AOA makes robust rebuttal to FTC over proposed changes to Eyeglass Rule

March 16, 2023
During the Federal Trade Commission’s (FTC’s) recent comment period on the proposed changes, the AOA recommends updating the Eyeglass Rule to better serve and protect consumers and seeks to meet with agency officials.
Federal Trade Commission Website

The AOA is making a strongly considered case to the Federal Trade Commission (FTC) against its proposed changes to the Eyeglass Rule, saying that the proposals don’t reflect real-world marketplace conditions, making signed forms to confirm receipt of prescriptions unnecessary. The FTC’s emphasis is misdirected, the AOA argues.

The arguments were made by the AOA in a letter submitted during the recently ended FTC public comments period for proposed changes to the federal Ophthalmic Practice Rules (also known as the Eyeglass Rule). Among the proposals, the FTC is seeking to require signed acknowledgements from patients confirming they have received copies of their prescriptions following their eye exams. Copies of the acknowledgements would be kept by the practice for at least three years. The change would mirror the burdensome 2021 mandate under the Contact Lens Rule, opposed by the AOA and other medical groups and hundreds of U.S. senators and House members over the course of an epic Washington, D.C., policy clash lasting nearly five years.

Rather than the FTC’s proposed changes, the AOA recommended updating the Eyeglass Rule to better serve and protect consumers, based on its evaluation of consumer complaints and member reporting regarding certain online retailers. The most frequently reported issues, based on those complaints and concerns, relate to vision and fitting challenges and lack of retailer responsiveness following sales. Oftentimes, consumers turn to their local doctors of optometry for help when they experience vision challenges or discomfort after their purchases.

The AOA recommends the Eyeglass Rule update its consumer guidance on buying prescription eyeglasses or contact lenses online to include the following advisory for consumers:

“The online retailer cannot guarantee that the eyeglasses you have purchased will meet your visual needs. The retailer will develop eyeglasses based on the prescription provided. However, errors can occur, and the company is not required to assess whether the eyeglasses have met your visual needs following purchase.”

“If your eyeglasses do not fit well upon receipt, the online retailer is not required to adjust your eyeglasses in person. You will typically be provided with instructions on how best to self-adjust your eyeglasses to address your concerns. Some recommendations may include bending the eyeglasses yourself or adjusting how you hold your head when using the glasses.”

“The online retailer is not obligated to respond to any complaints or issues surrounding your purchase.”

Greater scrutiny is needed of online retailers and mobile apps, said the AOA, noting that none of the FTC’s current guidance addresses purchasing prescription glasses over the internet.

“While significant attention has been paid to how best to ensure physicians are adhering to requirements under the Ophthalmic Practice Act,” AOA President Ronald L. Benner, O.D., said in the AOA’s March 6 comments to the FTC, “we are concerned that online eyeglass retailers are not held to any real quality or ethical standards related to the products they provide to consumers.

Dr. Benner added: “We believe that notifying consumers of these realities in advance of purchase is especially urgent given that wearing glasses with the improper correction or fit can lead to additional health concerns such as dizziness and nausea. Currently, online retailers have no real obligation to ensure that the glasses purchased fit or address the patient’s visual needs and this should be made clear.”

The AOA is requesting meetings with the FTC to discuss the proposed rulemaking prior to the FTC issuing a final rule.

Significant burden on small business

In line with the AOA’s earlier advocacy efforts, the FTC proposals, which reference AOA input more than 50 times, do not seek to impose new mandates on doctors related to pupillary distance measurements, prescription verification or duplicative paperwork.

However, the AOA rebutted the reasoning behind the proposals by the FTC, which generated about 35 comments including from the AOA and 1-800-CONTACTS.

The FTC has said that the recordkeeping burden on prescribers would be “relatively minimal and outweighed by the benefits.” The AOA countered that the burden would indeed be significant for doctors of optometry—many of whom are small businesses by Small Business Administration (SBA) standards.

