29–006

108TH CONGRESS REPORT " HOUSE OF REPRESENTATIVES ! 1st Session 108–318

FAIRNESS TO CONTACT LENS CONSUMERS ACT 

OCTOBER 15, 2003.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. TAUZIN, from the Committee on Energy and Commerce, 

submitted the following 

R E P O R T 

[To accompany H.R. 3140] 

[Including cost estimate of the Congressional Budget Office]

The Committee on Energy and Commerce, to whom was referred 

the bill (H.R. 3140) to provide for availability of contact lens prescriptions to patients, and for other purposes, having considered 

the same, report favorably thereon with an amendment and recommend that the bill as amended do pass.

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 4

Background and Need for Legislation .................................................................... 4

Hearings ................................................................................................................... 5

Committee Consideration ........................................................................................ 6

Committee Votes ...................................................................................................... 6

Committee Oversight Findings ............................................................................... 6

Statement of General Performance Goals and Objectives .................................... 6

New Budget Authority, Entitlement Authority, and Tax Expenditures ............. 6

Committee Cost Estimate ....................................................................................... 6

Congressional Budget Office Estimate ................................................................... 6

Federal Mandates Statement ................................................................................. 8

Advisory Committee Statement .............................................................................. 8

Constitutional Authority Statement ...................................................................... 8

Applicability to Legislative Branch ........................................................................ 8

Section-by-Section Analysis of the Legislation ...................................................... 9

The amendment is as follows: 

Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Fairness to Contact Lens Consumers Act’’. 

2

SEC. 2. AVAILABILITY OF CONTACT LENS PRESCRIPTIONS TO PATIENTS. 

(a) IN GENERAL.—When a prescriber completes a contact lens fitting, the prescriber—

(1) whether or not requested by the patient, shall provide to the patient a 

copy of the contact lens prescription; and 

(2) shall, as directed by any person designated to act on behalf of the patient, 

provide or verify the contact lens prescription by electronic or other means. 

(b) LIMITATIONS.—A prescriber may not—

(1) require purchase of contact lenses from the prescriber or from another person as a condition of providing a copy of a prescription under subsection (a)(1) 

or (a)(2) or verification of a prescription under subsection (a)(2); 

(2) require payment in addition to, or as part of, the fee for an eye examination, fitting, and evaluation as a condition of providing a copy of a prescription 

under subsection (a)(1) or (a)(2) or verification of a prescription under subsection (a)(2); or 

(3) require the patient to sign a waiver or release as a condition of verifying 

or releasing a prescription. 

SEC. 3. IMMEDIATE PAYMENT OF FEES IN LIMITED CIRCUMSTANCES. 

A prescriber may require payment of fees for an eye examination, fitting, and 

evaluation before the release of a contact lens prescription, but only if the prescriber 

requires immediate payment in the case of an examination that reveals no requirement for ophthalmic goods. For purposes of the preceding sentence, presentation of 

proof of insurance coverage for that service shall be deemed to be a payment. 

SEC. 4. PRESCRIBER VERIFICATION. 

(a) PRESCRIPTION REQUIREMENT.—A seller may sell contact lenses only in accordance with a contact lens prescription for the patient that is—

(1) presented to the seller by the patient or prescriber directly or by facsimile; 

or 

(2) verified by direct communication. 

(b) RECORD REQUIREMENT.—A seller shall maintain a record of all direct communications referred to in subsection (a). 

(c) INFORMATION.—When seeking verification of a contact lens prescription, a seller shall provide the prescriber with the following information: 

(1) Patient’s full name and address. 

(2) Contact lens power, manufacturer, base curve or appropriate designation, 

and diameter when appropriate. 

(3) Quantity of lenses ordered. 

(4) Date of patient request. 

(5) Date and time of verification request. 

(6) Name of contact person at seller’s company, including facsimile and telephone number. 

(d) VERIFICATION EVENTS.—A prescription is verified under this Act only if one 

of the following occurs: 

(1) The prescriber confirms the prescription is accurate by direct communication with the seller. 

(2) The prescriber informs the seller that the prescription is inaccurate and 

provides the accurate prescription. 

(3) The prescriber fails to communicate with the seller within 8 business 

hours, or a similar time as defined by the Federal Trade Commission, after receiving from the seller the information described in subsection (c). 

