Regulatory reformers know that, once protectionism is embedded in regulation, it is tough to weed it out. The latest example is the resurrected debate over patient rights to contact lens prescription information. The Federal Trade Commission has, after nearly a five year wait, issued new amendments to the Contact Lens Rule, which will give consumers more autonomy in the marketplace.

Since 2004, the Contact Lens Rule has required that prescribers, such as eye doctors, give patients copies of their prescription, free of charge, to allow them to comparison shop for contact lenses rather than only being able to buy them from the initial prescriber. Prior to this, the contact lens market was anti-competitive; eye doctors and contact lens manufacturers profited from being the only choice when it came to patients purchasing contact lenses. The Contact Lens Rule made it clear that patients could no longer be forced to buy contact lenses directly from prescribers, and instead could buy them from other sources, including online contact lens sellers.

Although prescribers were legally required to allow patients to buy contact lenses from other sellers, compliance with the Contact Lens Rule remained spotty, which led the FTC to consider new ways to stamp out protectionist behavior in contact lens prescribing. The FTC began reviewing the Contact Lens Rule for potential amendment in 2015, including hosting a 2018 public workshop specifically on the rule. The review was largely in response to complaints over prescriber noncompliance with releasing prescription information to patients.

Now, at long last, the FTC has unanimously approved a Final Rule that modestly revises the Contact Lens Rule to further protect consumer rights. Among a few other minor changes, it mandates that prescribers must now obtain patient signatures, which can be either digital or paper, to explicitly acknowledge that the patient received her prescription information. The idea beyond this signed acknowledgement is that it will better inform patients of their rights to purchase lenses wherever they choose. The rule also requires that, if a patient asks for another copy of the prescription at a later time, the prescriber must provide it within 40 hours. These records must be kept in patients’ files for three years.

Despite these modest tweaks, the Final Rule is already facing protectionist opposition from some incumbent prescribers. In a letter to Chairman Simons at the FTC, the American Academy of Ophthalmology and the American Optometric Association claim that the new revisions have “serious financial implications” for eye doctor offices. These organizations claim that the “most significant” issue with the new rule is its requirement of patient signatures in the time of COVID-19 because prescribers will have to disinfect pens between uses, lest patients be forced to use pens that could potentially spread the virus from patient to patient. They urge the FTC to delay Final Rule implementation because of the pandemic.

The problem with this complaint is that these groups were saying much of the same thing—i.e., that the signed acknowledgment form requirement was an undue burden—even before the advent of COVID-19. It also flies in the face of basic sterilization practices that other businesses are using during the pandemic, such as simply wiping down pens with disinfectant in between customers.

It is true that overly burdensome regulations are antithetical to limited government ideals and hurt businesses, so it is important to examine the overall impact of each regulation. But the Final Rule does not fall within the overly burdensome category, and its main effect will in fact be deregulatory in that it will further free the industry from protectionist practices while at the same time expand patient rights. Given that the industry has long railed against the Contact Lens Rule, it is clear that this is yet another grasp at trying to maintain control over prescription information instead of empowering patients. It is time for incumbent interest groups to stop opposing this long overdue reform.

Image credit: Valeri Potapova

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