Legislating a “Market”
By Eric Peters Oct 31, 2016
Ever wonder why reading glasses are so easy to get – and inexpensive to buy?
Could it be because you can just walk into any drug store or supermarket pharmacy and try on a pair, find the one that works for you and buy them … without having to ask permission (and pay for the privilege) first?
You don’t need a prescription to shop around for reading glasses.
Why should you have to get a prescription for contacts?
They are not a drug. You can’t “overdose” on them or sell them to kids on the street corner (unless they’re near-sighted).
Nonetheless, a prescription is required – and not only that, the prescription is often brand-name specific.
A law – the disingenuously named Contact Lens Consumer Health Protection Act requires this. It states: “…contact lenses must be dispensed exactly as the prescription is written by the doctor.”
This law, originally passed back in 2004, gave eye doctors and contact lens manufacturers a monopoly in the literal sense of the word, because it was enforced by law. You, as a patient, had no choice but to get (and pay for) exactly what the doctor ordered.
Interestingly, the majority of the scrips written are for contacts made by Johnson & Johnson, which dominates the contact lens market and now – via congressional edict – enjoys a legislated market for its products.
As the Church Lady used to say on Saturday Night Live… how convenient!
An attempt was made to undo this medical rent-seeking by requiring that doctors issue more than just one name-brand scrip – in order to make it possible for their patients to shop around for contacts other than those made by Johnson & Johnson. Much in the same way that people are able to shop around for equivalent but lower-cost generic versions of name-brand drugs.
But unlike drugs – which are drugs – one could shop for contacts online, from the convenience of one’s home (as opposed to the inconvenience of an optometrist’s office).
The Fairness in Contact Lens Consumer Act of 2003 also required eye doctors provide multiple prescriptions on demand, eliminating the one-size-fits-all “business” model that existed previously. And it eliminated hemming and hawing by doctors to make it a hassle to shop around, especially online.
Previously, an eye doctor could hold up the purchase of contacts by other than his “preferred provider” (typically in-house) by refusing to consent to an online purchase or by asking endless, open-ended questions of the other-than-preferred provider, which could not legally complete the sale until the crony capitalist doctor gave his ok.
Which he might never give.
Under the FCLCA, doctors had to submit questions or express concerns within a reasonable time (eight hours) after which the patient was free to proceed with the purchase.
Who could object?
Johnson & Johnson (and the American Optometry Association) could – via lobbyists and influence-peddled captive legislators.
They want to rescind the FCLCA in order to effectively forbid contact lens competition by reviving the name-brand mandate and no longer requiring that doctors give their patients more than just the one prescription.
Their proposed legislation – an updated version of the Contact Lens Consumer Health Protection Act (S. 2777) would also impose onerous new requirements that online contact lens sellers set up and maintain land/fax lines for eye doctors’ use – which is like insisting that electronics stores sell Betamax players.
Leaving aside the idiocy of a law requiring faxes and phone calls in an e-mail (and text) age, the new proposed legislation would resurrect the delaying tactics used previously to indefinitely block sales to other than “preferred” providers – an obvious attempt to stifle competition from online sellers and, thereby, pick consumers’ pockets for the benefit of crony capitalist operations like Johnson & Johnson.
So, despite the legislation’s protective-sounding title, the CLCHPA of 2016 is about protecting the revenue stream of crony capitalist contact lens manufacturers and also the doctors (AOA members) who legislatively profit at our expense.
Just as you can determine the “prescription” you need for reading glasses on your own, for free, by using the eye chart at the pharmacy or supermarket and trying on various strength lenses until you find the pair of glasses that work for you – it is just as easy (and inexpensive) to check your vision online, or by using a free phone app.
Perish the thought.
The pushers of the for-profit contact lense legislation make the claim that it’s all about protecting public health. But aside from the evidence of a profit motive, what is the evidence that there’s a public health issue here?
There is no prescription requirement in Japan, for example. And no evidence of any problems there.
Or, for that matter, here.
Not a shred of evidence has been put forward supporting the claim that leaving people free to shop for the best price on a pair of contact lenses has hurt anyone – except the bottom line of certain parties.
The chief potential medical problem associated with contacts is infection (keratitis) typically resulting from improper use or failure to keep the contacts clean. But this has nothing to do with the contact lenses themselves. A duly-legislated crony-capitalist Name Brand contact lens is just as susceptible to causing problems if not worn or cared for correctly as any other pair of contacts.
Dr. Paul Donzis, a professor of ophthalmology at UCLA, is one of several prominent eye specialists who has publicly critiqued the motives as well as the claims made by the interests pushing the CLCHPA. “Based on authoritative scientific articles,” he wrote in an open letter to the CLCHPA’s authors, “it appears that online sales of contact lenses have not contributed to any increase in the incidence of contact lens-related injury.”
A peer-reviewed study in the medical journal, Eye and Contact Lens, found no evidence of increased keratitis resulting from the purchase of contact lenses online.
Meanwhile, there is abundant evidence of a profit motive at work here. Around 40 million Americans wear contacts. It’s a billion dollar business.
But it’s not business that’s the problem – or keratitis.
It’s forcing people to do business with crony capitalists, using flimsy excuses about non-existent problems to justify it.