Federal Register / Vol. 69, No. 23 / Wednesday, February 4, 2004 / Rules and Regulations 5451

1Request for Public Comments, 62 FR 15865 

(Apr. 3, 1997).

2The comments have been filed on the 

Commission’s public record as Document Nos. 

B21940700001, B21940700002, et seq. The 

comments are cited in this document by the name 

of the commenter, a shortened version of the 

comment number (the last one to three digits), and 

the relevant page(s) or attachments of the comment. 

All written comments submitted are available for 

public inspection at the Public Reference Room, 

Room 130, Federal Trade Commission, 600 

Pennsylvania Ave., NW., Washington, DC 20580.

3Advertising of Ophthalmic Goods and Services, 

Statement of Basis and Purpose and Final Trade 

Regulation Rule, 43 FR 23992, 23998 (June 2, 1978) 

(hereinafter ‘‘1978 Statement of Basis and 

Purpose’’).

4 Id. at 23994.

5Ophthalmic Practice Rules, Final Trade 

Regulation Rule, 54 FR 10285, 10299, 10303 (Mar. 

13, 1989) (hereinafter ‘‘1989 Statement of Basis and 

Purpose’’) (citing Ophthalmic Practice Rules: State 

Restrictions on Commercial Practice, Oct. 1986, at 

251–52).

6Ophthalmic Practice Rules; Proposed Trade 

Regulation Rule; Notice of Proposed Rulemaking, 

50 FR 598, 602–603 (Jan. 4, 1985).

7 1989 Statement of Basis and Purpose, supra note 

5, 54 FR at 10303.

FEDERAL TRADE COMMISSION

16 CFR Part 456 

[RIN 3084–AA80] 

Ophthalmic Practice Rules

AGENCY: Federal Trade Commission.

ACTION: Final rule.

SUMMARY: The Federal Trade 

Commission (‘‘FTC’’ or ‘‘Commission’’) 

has completed its regulatory review of 

the Ophthalmic Practice Rules 

(‘‘Rules’’), which require, among other 

things, that eye care practitioners 

provide patients with a copy of their 

eyeglass prescription upon completion 

of an eye examination. Pursuant to this 

review, the Commission has determined 

to retain the Rules in their current form. 

This document discusses the comments 

received in response to the 

Commission’s request for public 

comment, analyzes the effect of the 

enactment of the Fairness to Contact 

Lens Consumers Act, 15 U.S.C. 7601–

7610, and announces the Commission’s 

decision to retain the Rules.

EFFECTIVE DATE: February 4, 2004.

FOR FURTHER INFORMATION CONTACT: Kial 

Young, (202) 326–3525, Federal Trade 

Commission, Bureau of Consumer 

Protection, Division of Advertising 

Practices, 601 Pennsylvania Avenue, 

NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

I. Introduction 

As part of its systematic review of its 

Rules and Guides to determine their 

effectiveness and impact, the 

Commission published a request for 

public comment in the Federal Register

on April 3, 1997, seeking comments 

about the overall costs and benefits of 

the Ophthalmic Practice Rules and 

related questions.1 The Commission 

received comments from numerous 

parties, including: (1) Associations 

representing various segments of the 

industry and professions, including the 

American Optometric Association, the 

Opticians Association of America, the 

National Association of Optometrists 

and Opticians, the American Academy 

of Ophthalmology, individual 

professionals, and mail-order sellers of 

contact lenses; (2) state attorneys 

general, state optometry boards, and a 

United States Congressman; and (3) 

consumers.2

In general, the comments primarily 

addressed two broad issues: (1) Whether 

the current Rules, which require the 

release of eyeglass prescriptions to 

patients upon completion of an eye 

examination, should be retained, 

repealed, or modified; and (2) whether 

the Rules’ eyeglass prescription release 

requirement (‘‘eyeglass prescription 

release rule’’) should be extended to 

require the release of contact lens 

prescriptions. 