(e) INVALID PRESCRIPTION.—If a prescriber informs a seller before the deadline 

under subsection (d)(3) that the contact lens prescription is inaccurate, expired, or 

otherwise invalid, the seller shall not fill the prescription. The prescriber shall specify the basis for the inaccuracy or invalidity of the prescription. If the prescription 

communicated by the seller to the prescriber is inaccurate, the prescriber shall correct it. 

(f) NO ALTERATION.—A seller may not alter a contact lens prescription. Notwithstanding the preceding sentence, if the same contact lens is manufactured by the 

same company and sold under multiple labels to individual providers, the seller may 

fill the prescription with a contact lens manufactured by that company under another label. 

(g) DIRECT COMMUNICATION.—As used in this section, the term ‘‘direct communication’’ includes communication by telephone, facsimile, or electronic mail. 

SEC. 5. EXPIRATION OF CONTACT LENS PRESCRIPTIONS. 

(a) IN GENERAL.—A contact lens prescription shall expire—

(1) on the date specified by the law of the State in which the prescription was 

written, if that date is one year or more after the issue date of the prescription; 

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(2) not less than one year after the issue date of the prescription if such State 

law specifies no date or a date that is less than one year after the issue date 

of the prescription; or 

(3) notwithstanding paragraphs (1) and (2), on the date specified by the prescriber, if that date is based on the medical judgment of the prescriber with respect to the ocular health of the patient. 

(b) SPECIAL RULES FOR PRESCRIPTIONS OF LESS THAN 1 YEAR.—If a prescription 

expires in less than 1 year, the reasons for the judgment referred to in subsection 

(a)(3) shall be documented in the patient’s medical record. In no circumstance shall 

the prescription expiration date be less than the period of time recommended by the 

prescriber for a reexamination of the patient that is medically necessary. 

(c) DEFINITION.—As used in this section, the term ‘‘issue date’’ means the date on 

which the patient receives a copy of the prescription. 

SEC. 6. CONTENT OF ADVERTISEMENTS AND OTHER REPRESENTATIONS. 

Any person that engages in the manufacture, processing, assembly, sale, offering 

for sale, or distribution of contact lenses may not represent, by advertisement, sales 

presentation, or otherwise, that contact lenses may be obtained without a prescription. 

SEC. 7. PROHIBITION OF CERTAIN WAIVERS. 

A prescriber may not place on the prescription, or require the patient to sign, or 

deliver to the patient a form or notice waiving or disclaiming the liability or responsibility of the prescriber for the accuracy of the eye examination. The preceding sentence does not impose liability on a prescriber for the ophthalmic goods and services 

dispensed by another seller pursuant to the prescriber’s correctly verified prescription. 

SEC. 8. RULEMAKING BY FEDERAL TRADE COMMISSION. 

The Federal Trade Commission shall prescribe rules pursuant to section 18 of the 

Federal Trade Commission Act (15 U.S.C. 57a) to carry out this Act. Rules so prescribed shall be exempt from the requirements of the Magnuson-Moss Warranty—

Federal Trade Commission Improvement Act (15 U.S.C. 2301 et seq.). Any such regulations shall be issued in accordance with section 553 of title 5, United States 

Code. The first rules under this section shall take effect not later than 180 days 

after the effective date of this Act. 

SEC. 9. VIOLATIONS. 

(a) IN GENERAL.—Any violation of this Act or the rules required under section 8 

shall be treated as a violation of a rule under section 18 of the Federal Trade Commission Act (15 U.S.C. 57a) regarding unfair or deceptive acts or practices. 

(b) ACTIONS BY THE COMMISSION.—The Federal Trade Commission shall enforce 

this Act in the same manner, by the same means, and with the same jurisdiction, 

powers, and duties as though all applicable terms and provisions of the Federal 

Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a 

part of this Act. 

SEC. 10. STUDY AND REPORT. 

(a) STUDY.—The Federal Trade Commission shall undertake a study to examine 

the strength of competition in the sale of prescription contact lenses. The study shall 

include an examination of the following issues: 

(1) Incidence of exclusive relationships between prescribers or sellers and contact lens manufacturers and the impact of such relationships on competition. 

(2) Difference between online and offline sellers of contact lenses, including 

price, access, and availability. 

(3) Incidence, if any, of contact lens prescriptions that specify brand name or 

custom labeled contact lenses, the reasons for the incidence, and the effect on 

consumers and competition. 

