FTC Staff Comment Before the Virginia Board of Veterinary Medicine Concerning Regulations to Remove Restrictions on Advertising and Non-Veterinarian Relationships

BUREAU OF
CONSUMER PROTECfION
FEDERAL TRADE COMMISSION
WASHINGTON. D. C. 20580
COMMISSION
APPROVED .J
April 	10, 	1986
f1rs. 	!·10ira 	Lux
Executive 	Director
Vir~inia Board 	of 	Veterinary 	Medicine
517 	West 	Grace 	Street
P.O. 	Box 	27708
Richmond, 	Virginia 	23261
Dear 	Mrs. 	Lux:
The 	Federal 	Trade 	Commission's 	BUreaus 	of 	Consumer
Protection, 	Economics, 	and 	Competition 	are 	pleased 	to 	submit
this 	letter 	in 	response 	to 	your 	request 	for 	public 	comments 	on
the 	r~gulatio~~ ~rop~sed for 	adoption 	by 	the 	Virginia 	Board 	of
Veterlnary 	MeQ1Clne.
As 	you 	are 	aware, 	we 	submitted 	comments 	in 	1984 	to 	Richard
Morrison, 	Regulatory 	Review 	Coordinator, 	and 	in 	1985 	to 	Ralph
Axselle, 	Chairman 	of 	the 	Governor's 	Regulatory 	Reform 	Advisory
Board, 	concerning 	laws 	and 	regulations 	gove 3nin g 	a 	number 	of
professions, 	includin9 	veterinary 	medicine. 	In 	the 	interest 	of
brevity, 	we 	will 	incorporate 	by 	reference 	portions 	of 	those
letters 	as 	indicated 	below.
We 	are 	pleased 	to 	note 	that 	the 	Board 	has 	responded 	to 	this
regulatory 	review 	process 	by 	proposing 	re~ulations that 	remove
burdensome 	restrictions 	on 	the 	ability 	of 	veterinarians 	to
1 	These 	comments 	represent 	the 	views 	of 	the 	Bureaus 	of 	Consumer
Protection, 	Economics, 	and 	Competition 	of 	the 	Federal 	Trade
Commission 	and 	do 	not 	necessarily 	represent 	the 	views 	of 	the
Commission 	or 	any 	individual 	Commisioner. 	The 	Commission,
however, 	has 	authorized 	the 	submission 	of 	these 	comments.
2 	Our 	comments 	are 	directed 	only 	to 	those 	provisions 	that 	deal
with 	advertising 	or 	commercial 	practices. 	We 	offer 	no 	opinion 	on
the 	legality 	or 	desirability 	of 	other 	portions 	of 	the 	proposed
regulations.
3 	Letter 	to 	Richard 	Morrison 	from 	Carol 	T. 	Crawford, 	Director,
Bureau 	of 	Consumer 	Protection, 	September 	14, 	1984 	(hereinafter
referred 	to 	as 	"Morrison 	letter"), 	and 	letter 	to 	Ralph 	Axselle
from 	Carol 	T. 	Crawford, 	Director, 	Bureau 	of 	Consumer 	Protection,
May 	22, 	1985 	(hereinafter 	referred 	to 	as 	"Axselle 	letter").
Copies 	of 	both 	letters 	are 	attached.

Mrs. 	Moira 	Lux 	-2-
advertise 	and 	to 	enter 	into 	business 	relationships 	with 	non-
veterinarians. 	We 	applaud 	the 	Board's 	effort 	and, 	with 	two
reservations 	noted 	below, 	we 	support 	adoption 	of 	the 	proposed
rules.
Advertising 	Regulations
The 	Board 	proposes 	to 	regulate 	advertising 	by 	veterinarians
through 	Rule 	2.4.E., 	which 	characterizes 	as 	unprofessional
conduct 	"advertising 	in 	a 	manner 	which 	is 	false, 	deceptive, 	or
misleading." 	We 	support 	the 	Board's 	proposal 	because 	we 	believe
this 	type 	of 	regulation 	protects 	consumers 	without 	imposing
restrictions 	on 	nondeceptive 	advertising. 	Bans 	on 	nondeceptive
advertising, 	in 	our 	experience, 	tend 	to 	result 	in 	higher 	prices
and 	a 	decrease 	in 	consumer 	welfare. 	Thus, 	we 	also 	endors~ the
Board's 	decision 	to 	eliminate 	two 	other 	rules-rnatprohibited
vet:e1:"ln'a~rTa:ns {rom 	disseminating 	truthful 	information 	about 	their
services. 	As 	we 	explained 	in 	our 	previous 	comments 	(Morrison
letter 	at 	pp.2-3 	and 	incorporated 	by 	reference 	herein), 	we 	0EPose
prohibitions 	on 	claims 	of 	superiority 	and 	blanket 	bans 	onthe' 	use
of··-solicitors 	because 	such 	restrictions 	deprive 	consu:nersof
information 	that 	may 	be 	useful 	to 	them 	in 	choosing 	veterinary
services 	and 	do 	not 	provide 	any 	offsetting 	benefits.