With respect to the first issue, the 

Commission has determined to retain 

the Rules in their current form. As to the 

second issue, while the Commission’s 

regulatory review was pending, 

Congress enacted and the President 

signed the Fairness to Contact Lens 

Consumers Act, which requires that 

prescribers release contact lens 

prescriptions to their patients. The FTC 

is publishing a Notice of Proposed 

Rulemaking today seeking comment on 

a proposed rule to implement the Act, 

including a contact lens prescription 

release requirement. Accordingly, the 

Commission concludes that it is not 

necessary to address during this 

regulatory review whether to extend the 

Ophthalmic Practice Rules to mandate 

that contact lens prescriptions be 

released. 

This document first describes the 

requirements and the background of the 

current Ophthalmic Practice Rules. It 

then summarizes the comments 

received regarding whether the eyeglass 

prescription release rule should be 

retained, eliminated, or changed, and 

explains the Commission’s 

determination to retain that rule in its 

present form. Finally, this document 

discusses additional issues relating to 

this regulatory review of the Rules. 

II. Description and Background of 

Ophthalmic Practice Rules 

The Ophthalmic Practice Rules 

require an eye care practitioner (an 

optometrist or ophthalmologist) to 

provide a patient, immediately after 

completion of an eye examination, with 

a free copy of his or her eyeglass 

prescription (the ‘‘eyeglass prescription 

release rule’’). The Rules also prohibit 

an eye care practitioner from 

conditioning the availability of an eye 

examination on a requirement that the 

patient agree to purchase ophthalmic 

goods from the practitioner. The Rules 

further prohibit an eye care practitioner 

from making certain disclaimers and 

waivers of liability. 

In promulgating the original Rules in 

1978, the Commission found that many 

consumers were being deterred from 

comparison shopping for eyeglasses 

because eye care practitioners refused to 

release prescriptions, even when 

requested to do so, or charged an 

additional fee for the release of a 

prescription.3 At that time, prohibitions 

and restrictions on advertising of 

ophthalmic goods and services were 

commonplace. Indeed, eye care 

practitioner advertising, especially price 

advertising, was restricted in 49 states, 

either by governmental or private 

regulation.4 Without such advertising, 

consumers generally knew little about 

their options in purchasing eye exams 

and eyeglasses, including that they have 

the option of purchasing them 

separately. The Rules therefore include 

a requirement that eye care practitioners 

automatically release a copy of the 

prescription regardless of whether the 

patient requests it.5

The Commission previously has 

considered modifying the eyeglasses 

prescription release rule. In 1985, the 

agency published a notice of proposed 

rulemaking that invited comments on 

whether the rule should be modified or 

repealed.6 In 1989, the FTC decided to 

retain the rule, because there was still 

significant non-compliance with the 

rule and a continued lack of consumer 

awareness about their ability to obtain 

their prescription and purchase 

eyeglasses separately.7

III. Eyeglass Prescription Release Rule 

A. Summary of Comments 

1. Costs and Benefits of Eyeglass 

Prescription Release Rule 

In connection with the Commission’s 

review of its Ophthalmic Practices 

Rules, the April 1997 Federal Register

Notice requested comments on whether 

the eyeglass prescription release rule 

should be retained, modified, or 

eliminated. Many commenters support 

retention of that requirement, including 

5452 Federal Register / Vol. 69, No. 23 / Wednesday, February 4, 2004 / Rules and Regulations 

8Attorneys General, #118. The comment was 

submitted by the Attorneys General of Alaska, 

Arizona, Arkansas, California, Connecticut, 

Delaware, Florida, Illinois, Iowa, Maryland, 

Michigan, Minnesota, New York, Ohio, 

Pennsylvania, West Virginia and Wisconsin. The 

Attorney General of Nevada subsequently sent a 

letter joining the other states in this comment. 9NAOO, #119.

10OAA, #120. The National Academy of 

Opticianry also filed a comment, #115, stating that 

it supports the positions taken by Opticians 

Association of America. 11OAG, #60. See also Society of Dispensing 

Opticians of Kentucky, #28. Many individual 

opticians filed comments substantially similar to 

the OAG comment. See, e.g., E. Carter, #45; D. 

Drake, #55; All About Vision Center, #56; S. 

