D&O - MID-SOUTH PCM GROUP, P.C.

9623279

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION

COMMISSIONERS:
Robert Pitofsky, Chairman
Mary L. Azcuenaga
Roscoe B. Starek, III
Sheila F. Anthony

In the Matter of

MID-SOUTH PCM GROUP, P.C., EYE AND VISION CLINIC, P.C., and INTERNATIONAL COMPUTERIZED ORTHOKERATOLOGY SOCIETY, INC., corporations, and J. MASON HURT, O.D., individually and as an officer of the corporations.

DOCKET NO. C-3773

DECISION AND ORDER

The Federal Trade Commission having initiated an investigation of certain acts and practices of the respondents named in the caption hereof, and the respondents having been furnished thereafter with a copy of a draft of complaint which the Bureau of Consumer Protection proposed to present to the Commission for its consideration and which, if issued by the Commission, would charge respondents with violation of the Federal Trade Commission Act; and

The respondents and counsel for the Commission having thereafter executed an agreement containing a consent order, an admission by the respondents of all the jurisdictional facts set forth in the aforesaid draft of complaint, a statement that the signing of said agreement is for settlement purposes only and does not constitute an admission by respondents that the law has been violated as alleged in such complaint, or that the facts as alleged in such complaint, other than jurisdictional facts, are true, and waivers and other provisions as required by the Commission's Rules; and

The Commission having thereafter considered the matter and having determined that it had reason to believe that the respondents have violated the said Act, and that a complaint should issue stating its charges in that respect, and having thereupon accepted the executed consent agreement and placed such agreement on the public record for a period of sixty (60) days, now in further conformity with the procedure prescribed in § 2.34 of its Rules, the Commission hereby issues its complaint, makes the following jurisdictional findings and enters the following order:

1.a. Respondent Mid-South PCM Group, P.C. ("Mid South"), is a Tennessee corporation, with its principal office or place of business at 2865 Summer Oaks Drive, Bartlett, TN 38134.

1.b. Respondent Eye and Vision Clinic, P.C. ("Vision Clinic"), is a Tennessee corporation, with its principal office or place of business at 2865 Summer Oaks Drive, Bartlett, TN 38134.

1.c. Respondent International Computerized Orthokeratology Society, Inc. ("ICOKS"), is a Tennessee corporation, with its principal office or place of business located at 2865 Summer Oaks Drive, Bartlett, TN 38134.

1.d. Respondent J. Mason Hurt, O.D., is the sole owner and President of the corporate respondents. He formulates, directs, and controls the policies, acts or practices of the corporate respondents. His principal office or place of business is the same as that of the corporate respondents.

2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondents, and the proceeding is in the public interest.

ORDER

DEFINITIONS

For the purposes of this order, the following definitions shall apply:

1."Competent and reliable scientific evidence" shall mean tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that has been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.

2."Clearly and prominently" shall mean:

A. In a television or video advertisement, the disclosure shall be presented simultaneously in both the audio and video portions of the advertisement. The audio disclosure shall be delivered in a volume and cadence sufficient for an ordinary consumer to hear and comprehend it. The video disclosure shall be of a size and shade, and shall appear on the screen for a duration, sufficient for an ordinary consumer to read and comprehend it.

B. In a radio advertisement, the disclosure shall be delivered in a volume and cadence sufficient for an ordinary consumer to hear and comprehend it.

C. In a print advertisement, the disclosure shall be in a type size, and in a location, that are sufficiently noticeable so that an ordinary consumer will see and read it, in print that contrasts with the background against which it appears. In multipage documents, the disclosure shall appear on the cover or first page.

D. In an advertisement on any electronic media received by consumers via computer, such as the Internet’s World Wide Web or commercial on-line computer services, the disclosure shall be in a type size, and in a location, that are sufficiently noticeable so that an ordinary consumer will see and read it, in print that contrasts with the background against which it appears. In multi-screen documents, the disclosure shall appear on the first screen and on any screen containing ordering information. Nothing contrary to, inconsistent with, or in mitigation of the disclosure shall be used in any advertisement.

3. “Refractive vision deficiency” shall mean any vision deficiency treatable by corrective lenses, including but not limited to nearsightedness (myopia), farsightedness (hyperopia), astigmatism (distorted vision), and presbyopia (aging eyes).

4. “Substantially similar service” shall mean any ophthalmic service or procedure using contact lenses or similar devices to modify the shape of the cornea and reduce or eliminate refractive vision deficiencies.

5. Unless otherwise specified, “respondents” shall mean Mid-South PCM Group, P.C., Eye and Vision Clinic, P.C., and International Computerized Orthokeratology Society, corporations, their successors and assigns and their officers; J. Mason Hurt, O.D., individually and as an officer of the corporations; and each of the above’s agents, representatives and employees.

6. “Commerce” shall mean as defined in Section 4 of the Federal Trade Commission Act, 15 U.S.C. § 44.