(4) The impact of the Federal Trade Commission eyeglasses rule (16 C.F.R. 

456 et seq.) on competition, the nature of the enforcement of the rule, and how 

such enforcement has impacted competition. 

(5) Any other issue that has an impact on competition in the sale of prescription contact lenses. 

(b) REPORT.—Not later than 12 months after the effective date of this Act, the 

Chairman of the Federal Trade Commission shall submit to the Congress a report 

of the study required by subsection (a). 

SEC. 11. DEFINITIONS. 

As used in this Act: 

(1) CONTACT LENS FITTING.—The term ‘‘contact lens fitting’’ means the process 

that begins after the initial eye examination and ends when a successful fit has 

4

been achieved or, in the case of a renewal prescription, ends when the prescriber determines that no change in prescription is required, and such term 

may include—

(A) an examination to determine lens specifications; 

(B) except in the case of a renewal of a prescription, an initial evaluation 

of the fit of the lens on the eye; and 

(C) medically necessary follow up examinations. 

(2) PRESCRIBER.—The term ‘‘prescriber’’ means, with respect to contact lens 

prescriptions, an ophthalmologist, optometrist, or other person permitted under 

State law to issue prescriptions for contact lenses in compliance with any applicable requirements established by the Food and Drug Administration. 

(3) CONTACT LENS PRESCRIPTION.—The term ‘‘contact lens prescription’’ means 

a prescription, issued in accordance with State and Federal law, that contains 

sufficient information for the complete and accurate filling of a prescription, including the following: 

(A) Name of the patient. 

(B) Date of examination. 

(C) Issue date and expiration date of prescription. 

(D) Name, postal address, telephone number, and facsimile telephone 

number of prescriber. 

(E) Power, material or manufacturer or both. 

(F) Base curve or appropriate designation. 

(G) Diameter, when appropriate. 

(H) In the case of a private label contact lens, name of manufacturer, 

trade name of private label brand, and, if applicable, trade name of equivalent brand name. 

SEC. 12. EFFECTIVE DATE. 

This Act shall take effect 60 days after the date of the enactment of this Act.

PURPOSE AND SUMMARY

The purpose of H.R. 3140 is to provide for the availability of contact lens prescriptions to patients, and for other purposes. 

BACKGROUND AND NEED FOR LEGISLATION

In the past ten years, there has been tremendous growth in the 

contact lens business. As the business of contact lenses has grown, 

so have the issues surrounding prescription release. The practice of 

optometrists withholding the prescription has limited the consumer’s ability to shop for the best price and has impacted competition. 

A consumer’s right to his or her eyeglass prescription was mandated by a 1978 Federal Trade Commission (FTC) regulation. As 

a result of that regulation, there is significantly more competition, 

better service, and lower prices for eyeglasses. Contact lenses were 

not included in that regulation because, at that time, contact lenses 

were an emerging technology. Hard lenses were predominant and 

were custom made for each individual. Today, although 36 million 

Americans wear contact lenses, and approximately 85 percent of all 

contact lens wearers wear mass-produced soft contact lenses, consumers still do not have the right to their contact lens prescription 

under federal law. H.R. 3140 gives consumers that right. 

The consumer’s right to a copy of their contact lens prescription 

means nothing unless consumers can fill that prescription at the 

business of their choice. Consumers are now offered a myriad of 

competitive options to fill contact lens prescriptions from the optometrist’s office, to third party sellers like pharmacies, department 

stores, and Internet or mail order outlets. However, despite the 

range of options, consumers continue to face a difficult time getting 

prescriptions filled by alternative third party sellers due to prescription verification obstacles. 

5

Unlike medical doctors who are prohibited from selling the drugs 

they prescribe, eye doctors and optometrists (‘‘doctors’’) are able to 

fill the contact lens prescriptions they write. This sets up an inherent conflict of interest because third party sellers are forced to compete for the sale of lenses with the individual who is writing the 

prescription. 

A number of states have established laws dealing with release of 

contact lens prescriptions. Nearly all of these states have mandated 

the right of the consumer to their prescription, but states have 

taken different positions on how and when the prescription can be 

verified and filled. 

There are two kinds of verification systems—active and passive. 

