FTC Staff Comment to the Hon. John A. Lynch Concerning New Jersey S.B. 1367 to Permit Opticians to Fit Contact Lenses After Obtaining Certification

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BUREAU OF
CONSUMER PROTECTION
May 14, 1987
The 	Honorable 	John 	A. 	Lynch
Majority 	Leader
New 	Jersey 	Senate
96 	Bayard 	Street
New 	Brunswick, 	New 	Jersey 	08901
Dear Mr. 	Lynch:
We 	are 	pleased 	to 	respond 	to 	your 	request 	for 	comments 1 	on
pro~osed Senate 	Bill 	No. 	1367, 	which 	would 	permit 	opticians 	to
fit 	contact 	lenses 	provided 	that 	they 	first 	obtain 	certification
as 	contact 	lens 	dispensers 	from 	the 	state 	board 	of 	opticians. 3
While 	we 	express 	no 	specific 	opinion 	on 	the 	need 	for 	the 	proposed
certification 	program, 	we 	do 	believe 	that 	allowing 	opticians 	to
fit 	contact 	lenses 	is 	likely 	to 	benefit 	consumers 	by 	increasing
competition 	and 	lowering 	prices 	for 	contact 	fitting 	services,
without 	impairing 	the 	quality 	of 	eye 	care. 	We 	therefore 	support
that 	portion 	of 	the 	bill.
The 	Federal 	Trade 	Commission 	is 	charged 	with 	maintaining
competition 	and 	protecting 	consumers 	from 	restraints 	of 	trade. 4
In 	accordance 	with 	this 	role, 	the 	Commission 	seeks 	to 	encourage
competition 	among 	licensed 	professionals, 	including, 	among
others, 	opticians 	and 	optometrists. 	The 	Commission's 	goal 	is 	to
assist 	the 	states 	in 	identifying 	and 	removing 	restrictions 	that
limit 	competition 	and 	increase 	costs 	without 	improving 	the
quality 	of 	care 	or 	providing 	other 	countervailing 	consumer
benefits.
1 	These 	comments 	represent 	the 	views 	of 	the 	Commission's
Bureaus 	of 	Consumer 	Protection, 	Economics, 	and 	Competition, 	and
do 	not 	necessarily 	represent 	the 	views 	of 	the 	Commission 	itself.
The 	Commission 	has, 	however, 	voted 	to 	authorize 	us 	to 	submit
these 	comments 	to 	you.
2 	The 	process 	of 	fitting 	contact 	lenses 	includes 	taking
measurements 	to 	determine 	the 	size, 	shape 	and 	specifications 	of.
contact 	lenses 	and 	adjusting 	the 	contact 	lenses 	to 	the 	patient's
eyes.
3 	The 	bill 	creates 	standards 	for 	such 	certification,
including 	additional 	educational 	requirements.
4 	See 	15 	U.S.C. 	§41 	et. 	seq.
Bicentennial of the L'nited State~ Constitution
11787-1 ~87)

,
•
We 	believe 	that 	a 	restriction 	preventing 	opticians,
regardless 	of 	their 	qualifications, 	from 	fitting 	contact 	lenses
may 	have 	this 	effect. 	Such 	a 	restriction 	presently 	exists 	in 	New
Jersey. 	Opticians 	are 	prohibited 	from 	fitting 	contact 	lenses,
which 	can 	only 	be 	done 	by 	optometrists 	and 	ophthalmologists.
This 	law 	clearly 	limits 	competition 	among 	members 	of 	these
groups, 	and, 	in 	consequence, 	is 	likely 	to 	increase 	prices 	and
decrease 	the 	availability 	of 	contact 	lens 	fitting 	services. 5
Allowing 	opticians 	to 	enter 	this 	market 	can 	be 	expected 	to 	force
all 	types 	of 	providers 	of 	contact 	lens 	fitting 	services,
including 	optometrists 	and 	ophthalmologists, 	to 	lower 	their
prices.
We 	believe 	that 	such 	competition 	is 	unlikely 	to 	have 	any
adverse 	effects 	on 	the 	quality 	of 	eye 	care 	provided 	to 	consumers.