IT IS ORDERED that respondents, directly or through any partnership, corporation, subsidiary, division, or other device, including franchisees or licensees, in connection with the advertising, promotion, offering for sale, sale, or distribution of Precise Corneal Molding (“PCM”) services or any substantially similar service, in or affecting commerce, shall not represent, in any manner, expressly or by implication, that:

A. Such service provides a cure for any refractive vision deficiency thereby permanently eliminating the need for all corrective eyewear, including eyeglasses and contact lenses;

B. All people can achieve normal vision without eyeglasses or contact lenses on a permanent basis if they wear devices used with such service occasionally or at night;

C. Such service has been approved by the Federal Aviation Administration and all branches of the United States military for use in correcting refractive vision deficiencies; or

D. Studies at the University of Houston College of Optometry (1976-77), University of California at San Diego Medical School (1980), University of California at Berkeley College of Optometry (1982-83), and Pacific University College of Optometry (1984), prove that such service is safe and effective in correcting nearsightedness, farsightedness, and astigmatism.

II.

A. The number of people who can achieve normal vision without eyeglasses or contact lenses on a permanent basis if they wear devices used with such service occasionally or at night;

B. The number of people who will experience stabilized vision after only a few weeks or months of treatments under such service;

C. The ability of such service to prevent or reverse deteriorating nearsightedness in children;

D. The comparative safety of such service and contact lenswear;

E. The comparative effectiveness of such service and refractive surgical methods in eliminating nearsightedness, farsightedness, or any form of astigmatism; or

F. The number of people whom such service has helped achieve normal vision;

unless, at the time the representation is made, respondents possess and rely upon competent and reliable scientific evidence that substantiates the representation.

III.

IV.

IT IS FURTHER ORDERED that respondents, directly or through any partnership, corporation, subsidiary, division, or other device, including franchisees or licensees, in connection with the advertising, promotion, offering for sale, sale, or distribution of any service, procedure, or product in or affecting commerce, shall not represent, in any manner, expressly or by implication, that such service, procedure, or product is endorsed or approved by any governmental or professional organization or association, or complies with or meets standards or guidelines for such services, procedures, or products established by any such organization or association, unless such is the case.

IT IS FURTHER ORDERED that respondents, directly or through any partnership, corporation, subsidiary, division, or other device, including franchisees or licensees, in connection with the advertising, promotion, offering for sale, sale, or distribution of any service, procedure, or product, in or affecting commerce, shall not represent, in any manner, expressly or by implication, that the experience represented by any user testimonial or endorsement of the service, procedure, or product represents the typical or ordinary experience of members of the public who use the service, procedure, or product, unless:

A. The representation is true and, at the time it is made, respondents possess and rely upon competent and reliable scientific evidence that substantiates the representation; or

B. Respondents disclose, clearly and prominently, and in close proximity to the endorsement or testimonial, either:

1. what the generally expected results would be for users of the service, procedure, or product, or

2. the limited applicability of the endorser's experience to what consumers may generally expect to achieve, that is, that consumers should not expect to experience similar results.

For purposes of this Part, "endorsement" shall mean as defined in 16 C.F.R. § 255.0(b).

VI.

IT IS FURTHER ORDERED that respondents, directly or through any partnership, corporation, subsidiary, division, or other device, including franchisees or licensees, in connection with the advertising, promotion, offering for sale, sale, or distribution of ophthalmic services, procedures, or products, purporting to treat, mitigate, or cure any refractive vision deficiency, in or affecting commerce, shall not make any representation, in any manner, expressly or by implication, about the relative or absolute efficacy, performance, benefits, safety, or success of any such service, procedure, or product, unless the representation is true and, at the time the representation is made, respondents possess and rely upon competent and reliable scientific evidence that substantiates the representation.

VII.

IT IS FURTHER ORDERED that respondents shall:

A. Not disseminate to any optometrist or eye care provider any material containing any representations prohibited by this order;

B. Send by certified mail, return receipt requested, an exact copy of the notice attached hereto as Attachment A to each optometrist or eye care provider with whom respondents have done business since January 1, 1994, within thirty (30) days of the date this order becomes final, to the extent that such persons are known to respondents through a diligent search of their records, including but not limited to computer files, sales records, and inventory lists. The mailing shall not include any other documents; and,

1. In the event that respondents receive any information that subsequent to receipt of Attachment A any optometrist or eye care provider mentioned in subpart B of this part is using or disseminating any advertisement or promotional material that contains any representation prohibited by this order, respondents shall immediately notify the optometrist or eye care provider that respondents will terminate said optometrist or eye care provider’s right to market and/or perform PCM ortho-k if he or she continues to use such advertisements or promotional materials; and,

2. Terminate any optometrist or eye care provider mentioned in subpart B of this part about whom respondents receive any information that such person has continued to use advertisements or promotional materials that contain any representation prohibited by this order after receipt of the notice required by subpart B of this part;

C. For a period of three (3) years following service of this order, send by certified mail, return receipt requested, an exact copy of the notice attached hereto as Attachment A to each optometrist or eye care provider with whom respondents do business after the date of service of this order who has not previously received the notice. Such notices shall be sent no later than the earliest of: (1) the execution of a sales or training agreement or contract between respondents and the prospective optometrist or eye care provider; or (2) the receipt and deposit of payment from a prospective optometrist or eye care provider of any consideration in connection with the sale of any service or rights associated with PCM ortho-k. The mailing shall not include any other documents.

