Clinton DeWolfe, O.D.

Chairman Texas Optometry Board P. 0. Box 988 Blanco, Texas 78606 Opinion No. JM-1081
Re: Whether the Texas Optometry Act prohibits an optician from giving another free pair of spectacles, eyeglasses or contact lenses to aperson who purchases a firstpair (RQ-1667)
Dear Dr. DeWolfe:
You inform us that opticians andnational laboratories have recently offered a free pair ofeyeglasses or contact lenses topurchasers ofa firstpair of glasses or contact lenses. You askwhether these "buy-one, get-one-free" sales violate section 5.06 of the Texas Optometry Act and a board rule based on that section. Section 5.06 provides as follows:
It shall beunlawful for any person in

this state to give, or cause tobe given, deliver, or cause to be delivered, in any manner whatsoever, any spectacles or eyeglasses, separate or together, as a prize orpremium, or as an inducement to sell anybook, paper, magazine or any work of literature orart, or anv itemofmerchandise whatsoever. (Emphasis added.)
V.T.C.S. art. 4552-5.06. A person who violates any provision of the Texas Optometry Act isguilty of a misdemeanor punishable by a fine, confinement inthe county jail, or both. V.T.C.S. art. 4552-5.19.
An Optometry Board rule provides that "noperson in this state shall give . . .any contact lenses as aprize or premium, or as an inducement to sell any book, paper, magazine, or anywork of literature or art, or any item of merchandise whatsoever." 22T.A.C. 5273.3. The rule does not state that it isunlawful togive contact lenses as a premium to sell an item ofmerchandise.

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You ask whether section 5.06 and board rule 273.3 prohibit giving a second pair of spectacles, eyeglasses, or contact lenses to aperson who purchases a first pair. If we conclude that this practice is prohibited, you ask whether itwould also prohibit agift of free frames or free lenses as an inducement to sell eyeglasses, and a sale of eyeglasses, frames, or lenses for one cent or another insignificant amount. Article 4552-1.02, V.T.C.S., provides inpart:
The 'practice ofoptometry' isdefined to be the employment of objective or subjective means . . .forthe purpose of ascertaining andmeasuring the powers ofvision of the human eye, and fitting lenses orprisms to correct or remedy any defect or abnormal condition ofvision. . .T
V.T.C.S. art. 4552-1.02(l).
A "dispensing optician" or *'opthalmic dispenser" is defined as Itaperson not licensed as an optometrist or physician who sells or delivers to the consumer fabricated and finished spectacle lenses, frames, contact lenses, or other opthalmic devices prescribed by an optometrist or physician." V.T.C.S. art. 4552-1.02(5). See V.T.C.S. art. 4552-1.02(3)(A) (ophthalmic dispenser isnotprohibited from making facialmeasurements to dispense or adapt ophthalmic prescriptions or lenses, products and accessories). 4E also Williamson v. Lee Ontical of Oklahoma, 348U.S. 486 (1955) (anoptician **iS** qualified to grind lenses, fili prescriptions, and fit frames).
A l%wo-for-onel~ sale ofeyeglasses by a dispensing optician maymerely be apricing policy which gives avolume discount. Wewill not, however, dealwith your question in terms ofpricing policies that may be adopted by persons who sell prescription glasses. Instead, wewill consider whether apair of spectacles, eyeglasses, or contact lenses isan "item ofmerchandise" within section 5.06 of the act. Article 4552 does notdefine the term "merchandise," but ituses this word inother provisions. When the same word isused more than once ina statute, itwill be given the samemeaning, unless adifferent intent is indicated. Brown v. Darden, 50 S.W.2d 261 (Tex. 1932). Article 4552-5.17, V.T.C.S., provides inpart:

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Nothing inthisAct shall be construed to apply to persons who sell ready-to-wear spectacles and eyeglasses asmerchandise at retail . . . . (Emphasis added.)
V.T.C.S. art. 4552-5.17. The definition of the "practice of optometry" includes a similar provision on selling ready-towear spectacles or eyeglasses asmerchandise. V.T.C.S. art. 4552-1.02(l).
These provisions apply to the sale of mass-produced items like non-prescription sunglasses and eyeglasses that are essentially magnifying glasses ina frame. These items are not custom-made to correct the wearer's defects in vision and no special order isnecessary tobuy them.1 t'Merchandisel'

has been broadly defined as "all goods which merchants usually buy and sell,whether at wholesale or retail; wares and commodities such asare ordinarily the objects of trade and commerce." Black's Law Dictionary 890 (5thed. 1979); see also Hein v. O'Connor, 15 S.W. 414 (Tex. Ct.App. 1891). A "merchantl' isa "personwho purchases goods at wholesale for resale at retail.'! Black's Law Dictionary, sunra. "Merchandise" has also been defined more narrowly to exclude an itemwhich was specially prepared or modified according to the purchaser's specifications. A Missouri court has held that acontract to prepare and set up a monument ina cemetery was acontract for labor and not a contract for "goods, wares, and merchandise" within the state's statute of frauds. Carrollton Monument Co. v. Gearv, 240 S.W. 506 (MO.Ct.App. 1922).

1. A prior version of section 5.06 describes in some detail the sale of eyeglasses asmerchandise. A 1925 bill amending the statute regulating optometrists provided that "[plersons who sell spectacles and eye-glasses as merchandise" meant "merchants who donot practice optometry, or offer to practice optometry, but who sell spectacles or eye-glasses asmerchandise, after they have been selected by their customers alone without the aid from the merchant

. . .other than the particular and complete and. ready-towear spectacles or eye-glasses selected by the customer in person from trays- or other containers. . . .'IActs. 1925, 39th Leg., ch. 31, 5 13-c, at 151.

