[Federal Register Volume 88, Number 59 (Tuesday, March 28, 2023)]
[Proposed Rules]
[Pages 18266-18268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06338]


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FEDERAL TRADE COMMISSION

16 CFR Part 456

RIN 3084-AB37


Public Workshop Examining Proposed Changes to the Ophthalmic 
Practice Rules (Eyeglass Rule)

AGENCY: Federal Trade Commission.

ACTION: Public workshop and request for public comment.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') will 
hold a public workshop relating to its January 3, 2023, notice of 
proposed rulemaking (``NPRM'') announcing proposed changes to the 
Ophthalmic Practice Rules (``Eyeglass Rule'' or ``Rule''). The workshop 
may address the proposed confirmation of prescription release 
requirement for eyeglass prescriptions, consumers' and prescribers' 
experiences with the implementation of a similar requirement for 
contact lens prescriptions, other proposed changes to the Rule, and 
other issues raised in comments received in response to the NPRM.

DATES: The public workshop will be held on May 18, 2023, from 9:00 a.m. 
until 1:00 p.m. ET, at the Constitution Center Conference Center. The 
workshop will also be available for viewing via live webcast. Requests 
to participate as a panelist must be received by April 7, 2023. Any 
written comments related to the agenda topics or the issues discussed 
by the panelists at the workshop must be received by June 20, 2023. 
Interested parties may file a comment or a request to participate as a 
panelist online or on paper by following the instructions in Part IV of 
the SUPPLEMENTARY INFORMATION section below.

ADDRESSES: The workshop will take place in the Conference Center within 
the Constitution Center building, which is located at 400 7th Street 
SW, Washington, DC 20024. The workshop will also be available for 
viewing via live webcast on the FTC's website at https://www.ftc.gov/news-events/events/2023/05/clear-look-eyeglass-rule.

FOR FURTHER INFORMATION CONTACT: Sarah Botha, Attorney, (202) 326-2036, 
Alysa Bernstein, Attorney, (202) 326-3289, or Paul Spelman, Attorney, 
(202) 326-2487, Division of Advertising Practices, Bureau of Consumer 
Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, 
Washington, DC 20580.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    The Commission promulgated the Eyeglass Rule \1\ in 1978 under 
Section 18 of the FTC Act, which grants the Commission the authority to 
adopt rules defining unfair or deceptive acts or practices in or 
affecting commerce.\2\ The Rule declares it an unfair act or practice 
for ophthalmologists or optometrists to fail to provide one copy of a 
patient's prescription to the patient immediately after completion of 
an eye examination.\3\ The Rule also prohibits the prescriber from 
charging the patient any fee in addition to the prescriber's 
examination fee as a condition to releasing the prescription to the 
patient.\4\ The Rule protects consumers and promotes competition in the 
retail sale of eyeglasses by ensuring consumers have unconditional 
access to their prescriptions so they can comparison-shop for 
eyeglasses.
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    \1\ See 16 CFR part 456.
    \2\ 15 U.S.C. 57a(a)(1)(B).
    \3\ 16 CFR 456.2(a). A prescriber may withhold a patient's 
prescription until the patient has paid for the eye examination, but 
only if the prescriber would have required immediate payment if the 
examination had revealed that no ophthalmic goods were needed. Id.
    \4\ 16 CFR 456.2(c). The Rule further prohibits an optometrist 
or ophthalmologist from conditioning the availability of an eye 
examination on a requirement that the patient agree to purchase 
ophthalmic goods from the optometrist or ophthalmologist. 16 CFR 
456.2(b). The Rule also deems it an unfair act or practice for the 
prescriber to place on the prescription, or require the patient to 
sign, or deliver to the patient a waiver or disclaimer of prescriber 
liability or responsibility for the accuracy of the exam or the 
ophthalmic goods and services dispensed by another seller. 16 CFR 
456.2(d).
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    As part of its ongoing regulatory review program, the Commission 
published an advance notice of proposed rulemaking (``ANPR'') in 
September 2015 seeking public comment on, among other things: the 
continuing need for the Rule; the Rule's economic impact and benefits; 
possible conflict between the Rule and state, local, or other federal 
laws or regulations; and the effect on the Rule of any technological, 
economic, or other industry changes. The Commission also sought comment 
on the following

