Public Workshop Examining Proposed Changes to the Ophthalmic Practice Rules (Eyeglass Rule)

AGENCY:

Federal Trade Commission.

ACTION:

Public workshop and request for public comment.

SUMMARY:

The Federal Trade Commission (“FTC” or “Commission”) will hold a public workshop relating to its January 3, 2023, notice of proposed rulemaking (“NPRM”) announcing proposed changes to the Ophthalmic Practice Rules (“Eyeglass Rule” or “Rule”). The workshop may address the proposed confirmation of prescription release requirement for eyeglass prescriptions, consumers' and prescribers' experiences with the implementation of a similar requirement for contact lens prescriptions, other proposed changes to the Rule, and other issues raised in comments received in response to the NPRM.

DATES:

The public workshop will be held on May 18, 2023, from 9:00 a.m. until 1:00 p.m. ET, at the Constitution Center Conference Center. The workshop will also be available for viewing via live webcast. Requests to participate as a panelist must be received by April 7, 2023. Any written comments related to the agenda topics or the issues discussed by the panelists at the workshop must be received by June 20, 2023. Interested parties may file a comment or a request to participate as a panelist online or on paper by following the instructions in Part IV of the SUPPLEMENTARY INFORMATION section below.

ADDRESSES:

The workshop will take place in the Conference Center within the Constitution Center building, which is located at 400 7th Street SW, Washington, DC 20024. The workshop will also be available for viewing via live webcast on the FTC's website at https://www.ftc.gov/news-events/events/2023/05/clear-look-eyeglass-rule.

FOR FURTHER INFORMATION CONTACT:

Sarah Botha, Attorney, (202) 326-2036, Alysa Bernstein, Attorney, (202) 326-3289, or Paul Spelman, Attorney, (202) 326-2487, Division of Advertising Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

I. Introduction

The Commission promulgated the Eyeglass Rule in 1978 under Section 18 of the FTC Act, which grants the Commission the authority to adopt rules defining unfair or deceptive acts or practices in or affecting commerce. The Rule declares it an unfair act or practice for ophthalmologists or optometrists to fail to provide one copy of a patient's prescription to the patient immediately after completion of an eye examination. The Rule also prohibits the prescriber from charging the patient any fee in addition to the prescriber's examination fee as a condition to releasing the prescription to the patient. The Rule protects consumers and promotes competition in the retail sale of eyeglasses by ensuring consumers have unconditional access to their prescriptions so they can comparison-shop for eyeglasses.

As part of its ongoing regulatory review program, the Commission published an advance notice of proposed rulemaking (“ANPR”) in September 2015 seeking public comment on, among other things: the continuing need for the Rule; the Rule's economic impact and benefits; possible conflict between the Rule and state, local, or other federal laws or regulations; and the effect on the Rule of any technological, economic, or other industry changes. The Commission also sought comment on the following specific questions: should the definition of “prescription” be modified to include pupillary distance; should the Rule be extended to require that prescribers provide their patients with a duplicate copy of a prescription; and should the Rule be extended to require that a prescriber provide a copy to, or verify a prescription with, third parties authorized by the patient. The comment period closed on October 26, 2015, and the Commission received 868 comments. Virtually all commenters agreed that there is a continuing need for the Rule and that it benefits consumers and competition, although commenters differed in their opinions regarding whether the Commission should amend the Rule. Consumers and retailers, including many opticians, were generally in favor of modifying the Rule to increase consumer access to prescriptions, improve compliance with the Rule, and facilitate consumers' ability to purchase eyeglasses at the retailer of their choice, including from online retailers, while prescribers were frequently opposed to the specific amendments discussed in the ANPR.

In 2020, the FTC amended the Contact Lens Rule to require contact lens prescribers to obtain a signed acknowledgment after releasing a contact lens prescription to a patient, and maintain each such acknowledgment for a period of not less than three years. The amended Contact Lens Rule also defined the term “provide the patient a copy” to allow prescribers, with the patient's verifiable consent, to give the patient a digital copy of their prescription instead of a paper copy. It also obligated prescribers to provide a duplicate copy of a prescription within 40 business hours, and imposed new rules for sellers regarding verification requests and prescription alterations.

After reviewing the public comments to the Eyeglass Rule ANPR, and considering the rulemaking record for the 2020 Contact Lens Rule amendments, the Commission, on January 3 2023, published the NPRM, proposing to amend the Eyeglass Rule to require that prescribers obtain a signed acknowledgment after releasing an eyeglass prescription to a patient, and maintain each such acknowledgment for a period of not less than three years. The Commission also proposed to define the term “provide to the patient one copy” to allow prescribers, with the patient's verifiable consent, to give the patient a digital copy of their prescription instead of a paper copy, and to clarify that presentation of proof of insurance coverage shall be deemed to be a payment for the purpose of determining when a prescription must be provided. These three amendments would align the Eyeglass Rule's prescription release provisions with those of the Contact Lens Rule. Finally, the Commission proposed a technical amendment to change the term “eye examination” to “refractive eye examination” throughout the Rule.