An active verification system requires a third party seller to receive 

actual verification of the contact lens prescription by the doctor before it can be filled. If a doctor fails, intentionally or not, to call 

the third party seller to verify, the prescription cannot be filled. 

This creates a system that requires third party sellers to ask permission of their competitor to make a sale. Third party sellers 

argue they do not receive the verification needed to fill a prescription, which effectively eliminates them from the market, and prevents consumers from shopping around for lower prices and the 

most convenient service. 

The alternative system is passive verification, which allows the 

third party seller to call the doctor to verify a prescription and if 

the doctor does not call back within a certain period of time, the 

prescription can be filled. H.R. 3140 adopts a passive verification 

system in order to best serve the consumer. The Subcommittee on 

Commerce, Trade, and Consumer Protection heard testimony from 

consumers and businesses of the unusually high number of consumer complaints in states that rely on active verification schemes. 

A passive verification system ensures that consumers are not 

caught in the competitive tug-of-war between doctors and third 

party sellers for the sale of contact lenses. 

H.R. 3140 will increase competition in the sale of contact lenses 

which will bring a substantial savings to America’s contact lens 

wearers. Consumers spend an estimated $3.5 billion annually on 

replacement contact lenses. Consumers who order prescription refills from alternative sellers can save, on average, 20 percent per 

order. 

A uniform national standard for prescription release and 

verification will best serve the consumer. H.R. 3140 promotes competition, consumer choice, and lower prices by extending to contact 

lens wearers the same automatic right to copies of their own prescriptions and allows consumers to purchase contact lenses from 

the provider of their choice. 

HEARINGS

The Subcommittee on Commerce, Trade, and Consumer Protection held a hearing on H.R. 2221 on September 9, 2003, the legislative precursor to H.R. 3140. The Subcommittee received testimony 

from Ms. Maria Martinez; Mr. J. Howard Beales, III, Director, Bureau of Consumer Protection, Federal Trade Commission; Mr. Jonathan C. Coon, Chief Executive Officer, 1–800 Contacts; Dr. J. Pat 

Cummings, O.D., Immediate Past President, American Optometric 

Association; Mr. Robert L. Hubbard, Director of Litigation, AntiVerDate jul 14 2003 05:51 Oct 17, 2003 Jkt 029006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\HR318.XXX HR318
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trust Bureau, Office of the New York Attorney General; Ms. Ami 

Gadhia, Consumers Union; and, Ms. Peggy Venable, State Director, 

Citizens for a Sound Economy. 

COMMITTEE CONSIDERATION

On Wednesday, September 24, 2003, the Subcommittee on Commerce, Trade, and Consumer Protection met in open markup session and approved H.R. 3140 for Full Committee consideration by 

a voice vote, a quorum being present. On Wednesday, October 1, 

2003, the Full Committee met in open markup session and ordered 

H.R. 3140 favorably reported to the House, with amendment, by a 

voice vote, a quorum being present. 

COMMITTEE VOTES

Clause 3(b) of rule XIII of the Rules of the House of Representatives requires the Committee to list the record votes on the motion 

to report legislation and amendments thereto. There were no 

record votes taken in connection with ordering H.R. 3140 reported. 

A motion by Mr. Tauzin to order H.R. 3140 reported to the House 

was agreed to by a voice vote. 

COMMITTEE OVERSIGHT FINDINGS

Pursuant to clause 3(c)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee has not held oversight or legislative hearings on this legislation. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

The goal of this legislation is to allow consumers access to their 

contact lens prescriptions and to provide for the verification of such 

prescriptions. 

NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX

EXPENDITURES

In compliance with clause 3(c)(2) of rule XIII of the Rules of the 

House of Representatives, the Committee finds that H.R. 3140, the 

‘‘Fairness to Contact Lens Consumers Act,’’ would result in no new 

or increased budget authority, entitlement authority, or tax expenditures or revenues. 

COMMITTEE COST ESTIMATE

The Committee adopts as its own the cost estimate prepared by 

the Director of the Congressional Budget Office pursuant to section 

402 of the Congressional Budget Act of 1974. 

CONGRESSIONAL BUDGET OFFICE ESTIMATE

Pursuant to clause 3(c)(3) of rule XIII of the Rules of the House 

of Representatives, the following is the cost estimate provided by 

the Congressional Budget Office pursuant to section 402 of the 

Congressional Budget Act of 1974:

7

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, October 15, 2003. 

