The Contact Lens Rule and the Evolving Contact Lens 

Marketplace 

Introduction 

ALYSA BERNSTEIN: Good morning. My name's Alysa Bernstein and I'm an attorney in the 

Bureau of Consumer Protection at the Federal Trade Commission. On behalf of my colleagues, 

I'm very excited to welcome you all to the Contact Lens workshop. We're excited to explore the 

contact lens marketplace with you today. Before we get to the main event, I need to review a few 

administrative details, so I hope you've had your coffee already. 

Please silence any mobile phones and devices. If you need to use them during the workshop, 

please be respectful of the speakers and your fellow audience members. Be aware if you leave 

the Constitution Center building for any reason during the workshop, you're going to have to go 

through security again. Keep this in mind and plan ahead, especially if you're participating on a 

panel so that we can do our best to remain on schedule. 

The restrooms are just outside the auditorium. The plaza east cafeteria is located inside the 

building. So you can use it without going through security. The cafeteria is the place to go if you 

like coffee or tea without having to leave the building. It's open till 11 AM, and then it'll reopen 

at 11:30, and remain open till 3:00 PM. There's no food or drink other than water permitted in 

the auditorium. 

Most of you received a lanyard with a plastic FTC the event security badge. We reuse these for 

multiple events, so when you leave for the day, please return your badge to the event staff. If an 

emergency occurs that requires you to leave the auditorium but remain in the building, follow the 

instructions provided over the PA system. 

If an emergency occurs that requires the evacuation of the building, the alarm will sound, and 

everyone should leave the building in an orderly manner through the main 7th Street exit. After 

leaving the building, turn left, and proceed down 7th Street, and across E Street to the FTC 

emergency assembly area. Remain there until instructed to return to the building. If you notice 

any suspicious activity, please alert building security. 

Be advised this event may be photographed, and it is being webcast, and recorded. By 

participating, you are agreeing that your image and anything you say or submit may be posted 

indefinitely at FTC.gov or one of the Commission's publicly available social media sites. 

Welcome to those watching via the webcast. We'll make the webcast and all of the workshop 

materials available online to create a lasting record for everyone who is interested in these issues. 

For those of you on Twitter, we'll be tweeting today's workshop at #ContactLensFTC. If you'd 

like to ask a question via Twitter, please tweet your question using that hashtag. 

We'll also be accepting questions via paper cards. They look like this, for those who are here in 

the audience. You may have picked up some of these cards already at check in. Workshop staff 

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will also walk around and distribute these cards during each session. And then we'll collect the 

cards, and bring them up to the moderators. Due to time constraints, we will not be able to 

address all questions during the workshop itself, including those we receive via Twitter, but 

workshop staff will certainly review all of the questions. 

If you'd like to submit a formal written comment about issues that we discussed at the workshop, 

we welcome online submissions at the FTC's website through April 6. If you need anything 

during the conference today, please feel free to ask FTC staff who are wearing the official 

workshop badges, including the paralegals who greeted you at the registration desk. 

Lastly, I want to thank our panelists for taking part in today's workshop. We're grateful for your 

time. Aside from the people you'll see on stage today, the program would not be possible without 

the great work of Kristal Peters and Bruce Jennings, the honors paralegals that have been helping 

you throughout the day, the assistance of our college interns, Jennifer Thompson and Brianna 

Thomas. Also providing invaluable support are Nathan Otlewski, from our Division of 

Consumer and Business Education, Nicole Jones from Office of Public Affairs, and Bonnie 

McGregor from our Division of Advertising Practices. 

Now it's my honor to introduce our acting director of the Bureau of Consumer Protection, Tom 

Pahl, to give opening remarks. He oversees the Commission's attorneys, investigators, and 

administrative personnel working to protect consumers from unfair and deceptive practices in the 

marketplace. Tom first joined the agency in 1990, and spent more than two decades serving in 

various positions, including as an attorney advisor for former FTC commissioners, Orson 

Swindle and Mary Azcuenaga, and as assistant director in the Divisions of Financial Practices 

and Advertising Practices. 

In his position as Assistant Director of Advertising Practices, Tom oversaw the Commission's 

work on the Contact Lens Rule, so he's definitely not a stranger to many of the issues we'll be 

discussing today. Welcome, Tom. 