[[Page 18267]]

specific questions: should the definition of ``prescription'' be 
modified to include pupillary distance; should the Rule be extended to 
require that prescribers provide their patients with a duplicate copy 
of a prescription; and should the Rule be extended to require that a 
prescriber provide a copy to, or verify a prescription with, third 
parties authorized by the patient.\5\ The comment period closed on 
October 26, 2015, and the Commission received 868 comments.\6\ 
Virtually all commenters agreed that there is a continuing need for the 
Rule and that it benefits consumers and competition, although 
commenters differed in their opinions regarding whether the Commission 
should amend the Rule. Consumers and retailers, including many 
opticians, were generally in favor of modifying the Rule to increase 
consumer access to prescriptions, improve compliance with the Rule, and 
facilitate consumers' ability to purchase eyeglasses at the retailer of 
their choice, including from online retailers, while prescribers were 
frequently opposed to the specific amendments discussed in the ANPR.
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    \5\ Ophthalmic Practice Rules (Eyeglass Rule), Advance Notice of 
Proposed Rulemaking; Request for Comment, 80 FR 53274, 53276 (Sept. 
3, 2015).
    \6\ The comments are posted at: https://www.regulations.gov/document/FTC-2015-0095-0001.
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    In 2020, the FTC amended the Contact Lens Rule \7\ to require 
contact lens prescribers to obtain a signed acknowledgment after 
releasing a contact lens prescription to a patient, and maintain each 
such acknowledgment for a period of not less than three years.\8\ The 
amended Contact Lens Rule also defined the term ``provide the patient a 
copy'' to allow prescribers, with the patient's verifiable consent, to 
give the patient a digital copy of their prescription instead of a 
paper copy. It also obligated prescribers to provide a duplicate copy 
of a prescription within 40 business hours, and imposed new rules for 
sellers regarding verification requests and prescription 
alterations.\9\
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    \7\ While slightly different from the Eyeglass Rule, the Contact 
Lens Rule has many similar requirements, including that prescribers 
release prescriptions to patients without charge.
    \8\ Contact Lens Rule, Final Rule, 85 FR 50668 (Aug. 17, 2020).
    \9\ See 16 CFR part 315.
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    After reviewing the public comments to the Eyeglass Rule ANPR, and 
considering the rulemaking record for the 2020 Contact Lens Rule 
amendments, the Commission, on January 3 2023, published the NPRM, 
proposing to amend the Eyeglass Rule to require that prescribers obtain 
a signed acknowledgment after releasing an eyeglass prescription to a 
patient, and maintain each such acknowledgment for a period of not less 
than three years.\10\ The Commission also proposed to define the term 
``provide to the patient one copy'' to allow prescribers, with the 
patient's verifiable consent, to give the patient a digital copy of 
their prescription instead of a paper copy, and to clarify that 
presentation of proof of insurance coverage shall be deemed to be a 
payment for the purpose of determining when a prescription must be 
provided. These three amendments would align the Eyeglass Rule's 
prescription release provisions with those of the Contact Lens Rule. 
Finally, the Commission proposed a technical amendment to change the 
term ``eye examination'' to ``refractive eye examination'' throughout 
the Rule.
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    \10\ Ophthalmic Practice Rules (Eyeglass Rule), Notice of 
Proposed Rulemaking; Request for Public Comment, 88 FR 248 (Jan. 3, 
2023).
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    In its NPRM, the Commission sought public comment on the likely 
effects of these proposed amendments, including information about the 
costs and benefits and any regulatory alternatives to the proposed 
changes. The Commission also asked about any changes in technology, in 
the marketplace, or to state regulations pertaining to pupillary 
distance, that the Commission should consider. The Commission received 
27 comments in response.\11\ Several comments, including those of 
consumers, consumer groups, and retailers, supported the proposed 
changes, noting that access to eyeglass prescriptions allows consumers 
to comparison shop for eyeglasses and increases competition in the 
prescription eyeglasses marketplace. Comments also supported increased 
enforcement to encourage compliance with the Rule. Comments from 
individual prescribers, as well as certain national prescriber and 
optician organizations, generally opposed the proposed confirmation 
requirement, primarily on the grounds that confirming prescription 
receipt is unnecessary and would lead to increased costs to 
prescribers. Some comments also addressed the other proposed Rule 
changes. Commenters expressed support for the proposed amendment that 
would expressly permit digital prescription delivery with a patient's 
verifiable consent, but had differing views on whether to amend the 
Rule to allow proof of insurance coverage to constitute payment and to 
replace the term ``eye examination'' with the term ``refractive eye 
examination.'' Commenters also expressed a variety of opinions on 
whether the Rule should require inclusion of pupillary distance on the 
prescription.
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    \11\ The comments are posted at: https://www.regulations.gov/document/FTC-2023-0001-0001/comment.
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II. Issues for Discussion at the Workshop

    As part of the Eyeglass Rule regulatory review, the FTC is hosting 
a public workshop to explore information relating to the Rule changes 
proposed in the NPRM. The workshop may cover such topics as: (1) the 
costs and benefits to both consumers and eye care professionals of the 
proposed confirmation of prescription release requirement for eyeglass 
prescriptions; (2) consumers' and prescribers' experiences with the 
implementation of the similar confirmation of prescription release 
requirement for contact lens prescriptions; and (3) the likely impact 
of the proposed modifications to the Eyeglass Rule to foster 
competition and maximize consumer benefits.
    A more detailed agenda will be published at a later date, in 
advance of the scheduled workshop.