Hon. W.J. ‘‘BILLY’’ TAUZIN, 

Chairman, Committee on Energy and Commerce, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3140, the Fairness to 

Contact Lens Consumers Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contacts are Melissa E. Zimmerman (for federal costs), Sarah Puro (for the impact on state and 

local governments), and Jean Talarico (for the impact on the private sector). 

Sincerely, 

ELIZABETH M. ROBINSON

(For Douglas Holtz-Eakin, Director). 

Enclosure.

H.R. 3140—Fairness to Contact Lens Consumers Act 

H.R. 3140 would establish procedures for issuers of contact lens 

prescriptions to follow concerning patients’ access to prescriptions. 

It would direct the Federal Trade Commission (FTC) to develop 

regulations to implement the bill and to complete a study on competition in the sale of prescription contact lenses. Based on information provided by the FTC, CBO estimates that implementing 

H.R. 3140 would have an insignificant effect on spending subject to 

the availability of appropriated funds. The bill would not affect direct spending or revenues. 

H.R. 3140 contains two intergovernmental mandates as defined 

by the Unfunded Mandates Reform Act (UMRA), but CBO estimates that the resulting costs would not be significant and would 

not exceed the threshold established in UMRA ($59 million in 

2003, adjusted annually for inflation). 

First, the bill would preempt state law in the five states that 

have stricter requirements for prescription verification, but CBO 

estimates that the preemption would impose no costs on those 

states. Second, the bill would require prescribers of contact 

lenses—including some who may work for public entities—to provide the patient a copy of the prescription and to verify contact lens 

prescriptions to third-party manufacturers. Since the bill would 

simply require eye care professionals to return the call of a thirdparty manufacturer if the prescription the manufacturer has is 

wrong, CBO estimates that the bill would impose no significant 

costs on those entities. In total, the costs of the mandates in the 

bill would fall substantially below the threshold established in 

UMRA. 

H.R. 3140 would also impose private-sector mandates as defined 

in UMRA on sellers and prescribers of contact lenses. Prescribers, 

as defined in the bill, include ophthalmologists, optometrists, or 

other persons permitted under state law to issue prescriptions for 

contact lenses. CBO expects that the incremental costs of those 

mandates would fall below the annual threshold for the private secVerDate jul 14 2003 05:51 Oct 17, 2003 Jkt 029006 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\HR318.XXX HR318
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tor established by UMRA ($117 million in 2003, adjusted annually 

for inflation). 

In order to sell contact lenses, sellers would have to obtain prescriptions from patients or prescribers directly or by facsimile; prescriptions received by other methods would require verification 

from the prescriber. The bill also would require sellers to maintain 

records for all prescription verifications that are communicated by 

telephone or electronic mail. 

In addition, H.R. 3140 would require the prescriber, after a contact lens fitting, to provide a contact lens prescription to the patient or to provide or verify the prescription to any person designated to act on behalf of the patient. The bill also would require 

prescribers, when requested by sellers of contact lenses, to verify 

contact lens prescriptions. 

According to the FTC, roughly two-thirds of states already require some form of prescription release. Currently, many of the 

larger sellers of contact lenses voluntarily comply with the 

verification and recordkeeping requirements of the bill. Furthermore, according to industry sources and the FTC, the additional 

costs for the sellers and prescribers not now in compliance with the 

requirements of the bill would be small. CBO, therefore, expects 

that the incremental cost of all the private-sector mandates in the 

bill would fall below UMRA’s threshold. 

The CBO staff contacts for this estimate are Melissa E. Zimmerman (for federal costs), Sarah Puro (for the impact on state and 

local governments), and Jean Talarico (for the impact on the private sector). This estimate was approved by Peter H. Fontaine, 

Deputy Assistant Director for Budget Analysis.

FEDERAL MANDATES STATEMENT

The Committee adopts as its own the estimate of Federal mandates prepared by the Director of the Congressional Budget Office 

pursuant to section 423 of the Unfunded Mandates Reform Act. 

ADVISORY COMMITTEE STATEMENT

No advisory committees within the meaning of section 5(b) of the 

Federal Advisory Committee Act were created by this legislation. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds that the Constitutional authority for this legislation is provided in Article I, section 8, clause 

3, which grants Congress the power to regulate commerce with foreign nations, among the several States, and with the Indian tribes. 

