Markets Wired

The Federal Trade Commission today announced the approval of a final rule amending the agency’s Contact Lens Rule, which facilitates shopping for contact lenses by requiring prescribers to automatically provide a copy of a patient’s prescription to the patient and to verify or provide prescriptions to third-party sellers.

The Final Rule requires prescribers to request that their patients confirm that they have received their prescription, and allows flexibility in the way the prescription and confirmation are provided.

“Eye doctors are required by law to provide every patient with a copy of his or her contact lens prescription, allowing patients to comparison shop for lenses,” said Bureau of Consumer Protection Director Andrew Smith. “This rule change will help to ensure that eye doctors fulfill their obligations, and will facilitate FTC enforcement of these important requirements.”

Issuance of the Final Rule follows an extensive review and consideration of thousands of public comments and materials received by the Commission between 2015 and 2019, including surveys, studies, analyses, and information generated at an FTC workshop devoted to the Rule and the evolving contact lens marketplace. It also incorporates changes made in response to public comments received following a supplemental notice of proposed rulemaking published in May 2019.

As detailed in a final notice of rulemaking to be published shortly, after a contact lens fitting, prescribers will be required to do one of the following to confirm that a patient received their prescription:

• request that the patient acknowledge receipt of the contact lens prescription by signing a separate confirmation statement;
• request that the patient sign a prescriber-retained copy of the prescription that contains a statement confirming the patient has received it;
• request that the patient sign a prescriber-retained copy of the sales receipt for the examination that contains a statement confirming the patient received the prescription; or
• provide the patient with a digital copy of the prescription, and retain evidence that it was sent, received, or made accessible, downloadable, and printable.

Prescribers must maintain proof that they satisfied the confirmation of prescription release requirement for at least three years. If a patient refuses to sign a confirmation, prescribers must note this and save it to record their compliance.

The Final Rule also will affect prescribers in several other ways. First, it adds a new definition of the term “provide to the patient a copy,” which will allow the prescriber—with the patient’s verifiable consent—to provide the patient with a digital copy of her prescription instead of a paper copy. When seeking a patient’s consent, prescribers must tell the patient the specific method of electronic delivery they will use, and must keep a record of the patient’s consent to that method for three years. The Final Rule will also require prescribers to provide patients or their designated agents with an additional copy of their prescriptions on request within 40 business hours.

The Final Rule includes several new requirements for sellers as well. To address concerns about sellers verifying prescriptions by leaving incomplete or incomprehensible automated telephone messages with prescribers, sellers who use automated telephone messages for verification must:

• record the entire call and preserve the complete recording;
• start the call by identifying it as a prescription verification request made in accordance with the Contact Lens Rule;
• deliver the verification message in a slow and deliberate manner and at a volume that the prescriber can understand; and
• make the message repeatable at the prescriber’s option.

The Final Rule also includes modifications designed to reduce illegal prescription alterations by sellers. Under the Final Rule, sellers must make prominently available a way for consumers to present their prescriptions, and must clearly disclose that method. The method of presentation and related disclosure must be provided before requesting the prescriber’s contact information to verify the prescription.

The Contact Lens Rule already prohibits prescription alteration, but the Final Rule defines “alteration” to include sellers providing, as part of a verification request, a brand or manufacturer other than that prescribed to the consumer. There are exceptions, however, for when the seller provides, as part of the verification request, the manufacturer or brand named by the consumer in response to the seller’s request for the manufacturer or brand listed on the prescription. These changes should reduce the incidence of sellers selling consumers lenses other than those that were prescribed. The Final Rule also clarifies that the only permissible substitution involves private label lenses; private label and brand name lenses can be substituted for each other when they are identical lenses made by the same manufacturer.

The Rule changes go into effect 60 days after publication in the Federal Register notice.

The Contact Lens Rule

In place since August 2004, the Rule imposes obligations on both eye-care prescribers and contact lens sellers. The prescriber must automatically provide the patient with a complete copy of the contact lens prescription after completion of a contact lens fitting, and also must verify or provide the prescription to authorized third parties. The Rule also requires that contact lens vendors sell contact lenses only in accordance with a valid prescription the seller has received from either the patient or prescriber, or has verified via direct communication with the prescriber.

The Commission vote approving publication of the final notice of rulemaking in the Federal Register was 5-0, with Commissioner Rebecca Kelly Slaughter issuing a separate statement. The final notice will be published shortly.