Co~~ercial Practice
We 	also 	suP?ort 	the 	Board's 	decision 	to 	eliminate 	rules 	that
prohibited 	veterinarians 	from 	entering 	into 	business
relationships 	with 	non-veterinarians 	and 	from 	leasing 	space 	from
co~~ercial establishments. 	As 	we 	noted 	in 	prior 	comments
(Morrison 	letter 	at 	p.4 	and 	incorporated 	by 	reference 	herein), 	we
object 	to 	such 	restrictions 	beca~se we 	believe 	that 	these 	kinds
of 	limitations 	reduce 	competition 	in 	health 	care 	markets. 	They
prevent 	veterinarians 	from 	entering 	into 	relationships 	that 	may
lower 	costs 	and 	result 	in 	increased 	savings 	for 	consumers,
without 	adversely 	affecting 	the 	quality 	of 	care 	provided.
The 	Board 	has 	proposed 	Rule 	2.4.B., 	which 	would 	make 	it
unprofessional 	conduct 	for 	a 	veterinarian 	to 	practice 	where 	an
unlicensed 	person 	has 	the 	authority 	to 	control 	the 	professional
judgment 	of 	the 	veterinarian. 	When 	this 	regulation 	was 	first
proposed 	as 	Rule 	2.3.B., 	we 	acknowledged 	that 	the 	Board 	might
have 	legitimate 	concerns 	about 	the 	control 	of 	unlicensed 	persons
over 	the 	quality 	of 	care 	rendered 	by 	veterinarians. 	However, 	we
suggested 	in 	our 	earlier 	comments 	(Axselle 	letter 	at 	pp.lS-l7 	and
incorporated 	by 	reference 	herein) 	that 	the 	Board 	adopt 	a 	slightly
modified, 	and 	in 	our 	view 	clearer, 	version 	of 	this 	rule. 	The
mOdification 	would 	restrict 	the 	employment 	of 	veterinarians 	by
non-veterinarians 	where 	the 	non-veterinarian 	seeks 	to 	compromise
the 	judgment 	of 	the 	veterinarian 	in 	ways 	that 	actually 	may 	lower
the 	quality 	of 	care 	rendered 	by 	the 	veterinarian. 	We 	continue 	to
encourage 	the 	Board 	to 	make 	this 	clarification 	to 	the 	proposed
rule.

~rs. 	Moira 	Lux 	-3-
Finally, 	proposed 	Rule 	4.1.8.1 	appears 	to 	be 	inconsistent
with 	the 	Board's 	decision 	to 	remove 	other 	restrictions 	on
commercial 	practice. 	This 	provision 	states 	that 	the 	Board 	will
not 	register 	an 	animal 	facility 	unless 	a 	veterinarian 	is 	the
owner, 	partner, 	or 	officer 	of 	the 	facility. 	This 	appears 	to
preclude 	the 	employment 	of 	a 	veterinarian 	by 	a 	non-veterinarian,
even 	in 	situations 	where 	the 	veterinarian's 	professional 	judgment
is 	not 	controlled 	by 	the 	non-veterinarian. 	We 	urge 	the 	Board 	to
eliminate 	or 	modify 	Rule 	4.1.8.1 	so 	that 	veterinarians 	are 	not
barred 	indirectly 	from 	working 	as 	employees 	of 	non-veterinarians.
Conclusion
With 	the 	exception 	of 	our 	stated 	concerns 	with 	Rules 	2.4.B.
and 	4.1.8.1, 	we 	strongly 	support 	adoption 	of 	the 	proposed
rules. 	If 	adopted, 	these 	regulations 	could 	result 	in 	real 	and
substantial 	benefits 	for 	consumers. 	They 	would 	protect 	the
public 	from 	false 	or 	deceptive 	advertising 	without 	depriving
consumers 	of 	a 	wide 	range 	of 	useful 	information 	about 	veterinary
services. 	They 	would 	help 	to 	stimulate 	competition 	among
veterinarians 	and, 	in 	the 	process, 	improve 	the 	efficiency 	with
which 	veterinarian 	services 	are 	delivered.
