us-ftc-advocacy-filings-2475461ee56ce0d20444fe89261a4678•FTC Staff Comment to the Deputy Majority Leader of the Assembly Concerning New York A.B. 4801 to Permit Over-The-Counter Sale of Simple Magnification Lenses
FTC Staff Comment to the Deputy Majority Leader of the Assembly Concerning New York A.B. 4801 to Permit Over-The-Counter Sale of Simple Magnification Lenses
us-ftc-advocacy-filings-2475461ee56ce0d20444fe89261a4678FTC Staff Comment to the Deputy Majority Leader of the Assembly Concerning New York A.B. 4801 to Permit Over-The-Counter Sale of Simple Magnification LensesAdvocacy Filing
Hay 11, 1987
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-_g7Fedel'al Trlld~ Commi~~~ .__ . ~,:,-_ --bri-u,.-----.--~-.
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zr. FClkrnl PIUJl, 22nd Ft.
N('w York. r--:(,,,,, York -i027S
(212) 2fi4 ·1200
Ms. -Shili' Be r9 in
Cx~cutive Director to the
Deputy Miljority Leader
The Assembly of the St~te
of New York
L~gis1ative Office Building, Room 941
Albany, New York 12248
De12r.M~. Bergin:
The staff or the Federal Trade Commission is pleased to
respond to your invitation to comment on proposed New York
legislation relating to lenses used for sim£le magnification,
including ready-to-wear reading eyeglasses. Assembly Bill 4801
(A. 4801) would permit over-the-counter sale of these products,
• exempting them from current provisions requiring that all
eyeglasses or lenses be sold only by prescription of a licensed
physician or optometrist. The proposal would therefore allow New
Yorkers to purchase reading glasses without a prescription. In
addition, however, th~ bill would require sellers of these
products to disclose in any print advertising and at the point of
sale that they are not intended to replace prescription glasses
or re~ular eye check-Ups.
We support A. 4801 becaus~ it would make reading
glasses available to New York consumers without a prescription.
These glasses are currently available without prescription in 46
other states. Over-the-counter availability of reading glasses
Ls like~ to result in greater comp~tition in the market for ~
eyeglasses and to increase convenience and reduce prices for
consumers. However, we are concerned that the disclosures
required by A. 4801 may add costs to the product that may
unnecessarily diminish the consumer benefits of the bill.
Because it seems likely th~t the information required to be
1 This letter presents the comments of the New York Regional
Office and the Bureaus of Competition, Economics and Consumer
Protection of the Federal Trade Commission. The views expressed
are not necessarily those of the Commission or of any individu·ai
Commissioner, although the Commission has voted to.authorize the
presentation of these comments to you.
• r Ms. Shay Bergin - 2 - disc~osed will be provided voluntarily by others in the market who already have significant inc~ntive9 to do so without regula- tiun, the disclosure requirement is unlikely to produc€ any benefits to consumers. Accordingly, we urge that the disclosur~ (~quirement be deleted from the proposed legislation. 1. Ihterest and Experience of the Federal Trade Commission The federal Trade Commission is an agency empowered by Congress ,under 15 U.S.C. S 45 with prev~nting unfair methods of competition doll unfedr ur deceptive acts or practices in or affeGting commerce. Pursuant to thi~ mandate, the CommissL;>n_ seeki to serve the public interest and protect the marketplace from 'unreasonable restraints of trade. The agency's objective i6 to identify and seek the removal of restrictions that impede competition or increase costs, without providing countervailing b~n~fits to con~umers. As part of th~se efforts we provide comments, on requ~st, to federal, state, and local 1~9islatures and administrative bodies to explore competition-ba9cd approaches to various policy issues. Th~ Commission's st~ff h~s had substantial experience in considering competitive restrictions on commercial practices in the ~rea of eye.care, Inclu~lng the ~ver-the-counter sale of ready-to-wear readlng glasses. Accordlng1y, we offer our comments in the hop~ that th~y will aid the New York legislature In it~ deliberations ~oncerning A. 4801. II. B~ckground Ready-to-wear simple magnification r~ading glasses are primarily used to rem~dy a common condition known as "p~esbyop-ia," which generally affects people over age 40. .- 2 See, e.g., Trad~ Regulation Rule on Advartising of Ophthalmi~ Goods and Services, 16 C.F.R. Part 456 (1987); Bureau of Consumer Protection, Federal Trade Commission, Ophthalmic Practice Rules: State Restrictions on Commercial Practice (1986); Bureaus of Consumer Protection and Economics, F~d~ral Trade Commission, A Comparative Analysis of Cosmetic Contact Lens Fitting by Ophthalmologists, Optometrists, and Opticians (1983); Bureau of Economics, Federal Trade Commission, Effects of Restrictions on Advertising and Commercial Pra~tices in the Professions: The ' .. Case of Optometry (1980); Bureau of Consumer Protec~ion, Feder~l Trade Commission, State Restrictions on vision Care Provid~rs: --The Effects on Consumers (1980). ~.- '.