Opening Remarks 

TOM PAHL: Well, thank you, Alysa, and good morning, everyone. I'm Tom Pahl, the acting 

director of the FTC's Bureau of Consumer Protection. Welcome to the FTC workshop on the 

Contact Lens Rule and the evolving contact lens marketplace. It's great to see so many people 

here getting together on a topic that affects so many Americans. In fact, more than 41 million 

Americans, more than 16% of the United States population, wear contact lenses, and that number 

is growing. 

In 2002, just prior to the creation of the Contact Lens Rule, about 13% of Americans wore 

contacts-- 5 million fewer than today. And that growth may be accelerating. According to one 

industry tracker, The Vision Council, who will be one of our panelists today, 1.3 million more 

Americans are wearing contacts now than 12 months ago. Contact lenses are also a major 

purchase for many consumers, with many spending hundreds of dollars a year on lenses. 

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Besides the benefits that consumers quite literally see, contact lenses are a big business. US sales 

revenue surpassed $5 billion last year, up from less than $2 billion in 2002. The variety of lenses 

and of places to buy them is far more diverse than it once was. Consumers can now choose from 

online sellers, big box stores, wholesale clubs, retail chains, and of course, from independent eye 

doctors. 

We at the FTC liked to think that the Contact Lens Rule has contributed to the growth and 

diversity of the contact lens marketplace. The Rule has been in place since 2004, but it's worth 

reviewing its history and the statute that provides the framework for the Rule. I'm particularly 

well-suited, as Alysa had mentioned, to discuss the industry because I was one of the FTC staff 

members who worked on promulgating the original rule in 2004. 

Often, what people think of as requirements imposed by the FTC through the Contact Lens Rule 

are actually requirements spelled out in the statute. Specifically, the Fairness to Contact Lens 

Consumers Act, or FCLCA, which went into effect in 2004. At the time of the Act's passage, 

about two thirds of the states already had statutes requiring some form of prescription release to 

consumers. 

Yet despite these laws, Congress determined that many consumers were still not getting copies 

of their prescriptions, and were having a tough time obtaining lenses from third party sellers due 

to prescription verification obstacles. Problems with prescription release and verification 

hampered competition, and limited the ability of consumers to comparison shop. Congress also 

had concerns that some sellers were selling lenses without requiring a valid prescription. 

The Act was intended to remedy these concerns. Foremost is what's known as the automatic 

prescription release requirement, which mandates that prescribers give consumers a free copy of 

their prescription at the end of a contact lens fitting, even if the consumer doesn't ask for it. The 

Act further provides that consumers can take prescription to any seller to be filled. Because it's 

not always possible for consumers to present an actual copy-- perhaps the consumer lost the 

prescription or wasn't given it-- the Act also requires that prescribers verify prescriptions. 

In the Act, Congress opted for a framework that includes three possible methods of obtaining 

verification. A prescription is considered verified if first, the eye doctor confirms the accuracy of 

the prescription. Second, the eye doctor corrects inaccuracies in the prescription. Or third, the 

doctor fails to respond to the verification request within eight business hours. This third method 

is commonly known as passive verification. 

In constructing the verification framework this way, the idea was that prescribers can prevent 

consumers from using an invalid prescription, and there are sound medical reasons for doing so. 

But prescribers also would not be able to block third parties from selling to consumers simply by 

ignoring a third party's verification request. The Act also makes it illegal to sell lenses without 

either verifying the prescription, or obtaining a copy of the consumer's prescription. It also 

prohibits sellers from altering a prescription or switching from the prescribed brand. 

The heart of the Act is automatic prescription release and passive verification. We can, and will, 

talk today about whether these are working as intended, but to substantially alter these 

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requirements would require legislative action. It's not something the Commission has the 

authority to do by rulemaking. 

Today, our focus is primarily on the Contact Lens Rule, which the Commission issued in 2004 to 

implement the Act. The Rule tracks the statute very closely, with the same requirements that 

prescribers release and verify prescriptions, and don't charge extra for doing so. The Rule also 

contains some additional provisions, such as a recordkeeping requirement for sellers, a definition 

as to what constitutes eight business hours, and a requirement that during the eight hour period, a 

seller has to provide an opportunity for the prescriber to communicate with them. 