III. Public Participation Information

A. Workshop Attendance

    The workshop is free and open to the public, and will be held at 
the Constitution Center, 400 7th Street SW, Washington, DC. For 
admittance to the Constitution Center, all attendees must show valid 
government-issued photo identification, such as a driver's license. 
Please arrive early enough to allow adequate time for this process. The 
workshop will also be available for viewing via live webcast on the 
FTC's website at https://www.ftc.gov/news-events/events/2023/05/clear-look-eyeglass-rule.
    This event may be photographed, videotaped, webcast, or otherwise 
recorded. By participating in this event, you are agreeing that your 
image--and anything you say or submit--may be posted indefinitely at 
https://www.ftc.gov or on one of the Commission's publicly available 
social media sites.

B. Requests To Participate as a Panelist

    The workshop will be organized into one or more panels, which will 
address the designated topics. Panelists will be selected by FTC staff. 
Other attendees will have an opportunity to comment and ask questions. 
The Commission will place a transcript of the proceeding on the public 
record. Requests to participate as a panelist must be received on or 
before April 7, 2023, as explained in Section IV below. Persons

[[Page 18268]]

selected as panelists will be notified on or before April 21, 2023.
    Disclosing funding sources promotes transparency, ensures 
objectivity, and maintains the public's trust. If chosen, prospective 
panelists will be required to disclose the source of any support they 
received in connection with participation at the workshop. This 
information will be included in the published panelist bios as part of 
the workshop record.

C. Electronic and Paper Comments

    The submission of comments is not required for participation in the 
workshop. If a person wishes to submit paper or electronic comments 
related to the agenda topics or the issues discussed by the panelists 
at the workshop, such comments should be filed as prescribed in Section 
IV, and must be received on or before June 20, 2023.

IV. Filing Comments and Requests To Participate as a Panelist

    You can file a comment, or request to participate as a panelist, 
online or on paper. For the Commission to consider your comment, we 
must receive it on or before June 20, 2023. For the Commission to 
consider your request to participate as panelist, we must receive it by 
April 7, 2023. Write ``Eyeglass Rule, Comment, Project No. R511996'' on 
your comment, and ``Eyeglass Rule, Request to Participate, Project No. 
R511996'' on your request to participate as a panelist. 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 
publicly available website, https://www.regulations.gov.
    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online, or to send them to the Commission by overnight 
service. To make sure the Commission considers your online comment, you 
must file it at https://www.regulations.gov.
    Because your comment will be placed on the public record, you are 
solely responsible for making sure that your comment does not include 
any sensitive or confidential information. In particular, your comment 
should not include any 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 that 
your comment does not include any 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 4.10(a)(2), 16 CFR 4.10(a)(2)--including in 
particular 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 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.\12\ 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 https://www.regulations.gov, we cannot redact or remove your comment, unless 
you submit a confidentiality request that meets the requirements for 
such treatment under FTC Rule 4.9(c), and the General Counsel grants 
that request.
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    \12\ See FTC Rule 4.9(c).
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    Requests to participate as a panelist at the workshop should be 
submitted electronically to [email protected], or, if 
mailed, should be submitted in the manner detailed below. Parties are 
asked to include in their requests a brief statement setting forth 
their expertise in or knowledge of the issues on which the workshop 
will focus as well as their contact information, including a telephone 
number and email address (if available), to enable the FTC to notify 
them if they are selected.
    If you file your comment or request to participate on paper, write 
``Eyeglass Rule, Comment, Project No. R511996'' on your comment, and 
``Eyeglass Rule, Request to Participate, Project No. R511996'' on your 
request to participate as a panelist. Please mail your comment or 
request to participate to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite 
CC-5610 (Annex W), Washington, DC 20580.
    Visit the Commission website at https://www.ftc.gov to read this 
document and the news release describing it. 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 that it receives on 
or before June 20, 2023. The Commission will consider all timely 
requests to participate as a panelist in the workshop that it receives 
by April 7, 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.

V. Communications by Outside Parties to Commissioners or Their Advisors

    Written communications and summaries or transcripts of oral 
communications respecting the merits of this proceeding from any 
outside party to any Commissioner or Commissioner's advisor will be 
placed on the public record.\13\
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    \13\ See 16 CFR 1.26(b)(5).

    By direction of the Commission, Commissioner Wilson not 
participating.
Joel Christie,
Acting Secretary.
[FR Doc. 2023-06338 Filed 3-27-23; 8:45 am]
BILLING CODE 6750-01-P