·,I .' Ms. Shay Bergin -.~ - :r-- P~~~byopia is the decreased ability of the norm~l eye to focus on near objects and print~d rudterial. Millions of middle-aged and cl<J~cly persons remedy this problem by purcha:3ing non- prescription, over-the-counter readiny gl~s5es at department stores, drug stores, and oth~[ r~tail outlets. Consumers can select the appropriate glasses simply by trying on different pairs and finding the ones offering the most effective mClynific;;ttio/l lev<:l. The market for ready-lo-wear reading glasses is substantial -- cu~rently accounting foe estimated sales of S100 million annually. The products come in differ~nt magnifying _ st~~ngths and generally range in price from $12 to $15 a ~air. In contrast, prescription reading glasses are more costly. Although prescription glasses, too, often involve simple magnification, they are accompanied by prof~ssional services such as lens grinding and fitting into frames. Prescription reading glasses generally range in price from about $25 to $75 a pair. _ New York is one of only four states th~t prohibits the sale of non-prescription reading glasses. 4 The proposed legislation would amend New York law to enable ~ew York consumers to purchase these glasses over-the-counter and thus benefit from the availability of this lower cost alternative. I I 1. Current Law Raises Costs Without Countervailing Benefits; The Pro osed Amendment Enhances Consumer C)oice and Saves Consumer Dollars 3 Th~ cu(r~nt New York prescription requirement increases consumer costs in two ways. First, consumers must bear the cost of i->U n:bdS i ny pro [~ss i onal exam ina t ion ser vices they might not .Dtherwtse need or desire. S~cond, consumers must pay the higfi~r pr ice charged for prescr iption lenses in 'the abs~nc~ of effective comi->etition from more economical cslternatives. There do not appear to be Hignificdnt countervailing benefits associated with the current law that would justify "Spectacles: Legislative Fine Print," New York Times, March 25, 1987, at 42. S~e also State Restrictions on Vision Care Providers: The Effects on Consumers, supra note 3, at lJ~. 4 The other states are Louisiana, Minnesota and ~hode Island. (Minnesota restricts only high magnification reading glasses). - -......-
Ms. Shay Bergin -.~ - 4 - depriving consumers of the freedom to choose this lower cost alternativ~. Proponents or the prescription requirement argue that consumers are benefited by the intervention of an eye care professional who can determine whether presbyopia is accompanied by~ more serious prOblem. However, if a person has symptoms of eye problems other than simple presbyopia, these symptgms will generally continue despite the use of reading glasses. Consequently, persons would not be deterred from seeking proper medical attention as a result of their over-the-counter purcha~e. At most, they may delay securing medicd; cace addressing these symptoms for only a brief period. During our examination of over-the-counter ready-to-wear eyeglass restrictions, we have found no reliable evidence that suggests that consumers have been injured by the availability o~ ready-~o wear reading glasses in those 46 states that allow thea sale. -----_._--_._-- 5 For example, Dr. Calvin W. Roberts, the Director of Cornea Services at Cornell Medical Center, has expressed the view that reading glasses will not mask eye diseases or other defects and do not caU3C consumers to forego seeking professional help for such conditions. Accordiny to Dr. Roberts, a consumer with an eye problem other than or in addition to pregbyopia would realize immediately upon obtaining reading glasses that such glasses were an i~adequate remedy for the problem. See Affidavit of Dr. Calvin W. Roberts, M.D., Assistant Professor, Attending Surgeon, and Director of Cornea Services at New York University Hospital- Cornell Medical Center (Sept. 30, 1985). (Dr. Roberts' affidavit, designated Exhibit E, is contained in the record compiled by the New York legislature). See also St~te RestLicIions on Vision Care providers: The Effects on Consume~s, supra note 3, at 138. 6 An apt analogy may be the use of over-the-counter analgesics to treat headaches. A headache may merely be a medically insignificant discomfort, or it may be a symptom of a serious disorder. Nevertheless, New York doe~ not ban the sale of OVQr- the-counter headache remedies. 7 The Commission sought comment on the effects on consumers of state restrictions on the over-the-counter sale of ready-to-wear readiny ylasses, in conjunction with other issues, in its Eyeglasses II Advance Notice of proposed RUlemaking (45 Fed. Reg. 79823 (1980». This aspect of the rulemaking was closed in 1984, however, because of the small number of states involved and incon~lusive information on this issue. -~.-
M~. Shay Bergin - 5 -
.~
While some eye care professionals may nonetheless
b~lieve that profess1onal interventiun dnd supervizion of
consumers' purchasin~ decisions is ~r~f~rable, it is the consumer
who bears the substantial financial burden of additional
precautions. A. 4801, by amending New York law to make reading
glasses available ovor-the-counter, will eliminate serious
restrictions on competition and will expand the range of consumer
choice.