APPLICABILITY TO LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the 

terms and conditions of employment or access to public services or 

accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act. 

9

SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

Section 1. Short title 

Section 1 establishes the short title as the ‘‘Fairness to Contact 

Lens Consumers Act.’’ 

Section 2. Availability of contact lens prescriptions to patients 

Section 2(a) requires prescribers to provide patients with a copy 

of their contact lens prescription, whether or not requested by the 

patient. Additionally, prescribers are required to provide or verify 

a copy of the patients contact lens prescription to any person designated to act on behalf of the patient. 

Section 2(b) mandates that prescribers do not, as a condition of 

providing or verifying the contact lens prescription, require purchase of contact lenses from the prescriber, require payment in addition to, or as part of, the fee for an eye examination, fitting and 

evaluation, or require the patient to sign a waiver or release. 

Section 3. Immediate payment of fees in limited circumstances 

Section 3 provides that a prescriber may require payment of fees 

for an eye examination, fitting or evaluation before the release of 

a contact lens prescription only if the prescriber would have required immediate payment if the examination had not revealed the 

need for ophthalmic goods. Presentation of proof of insurance coverage for that service is deemed to be payment. 

Section 4. Prescriber verification 

Section 4 established a passive verification program for the 

verification of contact lens prescriptions. Section 4(a) allows a seller 

to verify a contact lens prescription if it is (1) presented to the seller by the patient or prescriber directly or by facsimile, or (2) 

verified by direct communication. Section 4(b) requires the seller to 

maintain a record of all direct communications referred to in (a). 

Section 4(c) details the information the seller must supply to the 

prescriber, in order for the prescriber to verify a contact lens prescription: (1) Patients full name; (2) contact lens power, manufacturer, base curve or appropriate designation, and diameter when 

appropriate; (3) quantity of lenses ordered; (4) date of patient request; (5) date and time of verification request; and, (6) name of 

contact person at seller’s company, including facsimile and telephone number. 

Section 4(d) requires that a contact lens prescription be verified 

only in one of three ways. First, verification occurs when the prescriber confirms the prescription is accurate by direct communication with the seller. Second, verification occurs when a prescriber 

informs the seller that the prescription is inaccurate and then provides the accurate prescription. Finally, verification occurs if the 

prescriber fails to communicate with the seller within 8 business 

hours, or a similar time as defined by the FTC as part of its rulemaking, after receiving from the information described in subsection (c). The Committee believes that any state law with an active or positive contact lens prescription verification system would 

stand as an obstacle to the accomplishment of the full purposes and 

objectives of this Act. Practically, it would be impossible to comply 

with the terms of this Act and an active verification scheme. ThereVerDate jul 14 2003 05:51 Oct 17, 2003 Jkt 029006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\HR318.XXX HR318
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fore, it is the intent of the Committee that the passive verification 

system in section 4(d) preempt any conflicting state laws that use 

active or positive contact lens prescription verification systems. 

Section 4(e) does not allow the seller to fill a prescription if a prescriber informs a seller before the deadline in section 4(d)(3) that 

the contact lens prescription in inaccurate, expired, or otherwise invalid. The prescriber must specify the basis for invalidity or inaccuracy. Finally, if the prescription communicated by the seller to the 

prescriber is inaccurate, the prescriber must correct it. Under section 4(f), a seller may not alter a contact lens prescription. However, if the same contact lens is manufactured by the same company and sold under multiple labels to individual providers, the 

seller may fill the prescription with a contact lens manufactured by 

that company under another label. This paragraph is designed to 

prevent eye doctors from prescribing private label contact lenses 

that can only be filled by the eye doctor. 

‘‘Direct communication’’ is defined in section 4(g) as including 

communication by telephone, facsimile, or electronic mail. This list 

is not exclusive, and the Committee recognizes that possession by 

the seller of a copy of a valid prescription released pursuant to the 

consumer pursuant to section 2 shall also constitute ‘‘direct communication.’’ It is the intent of the Committee that ‘‘direct communication’’ means a message has been both sent and received. Transmitting the request under 5(c) does not, in and of itself, constitute a 

direct communication. For instance, when a facsimile that is considered a ‘‘direct communication’’ is sent, the direct communication 

does not occur until a confirmation that the facsimile transmission 

was successful is sent. Similarly, if, for example, a prescriber is 

closed on Wednesday, has a phone recording stating that the office 

will be open at 9:00 a.m. on Thursday, and verification request information is left on the machine Tuesday evening after normal 

business hours, the direct communication would not occur, and the 

time period for verification of the prescription would not commence, 

until Thursday when the prescriber receives the request and his or 

her business hours resume. The Committee directs the FTC to set 

rules defining the time frame for verification and how it is calculated, and expects the FTC’s rules to be crafted consistent with 

this intent. 

