It’s Halloween season, which means it’s that time every year when the Federal Trade Commission (FTC) tries to spook consumers out of wearing costume or decorative contact lenses. According to the FTC’s annual guidance, noncorrective cosmetic lenses can be pretty scary, especially when purchased illegally from an unauthorized retailer or without a prescription from an eye doctor.
While the black market sale of contact lenses raises some legitimate public-health concerns, the FTC’s characterization of Halloween as “Night of the Living Conjunctivitis” serves largely as an example of the sort of regulatory capture and entrenched protectionism the contact-lens industry enjoys the other 11 months of the year.
Too often, public service advisories from the industry’s regulators are more about protecting the rents of brick-and-mortar retailers than they are about eye health. In truth, taking a nap or showering with your contacts in both are far more serious health concerns than where you bought those contacts or how recently you got your prescription.
Few of the estimated 40.9 million Americans who wear contact lenses likely are aware that the contact-lens industry has been engulfed in a political struggle for more than a decade. Physicians, optometrists, retailers, lawmakers and regulators all want to control how wearers purchase their lenses and the FTC is at the center of the struggle.
Unlike other medical professionals, eye-care providers are allowed to sell the products they prescribe. According to the Coalition for Contact Lens Consumer Choice, optometrists earn up to 70 percent of their revenue from selling glasses and contact lenses. As the eyewear market entered the digital age in the mid-1990s, eye-care providers (ECPs) saw a drastic decrease in contact-lens sales. This development raised the stakes in the ongoing cycle of regulatory capture and legislative protectionism.
The FTC’s activism on issues on contact-lens prescription issues has been well-documented for more than a decade. In 2003, the FTC promulgated a rule requiring ECPs to give patients copies of their prescriptions, making it easier for them to decide to purchase the lenses elsewhere. The rule lifted anticompetitive barriers that paved the way for online retailers, such as 1-800 Contacts and Lens.com, along with discount warehouses such as Costco and Wal-Mart, to take a larger share of the eyewear market by presenting consumers more and more affordable product choices.
Unfortunately, many ECPs are less than willing to comply. In an effort to continue to profit from lens sales, many providers fail to provide the required prescription to their patients. In a 2008 survey conducted by Contact Lens Spectrum, 50 percent of prescribers self-reported not releasing the lens prescription as required. In some cases, ECPs do provide a prescription to a patient, but then falsely deny the retailer’s prescription-verification requests. According to an April 2016 statement to the FTC, 1-800 Contacts voids more than $80 million in orders in direct response to communication from ECPs.
Ratcheting up the political battle further is S. 2777, which currently sits before the Senate Commerce Committee. Sponsored by Sen. Bill Cassidy, R-La., the bill effectively would restore optometrists’ monopoly over the contact-lens industry by amending the FTC’s contact-lens rule to explicitly allow ECPs to veto verification requests from lens sellers. It thus would undermine competition by making it harder to shop around.
Dubbed the Contact Lens Consumer Health Protection Act, the bill is championed by proponents as a way to protect patient safety. But according to a recent study of nearly 1,000 patients, purchasing contacts in-office does not improve hygiene habits, nor does it reduce behavior that puts the wearer at risk for infection or inflammation. Blaming online retailers for eye infections is like blaming Ford Motor Co. or General Motors Corp. for drivers failing to change their vehicles’ oil.
Public safety laws should actually serve the purpose of making the public more safe. FTC regulation of everyday sales of contact lenses from legitimate retailers does not serve the same purpose as the regulated unauthorized or black-market sales of costume lenses. Even there, the health risk is primarily related to hygiene and proper use, rather than whether one got the same product with a piece of paper from an eye doctor.
Not only is the Contact Lens Consumer Health Protection Act an example of cronyism through protectionist legislation, it will also limit consumer choice in contact lenses. If policymakers truly care about health, innovation and the free market, they will recognize that in the war on affordable contact lenses, this bill is not an aye for an eye.
Ashley Baker is an associate policy analyst with the R Street Institute.