Yours 	truly,
~6f~/H
Amanda 	B. 	Pedersen
Acting 	Director
Enclosures

FEDERAl TRADE COMMISSION
WASHINGTON. D. C. 20680
Bl1U.AVOr
CONSUMU l'Il.OTECI1ON
September 	14, 	1984
Mr. 	Richard 	Morrison
Department 	of 	Health 	Regulatory 	Boards
Commonwealth 	of 	Virginia
517 	West 	Grace 	Street
P.O. 	Box 	27708
Richmond, 	VA 	23261
Dear 	Mr. 	Morrison:
The 	Federal 	Trade 	Commissi~nls Bureaus 	of 	Consumer 	Protec-
tion, 	Economics 	and 	Competition 	are 	pleased 	to 	respond 	to 	your
invitation 	to 	assist 	you 	in 	your 	review 	of 	the 	statutes 	and 	regu-
lations 	enforced 	by 	the 	Virginia 	State 	Board 	of 	Optometry 	and
Veterinary 	Medicine 	by 	providing 	comments 	concerning 	the 	competi-
tive 	effects 	of 	various 	restrictions 	on 	optometrists 	and 	veteri-
narians.
The 	Federal 	Trade 	Commission 	seeks 	to 	promote 	the 	national
policy 	of 	encouraging 	competition 	among 	members 	of 	licensed 	pro-
fessions 	to 	the 	maximum 	extent 	compatible 	with 	other 	legitimate
state 	and 	federal 	goals. 	For 	several 	years, 	the 	Commission 	has
been 	investigating 	the 	effects 	of 	restrictions 	on 	the 	business
practices 	of 	professionals, 	including 	optometrists, 	dentists,
lawyers, 	physicians 	and 	others. 	Our 	goal 	is 	to 	identify 	and 	seek
the 	removal 	of 	such 	restrictions 	that 	impede 	competition,
increase 	costs 	and 	harm 	consumers 	without 	providing 	countervail-
ing 	benefits. 	In 	offering 	these 	comments, 	we 	acknowledge 	that 	we
are 	not 	in 	a 	position 	to 	offer 	advice 	on 	what 	minimum 	level 	of
quality 	of 	care 	the 	states 	should 	require.
I. 	Restrictions 	on 	Advertising 	by 	Optometrists 	and 	Veterinarians
Advertising 	"serves 	to 	inform 	the 	public 	of 	the 	avail-
ability, 	nature, 	and 	prices 	of 	products 	and 	services, 	and 	thus
performs 	an 	indispensable, 501e 	in 	the 	allocation 	of 	resources 	in
a 	free 	enterprise 	system.· 	Because 	of 	the 	significant 	benefits
1 	These 	comments 	represent 	the 	views 	of 	the 	Bureaus 	of 	Consumer
Protection, 	Economics 	and 	Competition 	of 	the 	Federal 	Trade 	Com-
mission 	and 	do 	not 	necessarily 	r~present the 	views 	of 	the 	Federal
Trade 	Commission 	or 	any 	individual 	Commissioner. 	The 	Federal
Trade 	Commission, 	however, 	has 	reviewed 	these 	comments 	and 	has
voted 	to 	authorize 	their 	presentation.
2 Bates 	v. 	State 	Bar 	of 	Arizona, 	433 	U.S. 	350, 	364 	(1977).

tnat 	can 	accrue 	to 	consumers 	from 	nondeceptive 	advertising, 	we
believe 	that 	only 	false 	and 	deceptive 	advertising 	should 	be 	pro-
hibited. 	Any 	other 	standard 	is 	likely 	to 	suppress 	potentially
useful 	information 	and 	may 	well 	contribute 	to 	an 	increase 	in
prices. 	Studies 	have 	shown 	that 	prices 	for 	professional 	services
are 	l~wer 	where 	advertising 	exists 	than 	where 	it 	is 	prohib-
ited. 	Studies 	have 	also 	shown 	that 	advertising, 	whic2 	leads 	to
lower 	prices, 	does 	not 	lead 	to 	lower 	quality 	services. 	There-
fore, 	to 	tne 	extent 	that 	nondeceptive 	advertising 	is 	restricted,
higher 	prices 	and 	a 	decrease 	in 	consumer 	welfare 	may 	well 	result.
