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Mr. Chairman and Members of the Subcommittee, my name is Jonathan Coon, CEO
of 1-800 CONTACTS. Our company sells replacement contact lenses to consumers
through an Internet web site and a toll-free telephone number. I appreciate the
opportunity to appear before the Subcommittee today.
In general, we believe that:
1. Contact lens wearers should have the right to a copy of their contact lens
prescription - without asking for it;
2. Contact lens wearers should have the freedom to choose where they purchase
their contact lenses;
3. Contact lens wearers should be able to receive their replacement contact
lenses as quickly as practical, and their chosen retailer and their eye care
professional should be expected to cooperate to allow this to happen, and;
4. The means by which the sale of contact lenses are regulated should be
updated to account for the changes that have taken place in last 25 years in the
development, manufacture and marketing of contact lenses.
The legislation proposed by Rep. Richard Burr (H.R. 2221) will promote these
goals, and will have a direct and positive impact on the lives - and pocket
books - of the 35 million Americans who spend more than $3.5 billion every year
on contacts.
For those Members of the Subcommittee who are not familiar with contact
lenses, I have brought a few samples. When contact lenses first became available
to consumers, lenses were hard and custom made to each patient's unique
specifications. Today the vast majority of Americans who wear contact lenses
wear soft disposable lenses requiring no customization. Consumers most often buy
these mass-produced lenses four 6-packs at a time. Daily disposable customers
commonly buy 180 or 360 lenses at a time.
As you can see, contact lenses are mass produced and disposable. It is an
industry that has changed dramatically over the last 25 years. The fastest
growing segment of the market are lenses that are thrown away every day - after
a single use. Toll free numbers, overnight delivery, and the Internet have made
it possible for consumers to order replacement lenses quickly and have the exact
same lenses delivered to their door that they used to have to drive to purchase
and pick up from their eye doctor.
Contacts have changed from custom made to mass produced. The regulations
surrounding the sale of contacts have stayed the same. Contact lens wearers have
no right under federal law to automatically receive a copy of their own
prescription - a right eyeglass wearers have enjoyed for over 25 years. Contact
lenses represent one of the few remaining areas of health care where medical
professionals can both prescribe and sell the products they prescribe - an
inherent conflict of interest. As a result, for many Americans, contact lenses
are too expensive, and too difficult to replace.
Those opposed to granting contact lens wearers rights similar to those
enjoyed by eyeglass wearers frequently cite health concerns as their
justification. There are risks associated with wearing contact lenses, but those
risks have nothing do to with where the lenses are purchased. An investigation
conducted by state attorneys general concluded, "purchasers from
alternative channels have had no greater ocular health problems than purchasers
from ECPs [eye care professionals]." In settling anti-trust claims brought
by 32 state attorneys general, the American Optometric Association (AOA)
specifically agreed it could not represent that purchasing contact lenses from
alternative distributors posed increased health risks. The attorneys general
argued the opposite - that lower prices for and easier access to replacement
contact lenses encourages more frequent replacement and improved ocular health.
Mr. Chairman, I ask that copies of the attorneys general investigation and of
the consent decree signed by the AOA be included with my testimony.
Mr. Chairman, we support H.R. 2221 as an important first step for America's
approximately 35 million contact lens wearers.
1. It will grant every American who wears contact lenses the automatic right
to a copy of his or her own contact lens prescription.
2. It will promote competition and ocular health by making contacts cheaper and
easier to replace.
3. It will begin to protect consumers from the inherent conflict of interest
created when eye care professionals both prescribe and sell contact lenses.
The core principle behind this legislation is that every American should have
a right to a copy of his or her contact lens prescription without having to ask
for it. This makes sense. Having a copy of one's prescription is the consumer's
"ticket" to lower prices and better service.
In the majority of states, consumers have no automatic right to their contact
lens prescription. A survey conducted by The Detroit Free Press indicates that
consumers in the Detroit region often have a difficult time obtaining their
prescriptions. Of fifty (50) optometrists surveyed, only one would release
contact lens prescriptions to patients after an exam. Fifty-four (54) percent of
optometry offices stated that they never release contact lens prescriptions to
patients.
Under federal law, every American has an automatic right to a copy of his or
her own eyeglass prescription - without having to ask for it. When the rule was
adopted in 1978, contact lenses were custom-made, and not included. H.R. 2221
would provide equal rights for contact lens wearers by providing them with an
automatic right to a copy of their prescription.