In its NPRM, the Commission sought public comment on the likely effects of these proposed amendments, including information about the costs and benefits and any regulatory alternatives to the proposed changes. The Commission also asked about any changes in technology, in the marketplace, or to state regulations pertaining to pupillary distance, that the Commission should consider. The Commission received 27 comments in response. Several comments, including those of consumers, consumer groups, and retailers, supported the proposed changes, noting that access to eyeglass prescriptions allows consumers to comparison shop for eyeglasses and increases competition in the prescription eyeglasses marketplace. Comments also supported increased enforcement to encourage compliance with the Rule. Comments from individual prescribers, as well as certain national prescriber and optician organizations, generally opposed the proposed confirmation requirement, primarily on the grounds that confirming prescription receipt is unnecessary and would lead to increased costs to prescribers. Some comments also addressed the other proposed Rule changes. Commenters expressed support for the proposed amendment that would expressly permit digital prescription delivery with a patient's verifiable consent, but had differing views on whether to amend the Rule to allow proof of insurance coverage to constitute payment and to replace the term “eye examination” with the term “refractive eye examination.” Commenters also expressed a variety of opinions on whether the Rule should require inclusion of pupillary distance on the prescription.

II. Issues for Discussion at the Workshop

As part of the Eyeglass Rule regulatory review, the FTC is hosting a public workshop to explore information relating to the Rule changes proposed in the NPRM. The workshop may cover such topics as: (1) the costs and benefits to both consumers and eye care professionals of the proposed confirmation of prescription release requirement for eyeglass prescriptions; (2) consumers' and prescribers' experiences with the implementation of the similar confirmation of prescription release requirement for contact lens prescriptions; and (3) the likely impact of the proposed modifications to the Eyeglass Rule to foster competition and maximize consumer benefits.

A more detailed agenda will be published at a later date, in advance of the scheduled workshop.

III. Public Participation Information

A. Workshop Attendance

The workshop is free and open to the public, and will be held at the Constitution Center, 400 7th Street SW, Washington, DC. For admittance to the Constitution Center, all attendees must show valid government-issued photo identification, such as a driver's license. Please arrive early enough to allow adequate time for this process. The workshop will also be available for viewing via live webcast on the FTC's website at https://www.ftc.gov/news-events/events/2023/05/clear-look-eyeglass-rule.

This event may be photographed, videotaped, webcast, or otherwise recorded. By participating in this event, you are agreeing that your image—and anything you say or submit—may be posted indefinitely at https://www.ftc.gov or on one of the Commission's publicly available social media sites.

B. Requests To Participate as a Panelist

The workshop will be organized into one or more panels, which will address the designated topics. Panelists will be selected by FTC staff. Other attendees will have an opportunity to comment and ask questions. The Commission will place a transcript of the proceeding on the public record. Requests to participate as a panelist must be received on or before April 7, 2023, as explained in Section IV below. Persons selected as panelists will be notified on or before April 21, 2023.

Disclosing funding sources promotes transparency, ensures objectivity, and maintains the public's trust. If chosen, prospective panelists will be required to disclose the source of any support they received in connection with participation at the workshop. This information will be included in the published panelist bios as part of the workshop record.

C. Electronic and Paper Comments

The submission of comments is not required for participation in the workshop. If a person wishes to submit paper or electronic comments related to the agenda topics or the issues discussed by the panelists at the workshop, such comments should be filed as prescribed in Section IV, and must be received on or before June 20, 2023.

IV. Filing Comments and Requests To Participate as a Panelist

You can file a comment, or request to participate as a panelist, online or on paper. For the Commission to consider your comment, we must receive it on or before June 20, 2023. For the Commission to consider your request to participate as panelist, we must receive it by April 7, 2023. Write “Eyeglass Rule, Comment, Project No. R511996” on your comment, and “Eyeglass Rule, Request to Participate, Project No. R511996” on your request to participate as a panelist. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the publicly available website, https://www.regulations.gov.

Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online, or to send them to the Commission by overnight service. To make sure the Commission considers your online comment, you must file it at https://www.regulations.gov.

Because your comment will be placed on the public record, you are solely responsible for making sure that your comment does not include any sensitive or confidential information. In particular, your comment should not include any sensitive personal information, such as your or anyone else's Social Security number; date of birth; driver's license number or other state identification number, or foreign country equivalent; passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any “trade secret or any commercial or financial information which . . . is privileged or confidential”—as provided by Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)—including in particular competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. Your comment will be kept confidential only if the General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted on https://www.regulations.gov, we cannot redact or remove your comment, unless you submit a confidentiality request that meets the requirements for such treatment under FTC Rule 4.9(c), and the General Counsel grants that request.

Requests to participate as a panelist at the workshop should be submitted electronically to eyeglassworkshop2023@ftc.gov, or, if mailed, should be submitted in the manner detailed below. Parties are asked to include in their requests a brief statement setting forth their expertise in or knowledge of the issues on which the workshop will focus as well as their contact information, including a telephone number and email address (if available), to enable the FTC to notify them if they are selected.

If you file your comment or request to participate on paper, write “Eyeglass Rule, Comment, Project No. R511996” on your comment, and “Eyeglass Rule, Request to Participate, Project No. R511996” on your request to participate as a panelist. Please mail your comment or request to participate to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex W), Washington, DC 20580.

Visit the Commission website at https://www.ftc.gov to read this document and the news release describing it. The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before June 20, 2023. The Commission will consider all timely requests to participate as a panelist in the workshop that it receives by April 7, 2023. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

V. Communications by Outside Parties to Commissioners or Their Advisors

Written communications and summaries or transcripts of oral communications respecting the merits of this proceeding from any outside party to any Commissioner or Commissioner's advisor will be placed on the public record.