Sanford, #62; Oldham’s Opticians, #65; Price and 

Wood Opticians, #72.

12See, e.g., H. Moyer, #9; Optical Fashions, #75; 

Professional Opticians, #31.

13 Illinois Association of Ophthalmology, #66 at 

1–2.

14 1–800 Contacts, #70 at 1.

15Lens Express, #113 at 3–4.

16See, e.g., A. King, #2; C. Bentley, #5; N. Fraby, 

#6; P. Guidoni, #12; J. Ruffino, #14; D. Murphy, #16; 

M. Walker, #17; C. Walker, #18; A. McKinley, #19; 

A. Cantrell, #21; T. Block, #22; B. Madewell, #23; 

T. Yancy, #24; E. Sharp, #43; K. Kinsey, #53.

17See, e.g., NAOO, #119 at 9; OAA, #120 at 4; 

Illinois Association of Ophthalmology, #66 at 2.

18NAOO, #119 at 8–9 (quoting Regina Herzlinger, 

Market-Driven Health Care (1997)).

19Attorneys General, #118, at 2, 6.

20NAOO, #119 at 7–9. Other commenters agreed. 

See, e.g.,1–800 Contacts, #70 at 2.

21See, e.g., Lens Express, #113 at 6; OAA, #120 

at 1; G. Gac, #4 (consumer freedom of choice); D. 

Ingraham, #44 (same); W. Schaap, #3 (same); J. 

Lamet, #1 (price competition); E. Bode, #25 (same); 

F. Bassett, #7 (lack of awareness of right to obtain 

prescription); N. Simonetti, #13 (same); consumer 

#15 (consumer right to prescription); E. Bode, #25 

(same).

22AOA, #111.

23COA, #112, at 1–2.

24Texas Optometry Board, #122.

25AOA, #111 at 1–2; COA, #112 at 4.

26COA, #112 at 7.

27OAA, #120 at 9–10; Lens Express, #113 at 7.

28OAA, #120 at 9–10. The survey asked 

consumers: ‘‘Previous to reading this form were you 

aware of the Prescription Release Rule?’’

29See, e.g., F. Bassett, #7; N. Simonetti, #13; see 

also K. Kinsey, #53 (many consumers, especially 

the elderly, do not know they can shop around).

30OAA, #120 at 1, 9.

31 Id. at 7–8.

32See, e.g., OAA, #120 at 9.

33Lens Express, #113 at 4–5; OAA, #120 at 9. In 

addition, several consumers commented that they 

had not received their eyeglass prescription as 

required by the eyeglass prescription release rule. 

See, e.g., D. Ingraham, #44 (consumer unable to get 

copy of eyeglass prescription); J. Bassett, #7 (eye 

doctor did not release prescription until after he 

purchased eyeglasses; he did not ask); N. Simonetti, 

#13 (consumer has never been given prescription 

and did not ask because he did not know of his 

right to obtain prescription).

34OAA, #120 at 9. OAA did not provide any 

further details about the survey or its methodology.

35Paul Klein, O.D., ‘‘Forcing ODs to Release CL 

Prescription Does No Good,’’ Vision Monday, Apr. 

3, 1995, at 46, cited in Lens Express, #113 Exhibit 

1. 

Commenters raise some additional reasons for 

retaining the rule in its current form. For example, 

the OAA states that if the rule is cut back, many 

small opticians will go out of business. OAA, #120 

at 11. OAA further notes that managed vision care 

and third-party insurance programs have 

encouraged one-stop shopping by locating 

dispensaries and practitioners in close proximity. 

