$3.5 million FTC settlement with Hubble signals that ignoring the Contact Lens Rule can be costly

As a result of a $3.5 million FTC settlement, Vision Path – the online seller of Hubble contacts – must eye its legal responsibilities through a stronger lens. But even if your business isn’t covered by the Contact Lens Rule, don’t blink or you could miss an important FTC message about the appropriate use of endorsements and customer reviews.

The Fairness to Contact Lens Consumers Act and the Contact Lens Rule require prescribers to automatically give patients a copy of their prescription at the completion of a contact lens fitting. Companies may sell contacts to consumers only in accordance with a prescription that is either presented to the seller or verified by phone, fax, or email with the prescriber. If the prescriber communicates to the seller within eight business hours that the prescription information isn’t valid, the seller must cancel the sale. If the prescriber approves the verification request or doesn’t get back to the seller within eight business hours, the seller can legally make the sale. A sale that results when a prescriber doesn’t respond within the allotted time is called a “passive verification.”

Vision Path sells its own Hubble contacts directly to consumer through an online subscription model. The complaint alleges the defendant violated the Contact Lens Rule by: 1) failing to properly verify consumers’ prescriptions; 2) selling contacts after prescription verification requests were denied; 3) altering prescriptions by substituting its own Hubble brand when that wasn’t what the consumer was prescribed; and 4) failing to maintain required records.

You’ll want to read the complaint to put the charges in focus, but here are just two allegations that merit a second look. The FTC says in many cases, Hubble either didn’t make the required verification calls or made calls that were incomplete or incomprehensible. For example, sometimes the company left voicemails on phone numbers that clearly weren’t eye care offices and yet took the prescriber’s failure to respond to the call it didn’t receive as “passive verification.” In other instances, Hubble conveyed its verification messages in a garbled robotic computer voice that was hard to understand. In still other cases, Hubble played those messages over “you’re on hold” music when it should have been clear that no one from the prescriber’s office was listening.

In addition, the complaint alleges that the company violated the Contact Lens Rule by substituting Hubble lenses for what consumers’ eyecare professional had prescribed. According to the FTC, the defendant did that even when it was apparent that the prescriber hadn’t fitted the consumer for Hubble lenses. In some instances, Hubble switched people even after prescribers told the company they didn’t prescribe Hubble contacts.

The FTC alleges that consumers were injured by the company’s practices. For example, some people received lenses that their medical professional hadn’t prescribed for them and for which they hadn’t been fitted. According to the complaint:

A Hubble conducted survey, which asked consumers to select the top three reasons for cancelling their subscription, found 24% of customer cancellations were because the customers needed multifocal or toric lenses (which Hubble doesn’t make or sell), 13% were because customers said they ‘couldn’t see out the lenses’ (which should not occur if they had been fitted for the lenses), 22% were because customers found the lenses uncomfortable (likewise, in most instances), and 18% were because the customers’ eye care prescribers would not let them wear Hubble lenses.

The complaint also charges Hubble with violating the FTC Act by making promises to consumers that it didn’t keep. For example, despite repeated assurances that Hubble would “reach out to your doctor on your behalf to ensure we have the right information,” the FTC says that Hubble relied instead on faulty verification practices, which often resulted in passive verification and consumers receiving lenses they hadn’t been fitted for.

In addition, the complaint challenges as deceptive some of the tactics Hubble used to counter negative publicity and generate positive consumer reviews. For example, Hubble offered some existing consumers free contacts in exchange for posting reviews on the websites of HighYa or the New York Better Business Bureau, but didn’t advise consumers to disclose that they were being compensated for their reviews. What’s more, concerned about Hubble’s BBB rating, the company undertook additional efforts to – in the words of a Hubble official – “rustle up” some positive reviews. One reviewer wrote on the BBB website, “I love this company!!! Omg I’m so sick of everyone complaining because they don’t know how to follow instructions. Literally was so simple. . . . I don’t have to wait long if I have a question too and want to call them up which is surprising. Overall very satisfied customer here!” What wasn’t disclosed? That the review came from Hubble’s own Director of Customer Experience.

To settle the law enforcement action, Hubble has agreed to pay $2 million in refunds to people harmed by the company’s conduct and a $1.5 million civil penalty. The proposed order includes injunctive provisions designed to change how the company does business going forward.

The case suggests solutions for companies that sell contacts and for those who use consumer reviews in their marketing.

Sellers must verify prescriptions in accordance with the Contact Lens Rule. Make sure the number you call is for an eyecare prescriber. When using an automated phone system, clearly identify the call as a request for a prescription verification, convey the required information in an understandable tone, give the prescriber the option to repeat what was said, and record the entire call.

Don’t alter consumers’ prescriptions. People should wear only the brand and lens type their prescriber has fit to their eyes and sellers must follow the provisions in the Contact Lens Rule designed to ensure that. For example, sellers first must provide consumers with an easy way to share their prescription – by email, text, file upload, etc. – before asking for a way to reach the prescriber directly. Following a different procedure or substituting another product could violate the Rule.

Don’t misrepresent the verification process. It’s unwise for sellers to overstate the meticulousness of the verification process, especially since it can be an entirely passive process if the seller doesn’t hear back from the prescriber within the eight-hour window.

Educate endorsers about disclosing unexpected material connections. If there is an unexpected connection between a company and a reviewer or endorser, the FTC Endorsement Guides state that the connection must be clearly and conspicuously disclosed. What’s more, legal compliance is a two-way street. The endorser has a duty to disclose, and the advertiser has an obligation to educate endorsers and monitor what they’re doing on the advertiser’s behalf.

Looking for more compliance advice? Read The Contact Lens Rule: A Guide for Prescribers and Sellers, FAQs: Complying with the Contact Lens Rule, and The FTC’s Endorsement Guides: What People Are Asking. Also worth your attention: a brand new FTC publication, Soliciting and Paying for Online Reviews: A Guide for Marketers.