VIII.

IT IS FURTHER ORDERED that respondents Mid-South, Vision Clinic, and ICOKS, and their successors and assigns, and respondent J. Mason Hurt, O.D., shall, for five (5) years after the last date of dissemination of any representation covered by this order, maintain and upon request make available to the Federal Trade Commission for inspection and copying:

A. All advertisements and promotional materials containing the representation;

B. All materials that were relied upon in disseminating the representation; and

C. All tests, reports, studies, surveys, demonstrations or other evidence in their possession or control that contradict, qualify, or call into question the representation, or the basis relied upon for such representation, including complaints and other communications with consumers or with governmental or consumer protection organizations.

IX.

IT IS FURTHER ORDERED that respondents Mid-South, Vision Clinic, and ICOKS, and their successors and assigns, and respondent J. Mason Hurt, O.D., shall deliver a copy of this order to all current and future principals, officers, directors, and managers, and to all current and future employees, agents, independent contractors and representatives having responsibilities with respect to the subject matter of this order. Respondents shall deliver this order to current personnel within thirty (30) days after the date of service of this order, and to future personnel within thirty (30) days after the person assumes such position or responsibilities.

IT IS FURTHER ORDERED that respondents Mid-South, Vision Clinic, and ICOKS, and their successors and assigns, shall notify the Commission at least thirty (30) days prior to any change in their legal form of organization, including but not limited to dissolution, assignment, sale or other change that would result in the emergence of a successor partnership(s) or corporation(s), the creation or dissolution of a subsidiary, parent, or affiliate that engages in any acts or practices subject to this order; the proposed filing of a bankruptcy petition; or a change in respondents’ name or address. Provided, however, that, with respect to any proposed change in respondents’ legal form about which respondents learn less than thirty (30) days prior to the date such action is to take place, respondents shall notify the Commission as soon as is practicable after obtaining such knowledge. All notices required by this Part shall be sent by certified mail to the Associate Director, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Washington, D.C. 20580.

XI.

IT IS FURTHER ORDERED that respondent J. Mason Hurt, O.D., for a period of five (5) years after the date of issuance of this order, shall notify the Commission of the discontinuance of his current businesses or employment, or of his affiliation with Mid-South, Vision Clinic, or ICOKS, or of his affiliation with any new business or employment. The notice shall include the respondent's new business address and telephone number and a description of the nature of the business or employment and his duties and responsibilities. All notices required by this Part shall be sent by certified mail to the Associate Director, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Washington, D.C. 20580.

XII.

IT IS FURTHER ORDERED that respondents Mid-South, Vision Clinic, and ICOKS, and their successors and assigns, and respondent J. Mason Hurt, O.D., shall, within sixty (60) days after the date of service of this order, and one year thereafter, file with the Commission a report, in writing, setting forth in detail the manner and form in which they have complied with this order.

XIII.

This order will terminate on November 5, 2017, or twenty (20) years from the most recent date that the United States or the Federal Trade Commission files a complaint (with or without an accompanying consent decree) in federal court alleging any violation of the order, whichever comes later; provided, however, that the filing of such a complaint will not affect the duration of:

A. Any Part in this order that terminates in less than twenty (20) years;

B. This order's application to any respondent that is not named as a defendant in such

complaint; and

C. This order if such complaint is filed after the order has terminated pursuant to this Part.

Provided further, that if such complaint is dismissed or a federal court rules that the respondents did not violate any provision of the order, and the dismissal or ruling is either not appealed or upheld on appeal, then the order will terminate according to this Part as though the complaint had never been filed, except that the order will not terminate between the date such complaint is filed and the later of the deadline for appealing such dismissal or ruling and the date such dismissal or ruling is upheld on appeal.

By the Commission.

Donald S. Clark
Secretary

SEAL

ISSUED: November 5, 1997

Attachment A

BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED

[To Be Printed on International Computerized Orthokeratology Society, Inc. letterhead]

[date]

Dear [optometrist or eye care provider]:

Mid-South PCM Group, P.C., International Computerized Orthokeratology Society, Inc., Eye and Vision Clinic, P.C., and J. Mason Hurt, O.D., recently settled a civil dispute with the Federal Trade Commission (FTC) and the States of Arizona, Illinois, Missouri, Tennessee, and Texas (the States) involving advertising claims for our Precise Corneal Molding (PCM ortho-k) service. As a part of the settlement, we must make sure that you stop using or distributing advertisements or promotional materials that you may have previously received that include these claims.

Our settlements with the FTC and the States prohibit us from making false or unsubstantiated claims for PCM ortho-k or any “substantially similar service,” defined as “any ophthalmic service or procedure using contact lenses or similar devices to modify the shape of the cornea and reduce or eliminate refractive vision deficiencies.” Please see the attached FTC Complaint and Agreement Containing Consent Order for detailed information. Although we do not admit that the FTC's allegations are true, we have agreed to send this letter as a part of our settlement with the FTC.

Sincerely yours,

J. Mason Hurt, O.D.
President

International Computerized Orthokeratology Society, Inc.