These trends, OAA asserts, have limited 

opportunities for opticians and limited freedom of 

choice for consumers. OAA, #120 at 7–8.

the attorneys general of 18 states (‘‘State 

Attorneys General’’),8 the National 

Association of Optometrists and 

Opticians (‘‘NAOO’’) (a trade 

association whose members include 

many large chain optical firms),9

Opticians Association of America 

(‘‘OAA’’),10 Opticians Association of 

Georgia (‘‘OAG’’),11 individual 

opticians,12 the Illinois Association of 

Ophthalmology,13 and mail-order sellers 

of contact lenses, including 1–800 

Contacts 14 and Lens Express.15 Many 

consumers also filed comments in 

support of the eyeglass prescription 

release rule.16 These commenters 

generally argue that the rule continues 

to benefit consumers by allowing them 

to purchase eyeglasses from sellers other 

than their eye care practitioner, thereby 

increasing competition among eyeglass 

sellers and lowering the price of 

eyeglasses. The comments also state that 

the cost to eye care practitioners of 

providing an eyeglass prescription to 

their patients is minimal.17

For example, the NAOO contends that 

the rule has ‘‘contributed immensely to 

creating a pro-consumer, procompetitive environment in much of the 

eyewear sector today, generating not 

only lower prices for all consumers, but 

enormous product, technological, 

managerial and service innovations as 

well.’’18 Similarly, the State Attorneys 

General said that the rule has provided 

consumers with a wide variety of 

alternative suppliers at varying price 

points and service levels, and has saved 

consumers money.19 Supporters of 

retaining the rule also argue that lower 

prices have resulted in increased 

accessability to eyewear.20 Other 

commenters, including consumers, 

expressed similar views.21

On the other hand, the American 

Optometric Association (‘‘AOA’’),22 the 

California Optometric Association 

(‘‘COA’’),23 the Texas Optometry 

Board,24 and others urge the 

Commission to rescind the eyeglass 

prescription release rule. According to 

these commenters, increased 

competition and advertising in the 

eyecare marketplace now enable 

consumers to shop among a wide 

variety of eyeglass sellers, and have 

made consumers aware of the benefit to 

them of obtaining their eyeglass 

prescriptions.25 These commenters 

further contend that giving a 

prescription to a patient who does not 

want one imposes unnecessary costs on 

eye care practitioners, such as preparing 

unnecessary paperwork and expending 

their time.26

2. Release Upon Request 

The request for public comment also 

asked whether, if the eyeglass 

prescription release rule is retained, the 

Commission should modify the rule to 

require an eye care practitioner to 

release a prescription only if the patient 

requests it, rather than releasing it 

automatically. 

Most commenters who support 

retention of the eyeglass prescription 

release rule also urge the Commission to 

retain the requirement that the 

prescription be released automatically. 

Commenters, such as OAA and Lens 

Express, assert that many consumers 

still are not aware that they can obtain 

their eyeglass prescription.27 OAA cites 

its 1997 survey showing that 68.5% of 

consumers are not aware of the 

Commission’s eyeglass prescription 

release rule.28 In addition, some 

consumers filed comments stating that 

they did not request their eyeglass 

prescription from their eye care 

practitioners because they did not know 

they were entitled it.29

Commenters such as OAA also assert 

that, absent the automatic release 

requirement, consumers may be 

intimidated or coerced by their eye care 

practitioner into not requesting their 

prescription.30 OAA further asserts that 

more ophthalmologists are now 

dispensing eyewear, and that many 

consumers are intimidated if a doctor 

says that you should buy eyewear from 

him or her.31

Several commenters also contend that 

there is still significant non-compliance 

with the rule by eye care practitioners,32

especially the automatic release 

requirement.33 OAA cites a survey 

conducted in March 1997 that showed, 

according to OAA, that 29.3% of 

patients did not receive their 

prescriptions and 10.1% were refused 

their prescriptions when they requested 

them.34 In addition, anecdotal evidence 

in the record claims that the 

overwhelming majority of eye doctors 

who dispense eyewear do not 

automatically give patients their 

eyeglass prescriptions.35

By contrast, commenters who argue 

for repeal of the eyeglass prescription 

release rule generally also urge the 

agency to adopt an ‘‘upon request’’

standard if the rule is retained. 

According to AOA, many, if not most, 

patients want to purchase their 

eyeglasses from the eye care 

practitioners providing their eye 

Federal Register / Vol. 69, No. 23 / Wednesday, February 4, 2004 / Rules and Regulations 5453

36The Illinois Association of Ophthalmology, 

while supporting the rule as is, states that most 

consumers are aware that they are entitled to 

receive their eyeglass prescriptions. Illinois 

Association of Ophthalmology, #66 at 2.