Certain 	provisions 	of 	the 	statutes 	and 	regulations 	governing
the 	practice 	of 	optometry 	and 	veterinary 	medicine 	in 	Virginia 	do
restrict 	truthful 	advertising. 	For 	example, 	virginia 	Code 	SS 	54-
388(A)(2)(d) 	and 	54-396(9)(ii) 	prohibit 	optometric 	advertising
that 	"directly 	or 	indirectly" 	contains 	a 	claim 	of 	"professional
superiority." 	Similarly, 	the 	Board 	of 	Veterinary 	Medicine's
Regulation 	l5-J 	defines 	as 	unprofessional 	conduct 	any 	advertising
that 	"directly 	or 	indirectly 	makes 	claims 	of 	professional
superiority."
Such 	prohibitions 	on 	claims 	of 	superiority 	clearly 	lessen
rivalry 	among 	competing 	sellers, 	and 	the 	effects 	of 	the 	restric-
tion 	will 	depend 	on 	the 	extent 	to 	which 	it 	prevents 	the 	communi-
cation 	ot 	truthful 	information. 	At 	a 	minimum, 	a 	prohibition 	on
advertisements 	that 	contain 	claims 	of 	superiority 	restricts 	com-
parative 	advertising, 	which 	can 	be 	a 	highly 	effective 	means 	of
informing 	and 	attracting 	customers 	and 	an 	important 	competitive
force. 	When 	a 	seller 	cannot 	compare 	the 	attributes 	of 	his 	or 	her
service 	to 	those 	of 	his 	or 	her 	competitors, 	the 	incentive 	to
improve 	or 	to 	offer 	different 	products, 	services, 	or 	prices 	is
likely 	to 	be 	reduced.
3 	Bureau 	of 	Economics, 	Federal 	Trade 	Commission, 	Effects 	of
Restrictions 	on 	Advertising 	and 	Commercial 	Practice 	in 	the 	Pro-
fessions: 	The 	Case 	of 	Optometry 	(1980) 	(discussed 	at 	pp. 	5-7
below): 	Benham 	& Benham, 	Regulating 	through 	the 	Professions: 	A
Perspective 	on 	Information 	Control, 	18 	J.L. 	& Econ. 	421 	(1975);
Benham, 	The 	Effects 	of 	Advertising 	on 	the 	Price 	of 	Eyeglasses, 	15
J.L. 	& Econ. 	337 	(1972).
4 	Bureau 	of 	Economics, 	Federal 	Trade 	Commission, 	Effects 	of
Restrictions 	on 	Advertising 	and 	Commercial 	Practice 	in 	the
Professions: 	The 	Case 	of 	Optometry 	(1980) 	(discussed 	at 	pp. 	5-7
below); 	J. 	Cady, 	Restricted 	Advertising 	and 	Competition: 	The
Case 	of 	Retail 	Drugs 	(1976); 	McChesney 	& Muris, 	The 	Effects 	of
Advertising 	on 	the 	Quality 	of 	Legal 	Services, 	65 	A.B.A.J. 	1503
(1979); 	Muris 	& McChesney, 	Advertising 	and 	the 	Price 	and 	Quality
of 	Legal 	Services: 	Toe 	Case 	for 	Legal 	Clinics, 	1979 	Am. 	B.
Found. 	Research 	J. 	179 	(1979).
2

A ban 	on 	claims 	of 	superiority 	is 	likely 	to 	be 	even 	more
injurious 	to 	competition 	and 	consumers 	if 	interpreted 	to 	prohibit
a 	wider 	range 	of 	truthful 	claims. 	Virtually 	all 	statements 	about
a 	seller's 	qualifications, 	experience, 	or 	performance 	can 	be
considered 	to 	be 	implicit 	claims 	of 	superiority, 	and 	a 	ban 	on 	all
such 	claims 	would 	make 	it 	very 	difficult 	for 	a 	seller 	to 	provide
consumers 	truthful 	information 	about 	the 	differences 	between 	his
services 	and 	those 	of 	his 	competitors.