However, having a copy of the prescription is meaningless if the retailer
chosen by the consumer cannot get the prescription verified. For example, when
consumers seek to refill their prescriptions for medicines, its generally a
simple process - the consumer goes to his or her local pharmacy, the pharmacy
calls into the prescribing physician and the physician's office then promptly
confirms, corrects or rejects the refill. That's the way it should work with
refills of contact lens prescriptions - but in most cases it does not.
Since eye care professionals both prescribe and sell contact lenses,
verification amounts to the consumer asking their doctor's permission to buy
lenses from a competitor. This inherent conflict of interest results in eye
doctors ignoring our written verification requests more than half the time.
Doctors respond quickly to tell us if there is a problem with the prescription
and more slowly or not at all if there is no problem with the prescription.
There are basically two different verification systems.
Indefinite vs. Defined:
1. "Indefinite verification" -- sometimes referred to by eye
doctors as "positive verification," this system requires a competing
seller to wait indefinitely for the eye doctor (who sells contacts) to respond
to the verification request. The seller must wait until a response is received
although no time period is defined for the doctor to respond.
2. "Defined verification" -- sometimes referred to as "passive
or presumed verification" this system defines how long an eye doctor has to
respond to a verification request when a consumer chooses to purchase from a
seller other than that same eye doctor. This system requires a seller to seek
verification from the prescriber and gives the prescriber a reasonable time
period in which to reply. If the prescriber tells the seller within that time
period that the prescription is expired or invalid, the seller must cancel the
order. If the prescriber does not respond to the seller within the defined time
period, the seller can rely on the prescription information provided by the
consumer and fill the order.
Eye doctors who sell contacts say the verification time period does not need
to be defined.
Sellers who are not eye doctors say the time period should be defined.
It's easy to explain the two positions:
Sellers who are not eye doctors must ask a competing seller of contacts for
permission to make a sale.
Eye doctors who sell contacts ask themselves.
An indefinite verification system can work where the prescriber has no
conflict of interest. For example, the verification process between medical
doctors and pharmacies is not defined. This system works despite the lack of
defined rules because medical doctors do not sell drugs and pharmacies do not
write prescriptions. The relationship is defined in such a way that the response
time can be indefinite because there is no reason for the doctor not to
cooperate. Pharmacies are not asking a competitor for permission to fill an
order. Medical doctors are not losing income by cooperating with pharmacies.
Where indefinite time period (or "positive verification") systems
have been implemented for the sale of replacement contact lenses, the result has
been widespread consumer dissatisfaction. Thousands of consumers wait so long
for a verification response that more than half ultimately cancel their orders.
Many of these customers give up and go back to the doctor to purchase lenses.
Many just keep wearing their old lenses. We also see a growing number going to
over-the-border online companies that require no verification.
In Texas alone, where an indefinite time period system has been in place for
more than a year, our company has canceled more than 40,000 customer orders
solely for non-response by the eye doctor. Consumers have filed more than 4,300
hand-signed complaints with the optometry board. Additional complaints have been
filed by consumer groups and even by eye doctors themselves. The optometry board
(made up of optometrists) has, in my opinion, taken no meaningful action to
address the consumer complaints. The result has been an unmitigated disaster for
Texas consumers with more than half of all online orders canceled simply because
the eye doctor never responds - in any time period.
A defined time period system is similar to what the FTC staff called for in
comments before the Connecticut Opticians Board, in which they stated "a
valid prescription, communicated to the seller by the patient, can be presumed
verified if the doctor is contacted and given sufficient opportunity to correct
any errors."
This compromise system was enacted into law in California last year. The
system was developed with the involvement of ophthalmologists, optometrists,
consumer groups, the California Medical Board, and the California Optometric
Association. In their written statement supporting the bill, the California
Optometric Association concluded that the law "supports safe and
responsible patient access to contact lens prescriptions" and "strikes
a reasonable balance between access and accountability." Our company has
processed more than 100,000 orders in California since the system was activated.
We are not aware of any complaints being received by the medical board from
consumers, online sellers, or eye doctors.
We agree with the California Optometric Association, and believe that a
verification system with a defined time limit is a reasonable compromise that
would work well nationwide.
Mr. Chairman, thank you for the opportunity to testify. I would be pleased to
answer any questions you may have.
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