Contact lens lobbies seeing red

Accusations of greed and malpractice are fueling a fierce lobbying battle over a potential change in how contact lenses are prescribed. 

The fight — spurred by legislation in Congress and an executive branch review of rules governing the products — is putting optometrists and lens manufacturers at odds with retailers and consumer groups.

{mosads}The Coalition for Patient Vision Care Safety — which includes the American Optometric Association, Alcon, Bausch & Lomb, CooperVision, and Johnson & Johnson — argues that online sellers are letting consumers buy contacts in quantities or dates outside their prescription, among other issues.

They are supportive of legislation introduced by Sen. Bill Cassidy (R-La.) that would enhanse how doctors authorize prescriptions by requiring “affirmative confirmation” in cases where a prescriber has concerns with a prescription. A seller would have to provide an email, a toll-free number or fax line for doctors to be able to communicate more easily with sellers. If a prescriber does not respond to a seller within eight business hours, the prescription can go through.

“The legislation sends a strong signal to FTC [the Federal Trade Commission] that perhaps changes need to be made,” said Al Mottur, a shareholder at Brownstein Hyatt Farber Schreck and director of the Coalition for Patient Vision Care Safety.

Under current law, sellers of contact lenses operate under “passive verification” and can process a prescription if they don’t hear from an optometrist within eight business hours. But doctors say that the process to raise concerns hasn’t worked as intended.

“An online seller that tries to circumvent the prescription and hand out lenses that go beyond the length of the prescription thereby gets in the way of patients having regular eye exams and could put their health at risk,” Mottur said.

The Cassidy bill, known as the Contact Lens Consumer Health Protection Act, runs parallel to a review by the FTC of the Contact Lens Rule, which manufacturers and optometrists are also trying to get altered.

But another group, the Coalition for Contact Lens Consumer Choice, says doctors are trying to limit competition by making it harder for patients to obtain contacts at locations other than an optometrist’s office. 

The coalition — made up of 1-800-Contacts, Lens.com, Costco, the Latino Coalition, the League of United Latin American Citizens, Americans for Prosperity, the National Taxpayers Union and the Taxpayer Protection Alliance — says the concerns raised by manufacturers and doctors are unfounded.

Both sides are bringing in Washington firepower.

In addition to registering its first in-house lobbyist, 1-800-Contacts general counsel Cindy Williams, the company has brought on Mehlman Castagnetti Rosen & Thomas and employs Polaris Government Relations and Steptoe & Johnson, which has Senate Republican veteran Darryl Nirenberg on the contract.

Supporting the Coalition for Patient Vision Care Safety is Brownstein Hyatt Farber Schreck, Cornerstone Government Affairs, Heather Podesta and Partners and, most recently, the all-GOP firm CGCN Group.

The Coalition for Patient Vision Care Safety contends that alternative retailers aren’t properly verifying prescriptions and say retailers are disseminating misleading information to consumers in some cases. Opponents reject those claims and say doctors have ample opportunity to correct an order or stop it from being filled.

The Coalition for Contact Lens Consumer Choice also points to instances of prescribers not offering patients their contact lens prescription, as required by law.

“What we’re seeing on [Capitol] Hill is that the offices are understanding that when you are out to stifle competition, the first thing that you will talk about is health and safety. If you look at AirBnb and Uber, to push them out, their opponents will talk about health and safety,” said Williams. “That’s been happening for our industry for more than a decade.”

The fight is highlighting long-running tensions.

Eye doctors are different than most in that they can sell healthcare products like eyeglasses and contacts directly to patients. However, a chunk of sales have moved to alternate retailers in recent years, like the in-house shops at Costco and online sellers such as Lens.com or 1-800-Contacts. 

The trend began after Congress passed a law in 2003, the Fairness to Contact Lens Consumers Act, aimed at opening up the market to competition. Among other things, it requires optometrists to give patients their contact prescriptions without them having to ask for it so they are able to buy from whatever retailer they choose.

There are an estimated 44 million contact-wearers in the United States. Since being established in 1995, 1-800-Contacts says it has filled 41 million orders for more than 10 million customers, and the online marketplace has only expanded since the company’s inception.

The FTC received more than 600 comment letters in response to its decision to review the Contact Lens Rule, which was put in place after the Fairness to Contact Lens Consumers Act. The agency does such reviews routinely for regulations after 10 years have passed.

The FTC did not respond to a request for comment, including questions about the timing of any new proposed rule. Advocates, however, say a proposal could come before President Obama leaves office.

Both coalitions are also encouraging the FTC to beef up its enforcement efforts on the Contact Lens Rule, which says a prescriber is prohibited from charging fees for writing a contact lens prescription, obligating the patient to purchase the lenses from them or have the patient sign a waiver before releasing a prescription.

Likewise, sellers must verify the prescription and not sell lenses to a person whose prescription has expired.

Last month, the FTC issued 45 warning letters to contact lens prescribers and 10 to contact lens sellers for potentially violating the Contact Lens Rule.

The agency did not specify which prescribers and sellers it targeted or what parts of the rule they might have violated.

— This post was updated on June 2.