FTC Issues Final Rule Implementing Fairness to Contact Lens Consumers Act

The Federal Trade Commission has issued its final rule implementing the Fairness to Contact Lens Consumers Act. The Act, which was enacted on December 6, 2003, requires that contact lens prescribers provide patients with a copy of their contact lens prescriptions after a contact lens fitting and verify those prescriptions to any third party designated by a patient, such as an online seller. The Act mandates that a third-party seller may sell contact lenses to consumers if the seller obtains a copy of the prescription, or if the prescriber verifies the prescription information, either by confirming it or by correcting inaccuracies, or if the prescriber does not respond within eight business hours to the seller’s verification request – so-called “passive verification.”

The Commission published a notice of proposed rulemaking in the Federal Register on February 4, 2004, and accepted comments through April 5, 2004. The Commission received more than 8,000 comments from prescribers, trade associations, sellers, state attorneys general, and consumers.

The final Rule closely tracks the Act, and is consistent with the Act’s overall goal of enabling consumers to comparison shop and purchase contact lenses from the seller of their choice. Specifically, the final Rule:

• Requires prescribers (such as optometrists and ophthalmologists) to provide patients with a copy of their contact lens prescription immediately upon completion of a contact lens fitting;
• Requires prescribers to provide or verify contact lens prescriptions to any third party designated by a patient;
• Prohibits prescribers from placing certain conditions on the release or verification of a contact lens prescription;
• Requires contact lens sellers either to obtain a copy of a patient’s prescription or verify the prescription before selling contact lenses, and deems a prescription “verified” if, among other things, a prescriber fails to respond to a seller’s verification request within eight business hours; and
• Establishes minimum expiration dates for contact lens prescriptions.

The final Rule also allows third-party sellers flexibility in communicating with prescribers and requires sellers to keep records of all direct communications with prescribers.

“This Rule focuses on competition and convenience for consumers,” said Howard Beales, Director of the FTC’s Bureau of Consumer Protection. “It really gives consumers, prescribers, and sellers a ‘clear view’ about their rights and responsibilities under the law.”

The Commission vote to approve the final Rule and the publication of the Federal Register Notice was 5-0.

Copies of the Federal Register Notice are available from the FTC’s Web site at http://www.ftc.gov and also from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint in English or Spanish (bilingual counselors are available to take complaints), or to get free information on any of 150 consumer topics, call toll-free, 1-877-FTC-HELP (1-877-382-4357), or use the complaint form at http://www.ftc.gov. The FTC enters Internet, telemarketing, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.

(FTC File No. R411002)