Section 5. Expiration of contact lens prescriptions 

Section 5(a) details when a contact lens prescription expires. A 

contact lens prescription will expire (1) on the date specified by the 

law of the state in which the prescription is written, if that date 

is at least one year after the issue of date of the prescription; or 

(2) not less than one year after the issue date of the prescription 

if there is no state law or if the prescription is for less than one 

year. Section 5(a)(3) allows an eye doctor to write a contact lens 

prescription for less than one year if based on the medical judgment of the prescriber with respect to the ocular health of the patient. Section 5(b) requires that if a prescriber determines that the 

ocular health of the patient necessitates a prescription for less than 

one year, the reasons for this judgment must be documented in the 

patient’s medical record. Section 5(c) defines ‘‘issue date’’ as the 

date on which the patient receives a copy of the prescription. 

11

Section 6. Content of advertisements and other representations 

Section 6 prohibits any manufacturer, processer, seller or distributor of contact lenses to represent by advertisement, sales presentation or otherwise, that contact lenses may be obtained without 

a prescription. 

Section 7. Prohibition of certain waivers 

Section 7 prohibits a prescriber from placing on a contact lens 

prescription, or requiring a patient to sign or deliver to the patient, 

a form or notice waiving or disclaiming the liability of the prescriber for the accuracy of the eye examination. This does not impose liability on a prescriber for ophthalmic goods and services dispensed by another seller pursuant to the prescribers correctly 

verified prescription. 

Section 8. Rulemaking by Federal Trade Commission 

Section 8 requires the FTC to initiate a rulemaking pursuant to 

section 18 of the Federal Trade Commission Act (15 U.S.C. 57a) to 

effectuate this Act. These rules are exempt from the MagnusonMoss Warranty-Federal Trade Commission Improvement Act (15 

U.S.C. 2301 et seq.) requirements. These rules shall become effective not less than 180 days after the effective date of the Act. 

Section 9. Violations 

Section 9(a) directs the FTC to treat any violation of the Act or 

the rules enacted pursuant to the Act like a violation of a rule 

under section 18 of the Federal Trade Commission Act (15 U.S.C. 

57a) regarding unfair or deceptive acts or practices. Section 9(b) requires the FTC to enforce the Act in the same manner, by the same 

means, and with the same jurisdiction, powers, and duties as 

though all applicable terms and provisions of the Federal Trade 

Commission Act (15 U.S.C. 41 et seq.) were incorporated into and 

made a part of this Act. 

Section 10. Study and report 

Section 10(a) requires the FTC to undertake a study to examine 

the strength of competition in the sale of prescription contact 

lenses. The study shall include a review of the following issues: (1) 

The incidence of exclusive relationships between prescribers or sellers and contact lens manufacturers and the impact of these relationships on competition; (2) the difference between online and offline sellers of contact lenses; (3) the incidence, if any, of contact 

lens prescriptions that specify brand name or custom labeled contact lenses, the reasons for the incidence, and the effects on consumers and competition; (4) the impact of the FTC eyeglasses rule 

on competition, the enforcement of the rule, and how enforcement 

has impacted competition; and, (5) any other issue that has an impact of competition in the sale of prescription contact lenses. Section 10(b) requires the report be completed and submitted to Congress not later than 12 months after the effective date of the Act. 

Section 11. Definitions 

Section 11 defines ‘‘contact lens fitting,’’ ‘‘prescriber,’’ and ‘‘contact lens prescription.’’ These definitions are intended to be conVerDate jul 14 2003 05:51 Oct 17, 2003 Jkt 029006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\HR318.XXX HR318
12

sistent with state and federal law, including any Food and Drug 

Administration regulations. 

Section 12. Effective date 

Section 12 provides that the Act take effect 60 days after the 

date of enactment.

Æ