37AOA, #111 at 2; COA, #112 at 2–3, 5.

38SEE, #82. SEE did not submit, however, and the 

record does not contain, any evidence indicating 

that automatic release of eyeglass prescriptions in 

fact leads consumers to fill their prescriptions 

unnecessarily, or otherwise causes consumer injury.

39See, e.g., COA, #112 at 3 (California); Texas 

Optometry Board, #122. 40OAA, #120 at 5–6.

41The provision of the Oklahoma regulation that, 

according to OAA, violates the Rules’ disclaimer 

provision, states that ‘‘the examining optometrist or 

physician shall not be responsible for the accuracy 

of the optical materials furnished by another 

person.’’ As discussed in Part III.C.1., infra, this 

regulation does not conflict with any portion of the 

Commission’s Rules.

42The Federal Register Notice further specifically 

asked what problems, if any, the current 

requirement, or its interpretation, has caused, and 

how any such problems could be remedied.

43 1978 Statement of Basis and Purpose, supra

note 3, 43 FR at 23998.

examination, or from an affiliated 

optical chain. Commenters supporting 

this revision of the rule contend that 

patients generally are aware of their 

right to obtain their eyeglass 

prescriptions,36 and that those who 

want their prescriptions routinely ask 

for and receive them. As such, these 

commenters argue, the automatic release 

of eyeglass prescriptions to all patients, 

including those who do not want them, 

is inefficient and wasteful.37

One commenter, the Society for 

Excellence in Eyecare (‘‘SEE’’), a 

professional society of clinical 

ophthalmic surgeons, urged the 

Commission to modify the rule to 

require physicians to provide an 

eyeglass prescription only when 

appropriate in the physician’s opinion 

or at the request of the patient. SEE 

suggests that many patients do not need 

a new prescription each time they visit 

an eye doctor because their prescription 

has not changed. According to SEE, 

giving patients a prescription under 

such circumstances probably leads 

many patients to believe that the 

prescription must be filled.38

3. Overlap or Conflict With Other Laws

The request for public comment also 

asked for comments on whether the 

Ophthalmic Practice Rules overlap or 

conflict with other federal, state, or local 

laws or regulations. Several commenters 

respond that the eyeglass prescription 

release rule overlaps with or duplicates 

laws in some states, such as California 

and Texas, which already require the 

release of eyeglass prescriptions.39

These commenters state that, at least as 

to those particular states, the existence 

of the state law makes the federal 

requirement unnecessary. OAA 

comments that optometric regulations in 

seven states conflict with the eyeglass 

prescription release rule’s automatic 

release requirement by requiring the 

release of eyeglass prescriptions only 

upon the request of the patient. OAA 

further states that some of these state 

regulations make the prescription 

release contingent upon a patient’s 

fulfillment of all financial obligations. 

Finally, OAA states that Oklahoma’s 

optometric regulations are inconsistent 

with the disclaimer provisions in the 

Rules.40

B. Commission’s Determinations 

Regarding Eyeglass Prescription Release 

Rule 

The Commission has determined not 

to initiate a proceeding to repeal the 

eyeglass prescription release 

requirement. Some eye care 

practitioners may release prescriptions 

upon request in the absence of a federal 

release requirement. The evidence in 

the record, however, suggests that some 

eye care practitioners continue to refuse 

to release eyeglass prescriptions, even 

though this conduct has been unlawful 

under the Rules for nearly twenty-five 

years. If the eyeglass prescription 

release rule were eliminated, additional 

eye care practitioners might refuse to 

release eyeglass prescriptions so that 

they could receive the economic 

benefits from inducing patients to 

purchase both an eye exam and 

eyeglasses from them. Because release 

might not occur in the absence of a 

federal release requirement and because 

release of prescriptions enhances 

consumer choice at minimal compliance 

cost to eye care practitioners, the FTC 

has decided to retain the eyeglass 

prescription release rule. 