The SBA classifies practices with less than $9 million in annual receipts as a “small business.” Doctors of optometry reported $826,612 on average in gross receipts in 2021, according to AOA data. Further, nearly 92% of practices have fewer than 25 employees. Optometry practices also are dealing with historic staffing challenges and supply chain constraints that impact the cost of providing patient care. AOA members have reported a 12% increase in overhead costs since March 2020—when the World Health Organization declared COVID-19 a pandemic.

“These Rule changes, if finalized, would add a significant burden to small-business optometric practices that already are enduring financial challenges and staffing issues,” Dr. Benner commented.

Further, while the FTC has questioned if there are other ways to increase patient understanding of their right to their prescription under the rule, the AOA argued that “the American public already recognizes they have a right to obtain their prescription and to shop at their retailer of their choice.” For evidence of their savviness, the AOA cites growth in the online eyeglass retail market.

According to one report, an estimated 12.4 million Americans purchased glasses online in 2021.

“While different groups analyze the market in varying ways, each is showing significant growth in the use of the internet to comparison shop and to ultimately purchase eyeglasses,” Dr. Benner said.

While acknowledging FTC concerns related to compliance with the current prescription release requirement, the AOA said it was “aware that fewer than 50 prescribers have been warned’’ related to violations of the Eyeglass Rule.

“We understand that the FTC believes that implementing a signed confirmation form will enable the FTC to better monitor compliance and enforce the Rule, but this requirement seems to put the solution ahead of any real confirmation of whether a compliance issue exists,” Dr. Benner said. “The lack of data on compliance coupled with the drastic shifts in the eyeglass market in recent years as well as the ongoing public outreach regarding online eyeglass retail options calls into question whether there is any real need for additional regulations to be placed on small-business optometry practices across the country.”

Independent analysis

Among the comments submitted to the FTC was an analysis by Andrew Stivers, Ph.D. Stivers is associate director in the antitrust practice of NERA Economic Consulting and formerly deputy director for consumer protection in the FTC’s Bureau of Economics. He also served at the Food and Drug Administration overseeing public health information and data projects for the food program.

In his analysis, Stivers says that the standard for evaluating fairness to consumers under the Eyeglass Rule has changed, because of the evolution of the eyeglass marketplace.

Under the Eyeglass Rule, the FTC deems it an “unfair practice” if a doctor of optometry or ophthalmologist fails to provide a patient with a copy of their prescription after an eye examination (so a patient can comparison shop). When the rule was first adopted in the 1970s, Stivers points out, market conditions were decidedly different. Mass merchandisers and the internet had yet to transform the shopping experience for consumers, he observes. Consumers are now more empowered due to the internet; the marketplace is more competitive.

“Today, consumers can choose where to shop before getting an exam, which increases incentives to provide information and increases competition in ways that the Commission of 1978 could not imagine,” says Stivers, who raises the issue of harm to consumers today.

Stivers also questions FTC assumptions—that rule violations remain prevalent and that millions of consumers are still at risk of harm—for being dated, anecdotal and/or unsubstantiated by evidence.

“By contrast, today neither the regulatory nor the technological restrictions that predicated the determination of unfair practices still exists,” Stivers says. “The rise of new retail channels, and reductions in the market shares of the dominant retail channel relative to when that determination was made, provide further evidence that the conditions underlying a determination of unfair practices in retailing eyeglasses, and thus any benefits from increased regulatory requirements, cannot be presumed.

“Without such benefits, the rationale for technical compliance with the Eyeglass Rule’s specific conditions reduces a matter of administrative convenience and cannot be supported by an unfairness analysis,” he says. “That is, there is no relevant determination of unfairness associated with the proposed documentation requirements, and therefore no evidence or record that the documentation, or any effects on an underlying compliance issue, will have substantial benefits on consumers that would justify amending the Eyeglass Rule.”

Advocating for optometry and patient safety

The AOA is an advocacy force in Washington, D.C., ensuring that optometry is recognized and heeded on health care policy and other issues impacting practices, patients and public health. AOA doctors and students as well as its professional advocacy team are at the center of a 24/7/365 presence in the nation’s capital. Here are three ways to help ensure that illegal contact lens sellers are held accountable and adverse patient outcomes are reported:

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