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Texas courts have also recognized this distinction in defining "merchandise*' under the Bulk Sales Law, which applies to the sale inbulk of a stock ofmerchandise, or merchandise and fixtures pertaining to conducting said business otherwise than inthe ordinary course of trade.2 Hobart MFG. Co.v. Jovce &Mitchell, 4S.W.2d 185, 187 (Tex. Civ.App. - FortWorth 1928, nowrit). In Axtell Co. v. Word -, 29 S.W.2d 421 (Tax.Civ.App. -Austin 1930, nowrit), the court stated that Texas courts have construed the Bulk Sales Act as not applying to "stock on hand used as incidental to or in connection with labor or mechanical skill." The court further stated as follows:

Thewords, 'stock ofmerchandise,* asused in the statute have been uniformly construed by our courts to be used in the common and ordinary acceptation of those terms, and to mean the goods, wares, or chattels which a merchant holds for sale at retail forprofit, andwhich are constantly going out of the store . . .andbeing replaced by other goods without any appreciable change of character by the labor ormechanical skill ofpurchaser [i.e.,of the person who purchased the goods for resale].
29 S.W.Zd 421.
Thus ltmerchandisell in some statutes does not include itemswhich must be changed and adapted to the customer's individual requirements. We believe that the Texas Optometry Act uses "merchandise" inthis sense. In section 5.17, "ready-to-wear spectacles and eyeglasses" sold "as merchandise at retail" are mass-produced goods not adapted to the customer's vision. This language does not include eyeglasses and spectacles that may only be sold on a prescription. The same definition of "merchandise" also applies to theprohibition inarticle 4552-5.06, V.T.C.S., against giving away eyeglasses asan inducement to sell a

2. The Bulk Sales Act has been repealed and replaced by theUniform Commercial Code --Bulk Transfers, Bus. & Corn.Code ch. 6. We have cited cases which construe the Bulk Sales Law to illustrate a possible definition of "merchandise." We express no opinion onwhether the frames and lenses which adispensing optician adapts in accordance with written prescriptions would be "merchandise" within the Bulk Transfers provisions.

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-. book, paper, magazine, work of literature or art, "or any

item ofmerchandise." Article 4552-5.06 does not prohibit adispensing optician or ophthalmic dispenser from giving away a second pair ofprescription eyeglasses as ameans of motivating people tohave him fill theprescription for the firstpair.
Two other provisions of the Texas Optometry Act show that a "mercantile establishment" does not include the business premises of a dispensing optician. Article 4552-5.14 regulates thebusiness **practices** of an **Optometrist** "who leases space from and practices optometry on the premises of, a mercantile establishment.1' V.T.C.S. art. 4552-5.14(a). See senerally Attorney General Opinion O-1588 (1939) (practice by optometrists in jewelry stores). It requires the leased space tobe separated from space used by other occupants of the premises andprohibits operation of the optometrist's practice as adepartment of themercantile establishment. V.T.C.S. art. 4552-5.14(d)-(g). Article 4552-5.15, V.T.C.S., governs thebusiness relationships of optometrists with dispensing opticians. It permits a dispensing optician to lease space to an optometrist. It also provides for complete separation between the premises of an optometrist and a dispensing optician ifboth occupy space inthe same building. See Attorney General Opinion MW-292 (1981). Both provisions dealwith the leasing ofpremises and with separating an optometrist's business from other types ofbusiness conducted inthe same building. The leqislature's adoption of separate provisions to govern the optometrist's relationship to "mercantile establishments" and to "dispensing opticians" indicates that a dispensing optician does not operate a tUmercantile establishment." These provisions carry out and support the distinction between "merchandise" and prescription glasses and contact lenses which we have found inarticle 4552-5.06, V.T.C.S. Moreover, this situation appears tobe an appropriate case for applying the maxim of ejusdem qeneris. Where general words follow specific words ina statutory enumeration, the general words are construed to embrace only objects similar innature to those objects enumerated by the preceding specific words. Emolovees' Casualtv Co. v. Stewart Abstract Co., 17S.W.2d 781 (Tex.Comm'n App. 1929).
The firstversion of article 4552-5.06 was adopted in 1925. Acts 1925, 39th Leg., ch. 31,at 149. We areunaware of any history evidencing the legislature's intent in adopting this provision, although its language suggests that

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itwas directed at apractice ofgiving away eyeglasses with thepurchase of reading material. It ishowever reasonable to assume that the legislature adopted this provision to protect members of the public from receiving eyeglasses with lenses that would not correct their defects invision. The provision oftwo pairs ofprescription glasses for the price of one does notviolate this policy. Since we have concluded that "buy-one, get-one-free" sales do not violate article 4552-5.06, V.T.C.S., we need not answer your other questions, which are contingent on a contrary determination.
SUMMARY

The Texas Optometry Act does not prohibit adispensing optician or anophthalmic dispenser from giving a second free pair of prescription spectacles, eyeglasses, or contact lenses to aperson who purchases a first pair. Article 4552-5.06, V.T.C.S., which prohibits anyperson fromgiving spectacles or eyeglasses as an inducement to sell "any book, paper, magazine, or anywork of literature or art, or any item of merchandise," does not prohibit "buy-one, get-one-free" sales of prescription glasses by dispensing opticians or ophthalmic dispensers.

WARY KELLER First Assistant Attorney General JIM MATTOX Attorney General of Texas

LOUMCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared by Susan L.Garrison Assistant Attorney General

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