The Commission also has decided not 

to commence a proceeding to modify 

the rule so that eye care practitioners are 

only required to release eyeglass 

prescriptions upon request. The 

comments submitted indicate that some 

consumers still are not aware of their 

right under the rule to obtain their 

eyeglass prescription from their eye care 

practitioner. In the absence of automatic 

release, these consumers may not know 

to ask for their prescription, or their eye 

care practitioner may discourage them 

from requesting it. With automatic 

release, these consumers will receive 

their prescription so that they can 

comparison shop among eyeglass sellers 

if they choose to do so. The record also 

shows that the burden on eye care 

practitioners in releasing prescriptions 

is minimal. Moreover, the recently 

enacted Fairness to Contact Lens 

Consumers Act provides for automatic 

release of contact lens prescriptions, 

and thus maintaining automatic release 

of eyeglass prescriptions provides 

consistency between the two release 

requirements. In light of all these 

factors, the FTC declines to start a 

proceeding to amend the rule to require 

release of eyeglass prescriptions only 

upon request. 

Finally, the Commission concludes 

that the eyeglass prescription release 

rule does not conflict with other laws. 

The rule does not conflict with the 

optometric regulations cited by OAA, 

because eye care practitioners can 

comply with both the federal and the 

state requirements. The state laws cited 

by OAA require eye care practitioners to 

release eyeglass prescriptions upon 

request. These laws do not prohibit eye 

care practitioners from automatically 

releasing eyeglass prescriptions, as 

required by the rule. Moreover, there is 

no information in the record that any 

states are interpreting their laws in such 

a way as to conflict with application of 

the federal requirements.41

C. Other Issues Related to Ophthalmic 

Practice Rules 

1. Waivers and Disclaimers (16 CFR 

456.2(d)) 

The request for public comment on 

the Ophthalmic Practice Rules also 

asked whether any changes should be 

made to the prohibition in Section 

456.2(d) against the use of certain 

waivers or disclaimers of liability by eye 

care practitioners, or to the 

Commission’s interpretation of that 

provision.42

Section 456.2(d) prohibits eye care 

practitioners from placing on an 

eyeglass prescription, requiring a 

patient to sign, or delivering to a 

patient, any waiver or disclaimer of 

liability for the accuracy of the eye 

examination or the accuracy of the 

ophthalmic goods and services 

dispensed by another seller. Section 

456.2(d) was originally promulgated 

because disclaimers ‘‘may have the 

effect of making consumers erroneously 

believe that other dispensers are not 

qualified to dispense their eyeglasses 

and discouraging consumers from 

shopping around.’’ 43

Section 456.4 states that eye care 

practitioners are not liable under the 

Rules for the ophthalmic goods and 

services that another seller has 

dispensed. The FTC has interpreted 

Section 456.2(d) consistent with Section 

456.4 to allow eye care practitioners to 

make truthful and non-misleading 

statements on prescriptions that sellers 

of ophthalmic goods and services are 

5454 Federal Register / Vol. 69, No. 23 / Wednesday, February 4, 2004 / Rules and Regulations 

44 1989 Statement of Basis and Purpose, supra

note 5, 54 FR at 10299. The Commission’s 

interpretation of this provision originally was set 

forth at 43 FR 46296–46297 (Oct. 6, 1978). 45COA, #112 at 6. 46COA, #112 at 6. 47OAA, #120 at 13. OAA does not address the 

point made by the AOA and COA.

48See, e.g., OAG, #60; E. Carter, #45; D. Drake, 

#55; All About Vision Center, #56; Price and Wood 

Opticians, #72.

49OAA, #120 at 3–4.