Virginia 	Code 	S 54-388(A)(2)(d) 	also 	prohibits 	the 	advertis-
ing 	of 	offers 	of 	free 	optometric 	services 	or 	examinations. 	We
are 	aware 	of 	the 	potential 	for 	"bait 	and 	switch" 	and 	other 	decep-
tive 	schemes 	in 	such 	advertising. 	However, 	we 	do 	not 	believe
that 	a 	total 	ban 	on 	the 	offering 	of 	free 	services 	is 	necessary.
Truthful 	advertising 	of 	the 	availability 	of 	free 	services 	can
obviously 	be 	of 	great 	benefit 	to 	consumers; 	also, 	such 	offers 	can
be 	a 	particularly 	valuable 	promotional 	tool 	for 	new 	practitioners
who 	are 	trying 	to 	enter 	the 	market.
Finally, 	Regulation 	15-1 	of 	the 	Board 	of 	Veterinary 	Medi-
cine's 	Rules 	and 	Regulations 	defines 	unprofessional 	conduct 	to
include 	"utilizing 	the 	services 	of 	solicitors." 	This 	rule 	may 	in
some 	instances 	impede 	the 	flow 	of 	truthful 	commercial 	information
from 	veterinarians 	to 	potential 	clients. 	Such 	restrictions 	on
the 	free 	flow 	of 	information 	may 	make 	it 	more 	difficult 	for
buyers 	to 	learn 	about 	differences 	in 	price 	and 	quality, 	thereby
insulating 	competitors 	from 	direct 	competition 	and 	reducing 	the
incentive 	to 	compete 	on 	the 	merits. 	Although 	a 	state 	may 	insist
that 	solicitors 	be 	held 	to 	the 	same 	standard 	of 	conduct 	as 	the
professionals 	that 	they 	represent, 	and 	a 	past 	pattern 	of 	abuses
may 	warrant 	regulations 	tailored 	to 	prevent 	specific 	abuses, 	a
blanket 	ban 	on 	the 	utilization 	of 	solicitors 	is 	overly 	broad 	to
be 	a 	justifiable 	form 	of 	professional 	regulation.
II. 	Restrictions 	on 	Other 	Business 	Practices 	by 	Optometrists 	and
veterinarians
Other 	provisions 	of 	the 	statutes 	and 	regulations 	governing
the 	practice 	of 	optometry 	in 	Virginia 	restrict 	business 	practices
other 	than 	advertising. 	For 	example, 	virginia 	Code 	S 	54-388
(A)(2)(i) 	prohibits 	the 	dividing 	of 	professional 	fees 	with 	non-
optometrists. 	This 	provision 	may 	restrict 	partnerships 	or 	other
business 	relationships 	between 	optometrists 	and 	other 	health 	care
providers 	(such 	as 	dentists 	or 	podiatrists) 	who 	might 	provide
complementary 	health 	care 	services 	at 	a 	single 	office 	location.
Virginia 	Code 	SS 	54-388(A)(2)(k) 	and 	54.397.1 	make 	it
illegal 	for 	an 	optometrist 	to 	be 	employed 	by 	or 	locate 	gis 	or 	her
practice 	at 	a 	"commercial 	or 	mercantile 	establishment."
5 	Section 	54-388(A)(2)(k) 	does 	allow 	such 	an 	establishment 	to
employ 	an 	optometrist 	if 	it 	employed 	a 	full-time 	optometrist 	on
(footnote 	continued)
3

Similarly, 	Board 	of 	Veterinary 	Medicine 	Regulation 	15-C 	bans 	the
practice 	of 	veterinary 	medicine 	by 	a 	lessee 	of 	any 	commercial 	or
mercantile 	etablishment. 	These 	provisions 	prevent 	optometrists
and 	veterinarians 	from 	locating 	their 	practices 	inside 	retail
drug 	or 	department 	stores, 	where 	they 	can 	establish 	and 	maintain
a 	high 	volume 	of 	patients 	because 	of 	the 	convenience 	of 	such
locations 	and 	a 	high 	number 	of 	"walk-in" 	patients. 	This 	higher
volume 	may, 	in 	turn, 	allow 	professional 	firms 	to 	realize
economies 	of 	scale 	that 	may 	be 	passed 	on 	to 	consumers 	in 	the 	form
of 	lower 	prices. 	These 	restrictions 	also 	may 	limit 	the 	avail-
ability 	of 	equity 	capital 	for 	professional 	practices, 	which
increases 	the 	cost 	of 	capital 	to 	professional 	firms 	and 	further
hinders 	the 	development 	of 	high-volume 	practices 	that 	may 	be 	able
to 	reduce 	costs 	through 	economies 	of 	scale.