Which brings us to the current rule review. In September 2015, as part of our periodic regulatory 

review process, the Commission sought public comment on the Contact Lens Rule -- how it was 

functioning, whether it was still needed, its benefits and its burdens. In response, the FTC 

received 660 comments. Virtually all of them agreed that there is a continuing need for the Rule, 

and that it benefits consumers and competition. 

At the same time, many commenters also recommended that the Commission make 

modifications to the Rule. Some felt that sellers and consumers were abusing the passive 

verification system to avoid seeing their eye doctor, and were getting lenses without a valid 

prescription. Other commenters said that verification requests, robocalls in particular, were a 

burden on doctors. Yet other commenters said that even after more than a decade, many 

prescribers were still not releasing prescriptions. Some released them, but only if patients 

requested them. Others never released them at all, instead steering patients into doctor-owned 

optical shops for their contact lens purchases. 

After viewing all the comments, surveys, and other information that was submitted, the 

Commission decided in November 2016 that there was need for improved compliance with the 

Rule's automatic prescription release requirement, as well as a need to create a mechanism for 

monitoring and enforcing the Rule. To accomplish this, the Commission proposed to amend the 

Rule to require that prescribers obtain a signed acknowledgment form from patients, confirming 

that they had received prescriptions. Prescribers would have to hold onto these signed receipts 

for three years. 

The Commission believed these changes would lead to increased prescription release, which in 

turn would improve compliance with the Rule. Increased prescription release would enhance 

patient flexibility and choice, reduce costs for patients, sellers and prescribers, and reduce 

consumer harm from verification errors. The Commission believed that these benefits exceeded 

the burden of one minute per patient that it had estimated it would take to obtain a signed receipt, 

and save into the patient's file. 

In response to this proposed amendment, we received over 4,000 comments, including more than 

800 from eye doctors alone. While many commenters supported the proposed amendment, the 

comments raised many issues the Commission decided deserved additional attention and 

examination. The optical marketplace is evolving in many ways with new developments in 

telehealth, patient portals, online and subscription delivery models, as well as developments in 

the types of lenses that people wear. As just one example, less than 8% of consumers used daily 

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disposable lenses in 2005. Nearly 30% use them in 2017 and as many as 50% are projected to 

use them by 2021. 

In light of the changes to the market, and the comments we received, the Commission has 

decided to hold the workshop that we are going to have today. We've assembled a great group of 

panelists that include optometrists and ophthalmologists, online sellers, brick and mortar 

retailers, academics, consumer advocates, economists, and of course, one or two lawyers, 

because you can never have a panel in Washington without lawyers. 

Today, we'll have six panels. We'll start with a short look at the marketplace. Then move on to 

discuss health and safety. And then competition. After lunch, we'll resume with a panel 

examining verification, followed by a panel on facilitating consumer choice. We'll wrap up with 

a panel looking ahead at developments and disruptions that may be coming down the pike. 

By having these discussions today, we hope to educate ourselves about changes in the 

marketplace that may create opportunities for consumers to obtain contact lenses safely, and at 

competitive prices. We'll also explore how the Contact Lens Rule can foster competition, 

maximize consumer benefits, and minimize burdens on prescribers and sellers. 

So let me thank our panelists for agreeing to share their knowledge and experience with us. I 

know some of you have come great distances to join us here today, and we appreciate it very 

much. And let me also thank everyone who couldn't make it in person, submitted comments in 

advance, or is joining us via online. We read all comments that we receive, and take them 

seriously. 

Finally, I want to thank the FTC staff from the Bureau of Consumer Protection, the Bureau of 

Competition, the Bureau of Economics, and the Office of Policy Planning, who have worked so 

hard and well to put this workshop together. The fact that this workshop draws from all the 

different parts of the FTC, to me, really speaks to the breadth of the issues, their complexity, and 

their importance to the agency. And so I've been thrilled to see that our staff have been able to 

work together to make sure that the expertise of all parts of the agency are brought to bear on the 

issues that we're going to discuss today. 

So with that, I'm going to turn the podium over to Beth Freeborn and the first panel to get us 

started. Thank you everyone, and have a great day. 

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