50The Commission notes that Congress has 

established a minimum expiration date of one year 

for contact lens prescriptions, with an exception for 

cases in which medical reasons warrant a shorter 

time period. See 15 U.S.C. 7604. However, different 

considerations may apply to contact lenses than to 

eyeglasses, and, in any event, the record in this 

regulatory review does not indicate consumer 

injury that would support a rulemaking proceeding 

by the Commission to set an expiration date for 

eyeglass prescriptions.

responsible for harm caused by the 

products they sell. For example, an eye 

care practitioner may state on a 

prescription that ‘‘the person who 

dispenses your eyeglasses is responsible 

for their accuracy.’’ The eye care 

practitioner, however, may not include 

a waiver or disclaimer of its own 

liability along with such a statement.44

COA requests that the Commission 

amend the Rules to allow disclaimers of 

liability for the accuracy of the 

ophthalmic goods and services 

dispensed by another seller.45 COA 

contends that it is unlikely under state 

tort law that an eye care practitioner 

would be held liable for the negligence 

or breach of warranty of an independent 

third party who provided ophthalmic 

goods to the practitioner’s patients. As 

such, COA asserts that a disclaimer of 

liability provides truthful and useful 

information to the patient, alerting the 

consumer to the possibility of a dispute 

concerning such liability.46 The AOA 

similarly requests that the Rule be 

amended to permit eye care 

practitioners to include on prescriptions 

truthful and non-misleading disclaimers 

of liability for the actions of sellers of 

ophthalmic goods and services.

OAA also argues that the Rules 

should be amended to require that eye 

care practitioners affirmatively state that 

they are liable for errors in prescriptions 

even if another seller, such as an 

optician, fills the prescription. OAA 

believes that in the absence of such a 

statement, some eye care practitioners 

may mislead their patients into 

believing that the eye care practitioner 

will not be liable in these 

circumstances.47 The OAG and several 

opticians filed similar comments, 

stating that eye care practitioners often 

include statements on prescriptions 

implying that if a seller other than the 

eye care practitioner fills the 

prescription, the goods or services sold 

may be inferior. These commenters 

want the Rules revised to limit the 

statements made on prescriptions to 

prevent statements that imply that the 

goods or services that non-eye care 

practitioners sell are inferior.48

The Commission has determined to 

retain Section 456.2(d) in its current 

form. No evidence was submitted that 

indicates that its restrictions on the use 

of disclaimers and waivers are no longer 

needed to prevent harm to consumers. 

In addition, because of its long-standing 

and consistent interpretation that the 

Rules allow eye care practitioners to 

make truthful and non-misleading 

statements that other sellers are liable 

for the harm their own products cause, 

it is not necessary to amend the Rules 

to explicitly permit such statements. 

Finally, the Commission believes that 

case-by-case law enforcement under 

section 5 of the FTC Act is a more 

effective means than rulemaking of 

addressing any false or misleading 

statements by eye care practitioners on 

prescriptions as to their liability for 

prescription errors or the quality of 

other sellers’ goods and services. 

2. Other Proposals 

The OAA also recommends that the 

Commission amend the Ophthalmic 

Practice Rules to prohibit the use of 

expiration dates for eyeglass 

prescriptions, with exceptions for 

specific, well-defined medical reasons. 

OAA states that practitioners currently 

use arbitrarily determined and 

unjustifiable expiration dates, such as 

six months or one year, to deter 

consumers from using their eyeglass 

prescriptions.49

The Commission declines to initiate a 

proceeding seeking to amend the Rules 

to set expiration dates for eyeglass 

prescriptions. As explained above, the 

purpose of the Rules is to prohibit acts 

and practices that deter consumers from 

comparison shopping for eyeglasses. 

There is no evidence in the record that 

eye care practitioners are using 

expiration dates as a means of impeding 

the ability of consumers to purchase 

eyeglasses from other sellers or 

otherwise causing consumer injury. In 

the absence of such evidence, the 

Commission has decided not to consider 

setting expiration dates for eyeglass 

prescriptions.50

IV. Conclusion 

For the foregoing reasons, the 

Commission has determined to retain 

the Ophthalmic Practices Rules in their 

current form.

List of Subjects in 16 CFR Part 456 

Advertising, Medical devices, 

Ophthalmic goods and services, Trade 

practices.

Authority: 15 U.S.C. 41–58.

By direction of the Commission. 

Donald S. Clark, 

Secretary.

[FR Doc. 04–2234 Filed 2–3–04; 8:45 am] 

BILLING CODE 6750–01–P