A 1983 	FTC 	staff 	study 	("Contact 	Lens 	Study"), 	which 	was 	designed
to 	examine 	whether 	bans 	on 	contact 	lens 	fitting 	by 	opticians 	are
necessary 	to 	protect 	the 	pUblic, 	supports 	this 	conclusion. 6 	The
study 	examined 	the 	quality 	of 	cosmetic 7 	contact 	lens 	fitting
among 	four 	types 	of 	eye 	care 	providers: 	opticians,8 	private
5 	This 	conclusion 	about 	the 	relationship 	between 	price 	and
restrictions 	on 	competition 	is 	supported 	generally 	by 	economic
analysis 	and 	by 	numerous 	studies. 	See,~, 	Bureau 	of
Economics, 	Federal 	Trade 	Commission, 	Restrictions 	on 	Advertising
and 	Commercial 	Practice 	in 	the 	Professions: 	The 	Case 	of
Optometry 	(1980).
6 	Bureaus 	of 	Consumer 	Protection 	and 	Economics, 	Federal
Trade 	Commission, 	A Comparative 	Analysis 	of 	Cosmetic 	Contact 	Lens
Fitting 	by 	Ophthalmologists, 	optometrists 	and 	Opticians 	(1983).
A copy 	of 	this 	report 	is 	attached.
7 	The 	Contact 	Lens 	Study 	covered 	only 	cosmetic 	contact
lenses 	-- 	lenses 	which 	are 	worn 	as 	an 	alternative 	to 	eyeglasses
in 	correcting 	vision. 	It 	did 	not 	cover 	therapeutic 	lenses, 	which
may 	be 	required 	for 	various 	medical 	reasons 	other 	than 	the 	simple
correction 	of 	vision, 	such 	as 	for 	cataract 	surgery 	patients. 	The
study 	also 	did 	not 	cover 	types 	of 	lenses 	which 	have 	only 	recently
become 	available, 	such 	as 	extended 	wear 	lenses. 	Therefore, 	the
stUdy 	provides 	no 	evidence 	indicating 	that 	opticians 	can 	fit 	such
lenses 	as 	well 	as 	other 	providers. 	On 	the 	other 	hand, 	we 	know 	of
no 	evidence 	that 	opticians 	generally 	provide 	lower 	quality
fitting 	of 	these 	lenses.
8 	The 	opticians 	included 	in 	the 	study 	were 	permitted, 	under
the 	laws 	of 	their 	states, 	to 	fit 	contact 	lenses.
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optometrists, 	commercial 	optometrists 9 	and 	ophthalmologists. 	The
study 	found 	that 	there 	was 	no 	significant 	difference 	in 	the
quality 	of 	cosmetic 	contact 	lens 	f~tting performed 	by 	the
different 	classes 	of 	providers. 10
The 	survey 	was 	carried 	out 	with 	the 	assistance 	of 	the 	major
eye 	care 	professional 	organizations 	-- 	the 	American 	Academy 	of
ophthalmology, 	the 	American 	Optometric 	Association, 	and 	the
Opticians 	Association 	of 	America. 	The 	association
representatives 	agreed 	upon 	the 	appropriate 	procedures 	to 	use 	and
standards 	to 	apply 	in 	examining 	the 	eyes 	of 	the 	study 	subjects.
The 	study 	included 	over 	500 	cosmetic 	contact 	lens 	wearers 	located
in 	18 	urban 	areas 	across 	the 	country.
All 	of 	the 	survey 	SUbjects 	had 	been 	fitted 	with 	contact
lenses 	within 	the 	preceding 	three 	years 	and 	were 	still 	wearing
them. 	An 	ophthalmologist, 	an 	optometrist, 	and 	an 	optician
examined 	the 	SUbjects 	for 	the 	presence 	of 	seven 	potentially
pathological 	conditions 	that 	are 	commonly 	associated 	with
improper 	contact 	lens 	fitting. 	The 	procedures 	closely 	resembled
those 	used 	by 	contact 	lens 	fitters 	to 	perform 	"follow-up"
evaluations 	of 	their 	patients. 	The 	findings 	of 	the 	examiners 	for
each 	of 	the 	seven 	cond~~ions for 	each 	eye 	were 	used 	to 	create 	a
summary 	quality 	score 	for 	each 	subject, 	which 	indicated 	the
overall 	health 	of 	the 	subject's 	eyes. 	The 	study 	also 	examined
the 	presence 	or 	absence 	of 	each 	of 	the 	seven 	eye 	conditions
individually. 	Expert 	statistical 	consultants 	and 	the 	FTC 	staff,
including 	economists 	with 	extensive 	expertise 	in 	survey 	research
and 	analysis, 	then 	analyzed 	the 	study 	data.
