuous and did not provide sufficient information for
consumers to understand the eligibility requirements. (See, e.g.
Complaint Paras. 16-18).
The complaint further explains that LCA-Vision requires each
potential patient to visit a center and undergo multiple eye exams
during their consultation, including refraction, full pupil dilation,
and a corneal topographical exam (Complaint Para. 25). After these
examinations are complete, the potential patient learns whether they
qualify for LASIK surgery and if they qualify for the promotional
price. Id. The complaint asserts that the vast majority of consumers
learn they do not qualify for the promotional price (Complaint Para.
27) and implies that LCA-Vision should have informed
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consumers in its advertising of the types of prescriptions that do not
qualify, enabling ineligible consumers to avoid the wasted time and
expense of traveling to a center and obtaining a consultation.
(Complaint Para. 36).
Notably, though, the complaint explains that ``[e]ligibility for
vision correction surgery depends upon various factors, including a
patient's prescription level, the thickness of the cornea, the size of
the pupil, and the stability of the prescription.'' (Complaint Para.
7.) In addition, the complaint notes that ``Respondent sets surgery
price guidelines and parameters, including which prescriptions are
eligible for certain pricing, but generally leave decisions as to a
patient's eligibility for LASIK surgery, and the appropriate type of
surgery and laser, to the judgment of its surgeons and optometrists.''
(Complaint Para. 7.) The company's centers use two types of laser
surgery and the complaint states that the decision of which type to use
to correct a patient's eyesight is left to the surgeon. (Complaint
Paras. 6-7.)
It has been said that medicine is as much an art as a science.\1\
Even as described in the complaint, eligibility for the surgery--and,
as a secondary matter, pricing for those who are good LASIK
candidates--present complicated and nuanced questions whose answers
depend on the outcome of the eye examination and the judgement of the
attending surgeon. There are no clear rules about who does and does not
qualify for the two types of LASIK surgery offered at LCA-Vision
centers. I believe there could be instances in which patients facially
may appear to qualify for the price but, after thorough examination,
are found not to qualify because of medical conditions or complications
identified during consultation. I also believe there could be instances
in which some patients who at first blush may appear to be ineligible
in fact end up qualifying for the promotional pricing following
consultation due to the discretion the attending surgeon enjoys.
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\1\ Joseph Herman, Medicine: the science and the art, 27 J. Med.
Ethics: Medical Humanities 42 (2001) (discussing that ``[m]edicine
has been said to be both a science and an art'' and describing
scientific and artistic writings that demonstrate this point),
available at: https://mh.bmj.com/content/27/1/42.
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Moreover, I believe the free eye exam provides significant value to
the potential patient. Even consumers who do not qualify for
promotional pricing learn detailed information about their vision,
prescription, and eligibility for LASIK. As a result of this
examination, LASIK candidates could learn that their prescriptions have
changed, or that they show signs of glaucoma or other eye health issues
that might require medical intervention. While the attractive prices
advertised by LCA-Vision may have encouraged consumers to schedule
consultations, I do not agree that this battery of comprehensive
medical exams constitutes a waste of time. To the contrary, I believe
that these free, comprehensive exams provide significant value to
consumers, and that this value likely outweighs any potential injury
that may have resulted from the allegedly deceptive advertising.
Thus, I am not convinced that the claims here constitute deceptive
claims in violation of the FTC Act. LCA-Vision offered a price that is
available to some consumers and did disclose that there were
eligibility requirements. I agree that the disclosures noting
eligibility requirements and the need for an examination to determine
if one qualifies could have been presented more clearly in LCA-Vision's
advertising. But I am concerned that requiring the inclusion of
specific medical parameters in advertisements, when those parameters
could be either over- or under-inclusive depending upon the results of
the consultation, could be more confusing than helpful.
For these reasons, I dissent.
[FR Doc. 2023-02375 Filed 2-3-23; 8:45 am]
BILLING CODE 6750-01-P