I V • .: proposed Specific Mandatory Disclosures May Not
Optimally Serve Consumer Interests
Consumer chuice and competition are enhanced when
accurate, relevant information is made available in the
marketplace. Indeed, certain information may be essential to
enable consumers to make reasoned, safe choic~s. Although
disclosure of such informa5i~n ~hould be ~ncoura~ed, and in some
instances may be required, lt Ui never wlthout lts costs. Thccc
costs are usually passed on to consumers in the form of higher
prices. Consequently, disclosure requirements should be imposed
only where the benefit8 of the disclosure demonstrably outweigh
their costs. This does not appear to be the case in the proposed
legislation.
A. 4801 would r~guire a specific affirmative
disc~osure. In all print advertising of non-prescription reading
glasses, and at the point of sale, the proposed legislation would
requir~ the following notice:
ATTENTION; READY-TO-WEAR, NON-PRESCRIPTION READING
GLASSES ARE NOT INTENDED TO REPLACE PRESCRIBED ~
CORRECTIVE LENSeS OR EXAMINATIONS BY AN EYE CAR~
-_._------
8 The Federal Trade Commissiun has (~quired disclosures as a
remedy where necessary tu avoid consumer injury, such as where
cun::sumers ar~ likely tu be d~ceived without the disclosure or
otherwise confronted with a serious safety hazard. See, e.g.,
Thompson Medical Co., 104 P.T.C. 648 (1984), aff'd, 791 F.2d 189
(D.C. Cic. 1986), cert. denied, 55 U.S.L.W. 3369 {Feb. 23,1987)
(affirmative disclosure ordered to remedy misrepresentations
regarding health products); Figgie Int'l, Inc., 107 F.T.C. 313 ' ..
(1986), aff'd 4th Circuit, No. 86-3075 (April 21, 19~7)
(affirmative disclosure ordered to remedy deception with regard
-to fire safety devices) •
...... _. ...
I Ms. Shay Bergin -.. ~ - 6 - PROfESSIONAL. CONTINUOUS EYE CHECK-UPS ARE NECESSARY TO DETERMINE YOUR EYE HEALTH STATUS AND VISION NEEDS. The disclosure at the point of sale (whether on a display, or, if ther~ is no display, in the area of sale) must be in at least lO-point bold type. The specific d18clo~ure contain~d in A. 4801 is likely to add to the co~t of selling oVt::!t-the-countel."" reading glasses. Any disclpsure obligation increases advertising costs, either because it increases the length of the message or requires suppliers to forego some portion of the advertising message_they wou15 have delivered had the space not been taken by the discl6sure. Unnecessary disclosure requirement~ could therefore result in less information being m~de available to consumers. In addition, because New York will be the sole state to require specific disclosures in advertisements as well as at point of sale, sellers may be required to create and print separate advertisements and point-of-sale display3 for that market. Resulting costs may be ~ub~tantial because advertisers will be required to produce multiple versions of advertisements and point-of-sale di~plays. Tht::!se costs could become prohibitive if olher states were to follow suit with additional, and different, disclosur~ reguir~ments. It is noteworthy that tht::! overwhelming majority of states-have long permitted the sale of r~ady-to-wear re~ding glasses without requiring any di$~losur~. Of the 46 states permitting the sale of non-prescription reading glasses, only one, Massachusetts, requires a specific disclosur~ stating - t'sst'otially that the 91as~es are not a substitute for an eye t'xGimination and corrective lenses. However, unlike the propo3cd New York provision, which would require affirmativ~ disclosures -~.-
Ms. ShllY Bergin in-~ll advertisiny and at point of s~le, the Massachusetts provision requires disclosur~ only at the point of sale. 9 .~ - 7 - Against the costs of New York's proposed disclosure reQuirement we must weigh the b~n~fits afforded consumers by the proposed disclo~ut~. We do not believe that the disclosure offers any substantial benefits because the market is already providing consumers with relevant eye care information without regulatory intervention. At least some major suppliers of reading. glasses voluntarily inform consumerj that their product is not a substitute for an eye examination. 