The 	findings 	of 	the 	study 	indicate 	that 	restrictions 	on
contact 	lens 	fitting 	by 	qualified 	opticians 	appear 	to 	be
unnecessary 	to 	protect 	the 	public. 	The 	study 	found 	that 	the
quality 	of 	cosmetic 	contact 	lens 	fitting 	provided 	by 	opticians
was 	comparable 	to 	that 	provided 	by 	ophthalmologists 	and
optometrists. 	We 	are 	aware 	of 	no 	reliable 	contrary 	evidence
indicating 	that 	restrictions 	on 	contact 	lens 	fitting 	by 	opticians
benefit 	consumers. 	Consequently, 	these 	restrict~ons are 	likely
to 	result 	in 	consumer 	injury 	by 	reducing 	competition 	without
providing 	countervailing 	consumer 	benefits.
9 	Commercial 	optometrists 	included 	those 	who 	were
associated 	with 	chain 	optical 	firms, 	used 	trade 	names 	or
practiced 	in 	commercial 	locations.
10 	The 	study 	also 	examined 	the 	prices 	of 	cosmetic 	contact
lens 	fitting 	services 	and 	found 	that 	there 	was 	a 	wide 	range 	in
prices. 	On 	average, 	ophthalmologists 	charged 	the 	highest 	prices,
opticians 	and 	non-commercial 	optometrists 	the 	next 	highest
prices, 	and 	commercial 	optometrists 	the 	lowest.
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..,
•
As 	to 	licensing 	and 	certification, 	the 	Contact 	Lens 	Study
included 	opticians 	both 	from 	states 	that 	do 	and 	do 	not 	license
opticians, 	but ,the 	data 	has 	not 	been 	analyzed 	to 	determine
whether 	unlicensed 	opticians 	can 	fit 	contact 	lenses 	as 	well 	as
licensed 	opticians. 	We 	express 	no 	opinion 	as 	to 	the 	need 	for 	the
bill!s 	certification 	requirements, 	but 	would 	like 	to 	raise 	two
points 	that 	may 	be 	helpful 	in 	your 	deliberations. 	First, 	any
licensing 	or 	state 	certification 	requirements 	will 	necessarily
limit 	competition 	by 	restricting 	entry. 	We 	suggest 	careful
examination 	of 	the 	proposed 	requirements 	to 	ensure 	that 	they 	go
no 	further 	than 	necessary 	to 	ensure 	quality 	of 	care.
Second, 	you 	may 	wish 	to 	consider 	whether 	the 	statutory
certification 	requirements 	are 	as 	precise 	and 	specific 	as
possible, 	or 	whether 	they 	instead 	vest 	unnecessary 	discretion 	in
the 	certifying 	board. 	For 	example, 	a 	certification 	standard 	tnat
requires 	"completion 	of 	any 	educational 	programs 	required 	by 	the
board," 	may 	not 	provide 	sufficient 	guidance 	to 	the 	board
respecting 	what 	types 	of 	programs 	the 	legislature 	has 	in 	mind.
Anticompetitive 	consequences 	would 	result 	if 	a 	board 	employed
such 	broad 	language 	for 	unduly 	restricting 	entry 	into 	the
pyo:ession.
In 	conclusion, 	we 	believe 	removing 	the 	current 	prohibition
against 	contact 	lens 	fitting 	by 	all 	opticians, 	regardless 	of
qualification, 	would 	benefit 	consumers 	by 	increasing 	competition
without 	producing 	any 	decrease 	in 	the 	quality 	of 	care. 	He
therefore 	support 	that 	portion 	of 	the 	bill. 	As 	to 	licensing 	or
certification 	for 	opticians 	who 	fit 	contact 	l~nses, 	we 	suggest
that 	you 	carefully 	assess 	any 	such 	requirements 	to 	ensure 	tha~
they 	are 	as 	narrow 	and 	specific 	as 	possible.
We 	appreciate 	having 	had 	this 	opportunity 	to 	give 	you 	our
views. 	Please 	let 	me 	know 	if 	we 	can 	provide 	you 	with 	any
additional 	information, 	or 	can 	be 	of 	further 	assistance 	in 	any
other 	way.
Sincerely,
Ju ~U ('CUM 	L(~ (.. 	L~b cl
William 	MacLeod
Director
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