“Our company believes that contact lens wearers should be afforded two basic consumer protections:
- Every contact lens wearer holding a valid prescription should have the freedom to choose where her prescription is filled.
- Every contact lens wearer should feel confident that her prescription is based on health needs and not influenced by the prescriber’s financial interests.”
Testimony of Jonathan Coon, Chief Executive Officer, 1-800 CONTACTS, INC., before the Subcommittee on Commerce, Trade and Consumer Protection of the House Energy and Commerce Committee. September 15, 2006
https://www.govinfo.gov/content/pkg/FR-2020-08-17/pdf/2020-14206.pdf
Eye care providers withhold their patients’ prescriptions to prevent them from shopping elsewhere.
A consumer’s right and ability to purchase contact lenses from the seller of their choice is being thwarted every day by eye care providers (ECPs) who also sell contact lenses. ECPs earn up to half of their income selling the very products they prescribe. This inherent conflict of interest has led to the illegal practice of withholding prescriptions from their patients. This forces the patient to buy contact lenses from the ECP instead of being able to shop around for more competitive prices and services. The result? Consumers are being gouged by their medical professionals.
Sadly, this anti-consumer behavior isn’t new.
This anti-consumer behavior motivated 1-800 Contacts, and others, to seek out solutions aimed at affording consumers the two basic protections that are so vital for this marketplace. The solution has become known as passive verification and is the cornerstone of the 2003 contact lens law, the Fairness to Contact Lens Consumers Act (FCLCA).
Prior to the enactment of the FCLCA, there were two key approaches to contact lens prescription verification:
Positive verification
- Positive verification is a traditional verification model between doctors and pharmacies. It works extremely well in situations where the prescriber has no reason to not verify a prescription with a seller.
Passive verification
- A passive verification system mandates that if the prescriber fails to respond to the seller during a set amount of time, the prescription is deemed confirmed and the seller can fulfill the customer’s order.
- Passive verification does not guarantee that a prescription will be filled. Instead, it guarantees a consumer’s right and ability to shop around, while also providing a prescriber the opportunity to inform a seller that a prescription is invalid and should not be filled.
To understand the importance of passive verification within the FCLCA and why Congress chose this approach instead of positive verification, consider the same examples Members of Congress considered when deliberating the FCLCA in 2003.
Testimony of Jonathan Coon, Chief Executive Officer, 1-800 CONTACTS, INC., before the Subcommittee on Commerce, Trade and Consumer Protection of the House Energy and Commerce Committee. September 15, 2006
https://www.govinfo.gov/content/pkg/CHRG-109hhrg31465/html/CHRG-109hhrg31465.htm
Support for passive verification within the FCLCA
- The American Optometric Association (AOA) applauded Congressman Burr for “crafting a contact lens prescription release bill that requires sellers provide doctors with all the information necessary to respond to requests for verification…”
- The FTC has received “numerous personal accounts of prescribers’ failure to release prescriptions.”
- “Congress, when considering the FCLCA, was aware that a passive-verification regime could, in some instances, allow sellers to sell and ship contact lenses based on an invalid or inaccurate prescription, and that this could potentially lead to health risks. Congress opted for a passive-verification regime despite this concern in order” to ensure that consumers are not caught in the competitive tug-of-war between doctors and third-party sellers for the sale of contact lenses.”
- “It was also envisioned that prescribers would remain diligent in ensuring that patients did not receive lenses for which they had not been prescribed, since it is in both prescribers’ self-interest and the health and safety interests of their patients to prevent this from occurring. In this manner, the passive verification system was perceived, to a certain extent, to be self-enforcing, as prescribers would have both a financial interest and an ethical duty to police invalid, incorrect, or expired prescriptions.”
Testimony of Jonathan Coon, Chief Executive Officer, 1-800 CONTACTS, INC., before the Subcommittee on Commerce, Trade and Consumer Protection of the House Energy and Commerce Committee. September 15, 2006
https://www.govinfo.gov/content/pkg/CHRG-109hhrg31465/html/CHRG-109hhrg31465.htm
Victor J. Connors, O.D. Letter on behalf of the American Optometric Association to the Honorable Representative Richard Burr, dated September 23, 2003
https://img.1800contacts.com/image/upload/v1637101845/web/Victor-Connors-letter.png
FTC, Federal Register, Vol. 84, No. 102, Supplemental Notice of Proposed Rule Making, 2019. 24666
https://www.govinfo.gov/content/pkg/FR-2019-05-28/pdf/2019-09627.pdf
Referencing testimony given by Howard Beales, Federal Trade Commission Bureau of Consumer Protection, during the FCLCA Subcomm. Hearing on September 9, 2003:
https://www.govinfo.gov/content/pkg/CHRG-109hhrg31465/html/CHRG-109hhrg31465.htm
1-800 Contacts & passive verification
1-800 Contacts believes the introduction of passive verification helped the contact lens industry realize the basic consumer protections that are at the core of our business. We take passive verification seriously. We regularly audit our interactions with ECPs to ensure compliance with the law. 1-800 Contacts has never been fined by the FTC for any passive verification violations and has, since 2003, continued to set the standard for how a seller should approach verifying prescriptions with prescribers.