0 If such suppliers were required to adhere to specifi~ disclosure language, they wou1d lose the flexibility to ~onvey useful information in a. manner most efficient for them, would incur increased advertising costs, and might ultimately fac~ varying state disclosure requirements. This may not only result in a higher price for 9 TIl~ Massachusetts provision reads as follows: [A) seller of said ready-to-wear magnifying spectacles or eyeglasses shall have the following notice permanently affiXed in plain view to the top of any point of sale display or, if there is no such display, in the area of sale: These magnifiers are not intended to be a ~ubstitute for corrective lenses; only a professional eye examination can determine your eye health status and vision needs. Mass. Ann. Laws ch. 112, S 73M (Law. Co-op. Supp. 1987). Note also that the Minnesota state legislature recently. voted in favor of ~ bill relating to reading glass~s which w~~ld 'require a disclosure at the point of sale stating as follows: "It you have experienced a vision loss the selection of these glasses ~huuld not take the place of an eye exam." 10 For example, in a brochure accompanying its reading glasses, the Foster Grant Corporation advises consumers that they should "absolutely not" bypass the eye care professional, dnd that "regular eye examinations" are recommended for "everybody, especially those over 40 years of age." A brochure accompanying Maynivision reading glasses made by AI-Site Corporation also contains extensive disclosures. This brochure states: "It should be emph~$i~ed that ready-to-wear gl~sBes aren't intend~cl to replace examinations by an eye doctor. Contin~ous eye ch~ck ups, especially after the age of 40, will maintain the health oj your eyes." -~.-
Ms. Shay Dergin
.-
- 8 -
the-product, but also may have a chilling effect on suppliers'
national or regional advertising efforts. Th~ result may be more
detrimental than bcn~ficial to consumer interests.
Moreover, there are oth8rs who have a strong interest
in making this lnformation available. Providers of eye care
services themselves have ample incentive to promote their
services through advertising and otherwise. Indeed, the Federal
Trade Commission has made considerable efforts to ensure that eye
car~ profe~sioniis are not hampered in their freedom to advertise
thelr serVice::; .
.- Nonetheless, should the New York legislature dct;rm~ne
to require some form of disclosure to the effect that reading
glasses are not a substitute fur an eye examination, we suggest
alternatives that may accomplish the bill's objectives at a lower
cost.
In lieu of mandating specific disclosures and a
required tormat, A. 4801 might be modified to require a general
disclosure, stated in "clear and conspicuuus" language, to the
effect that reading glasses are not a substitute for prescribed
glasses or eye check-Ups. Such a disclosure would provide the
desired intormation without requiriny manufacturers to print
different documents on a state-by-state basis.
.. In addition, we recommend that this disclosure
requirement be limited to the point of sale. Such a lower cost
alternative would still proviae consumers with information at
time of purchase and would alert them to the value of gathering
additional information it their condition so warranted. If
A. 4801'5 disclosure provisions are modified in this way, the
.-
11 See, e.g., American Academy of O~tometrYI Inc.,
FTC slip op., No. C-3193 (July 21, 186) {consent order requiring
Academy to refr~in from restricting truthful advertising}:
Oklahoma Optometric Ass'n, 106 F.T.C. 556 (1985) (consent order
requiring Association to cease prohibiting members' truthful
advertising of prices, terms and availability of services or
goods); Michigan Optometric Ass'n, 106 F.T.C. 342 (1985) (consent
order requiring Assoclatlon to cease prohibiting or restraining
any optometrist from disseminating truthful, non-deceptive
information); Montana Bd. of Optometrists, 106 F.T.C. 80 (1985}.
(consent order requiring Board to cease adopting or maintaining
any rule or policy that has the effect of prohibitlng or .
discouraging price-related advertising).
-4i:-. _
< • 2122640459 ·P.10 - --- -.~ Ms. Shay Bergin - 9 costs of disclosure and attendant increas~s in the cost of the product could be reduced. V. Conclusions We support the proposed legislation to make simple magnific~tion r~dding gl~sses available ~ithout a preMcription, 3S is the case in 46 stat~$. Nevertheless, we c3ution that the proposed ~equired advertising disclosures may add unnecessary costs to the product. Should the legislature determine to adopt a dis~losure requirem~nt, it may wish to consider the modifica- tions 'discussed abov~. We believe the enactment of A. 4801 as so modified would satisfy the intent of the bill's framers without imposing excessive costs On ~onsumers. We hope that our comments hav~ been of assistance in the deliberation::; ~oncerning this legislation. Please do not hesit3te to contact us if you hdve any questions or would like further information. Very truly yours, ~ FL~(7f~/~( Edward Manno Shumsky '-_._--~-~_._ Regional Dir~ctor .- , \ I
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