Virginia 	Code 	S 54-388(A)(2)(g) 	and 	Board 	of 	Optometry
Regulation 	II-D 	prohibit 	the 	use 	of 	trade 	names 	by 	optome-
trists. 	Trade 	names 	-- 	such 	as 	"Fourth 	Street 	Contact 	Lens
Clinic" 	or 	"Southern 	Vision 	Care 	Centers" 	-- 	can 	be 	virtually
essential 	to 	the 	establishment 	of 	large 	group 	practices 	and 	chain
operations 	that 	are 	able 	to 	exploit 	economies 	of 	scale 	and,
consequently, 	to 	offer 	lower 	prices. 	Trade 	names 	are 	chosen
because 	they 	are 	easy 	to 	remember 	and 	may 	also 	identify 	the 	loca-
tion 	or 	other 	characteristics 	of 	a 	practice. 	Over 	time, 	a 	trade
name 	ordinarily 	comes 	to 	be 	associated 	with 	a 	certain 	level 	of
quality, 	service 	and 	price, 	which 	facilitates 	consumer 	search.
These 	kinds 	of 	restrictions 	on 	the 	business 	practices 	of
professionals 	can 	reduce 	competition 	in 	health 	care 	markets 	by
preventing 	the 	formation 	and 	development 	of 	innovative 	forms 	of
professional 	practice, 	such 	as 	chain 	optometric 	firms, 	that 	may
be 	more 	efficient, 	provide 	comparable 	quality, 	and 	offer 	competi-
tion 	to 	traditional 	providers. 	For 	example, 	in 	a 	case 	challeng-
ing 	various 	ethical 	code 	provisions 	enforced 	by 	the 	American
Medical 	Association 	("AMA"), 	the 	Commission 	found 	that 	AMA 	rules
prohibiting 	physicians 	from 	working 	on 	a 	salaried 	basis 	for 	a
hospital 	or 	other 	lay 	institution 	and 	from 	entering 	into 	partner-
ships 	or 	similar 	relationships 	with 	non-physicians 	unreasonably
restrgined 	competition 	and 	thereby 	violated 	the 	antitrust
laws. 	The 	Commission 	concluded 	that 	the 	AMA's 	prohibitions 	kept
physicians 	from 	adopting 	more 	economically 	efficient 	business
formats 	and 	that, 	in 	particular, 	these 	restrictions 	precluded
competition 	by 	organizations 	not 	directly 	and 	completely 	under
the 	control 	of 	physicians. 	The 	Commission 	also 	found 	that 	there
were 	no 	countervailing 	procompetitive 	justifications 	for 	these
restrictions.
June 	3, 	1938.
6 	In 	re 	American 	Medical 	Association, 	94 	F.T.C. 	701 	(1978),
aff'd, 	638 	F.2d. 	443 	(2d 	Cir. 	1980), 	aff'd 	memo 	by 	an 	eaually
divided 	court, 	455 	u.S. 	676 	(1982).
4

Proponents 	of 	such 	restrictions ~laim that 	they 	are 	neces-
sary 	to 	maintain 	a 	high 	level 	of 	quality 	in 	the 	professional 	ser-
vices 	market. 	For 	example, 	they 	claim 	that 	employee-employer 	and
other 	relationships 	between 	professionals 	and 	non-professionals
will 	result 	in 	lay 	interference 	in 	the 	professional 	jUdgment 	of
licensees, 	thus 	causing 	a 	decline 	in 	quality. 	They 	assert 	that
lay 	corporations 	such 	as 	chain 	retailers 	would 	be 	unduly 	con-
cerned 	with 	profits, 	not 	with 	the 	quality 	of 	professional 	care.
Allegedly, 	while 	such 	firms 	might 	offer 	lower 	prices, 	they 	might
also 	encourage 	their 	professional 	employees 	to 	cut 	corners 	in
order 	to 	maintain 	protits. 	According 	to 	those 	who 	favor 	restric-
tions, 	the 	public 	would 	suffer 	doubly 	because 	professionals 	who
practice 	in 	traditional, 	non-commercial 	settings 	would 	be 	forced
to 	lower 	the 	price 	and 	quality 	of 	their 	services 	in 	order 	to
compete.
The 	Federal 	Trade 	Commission's 	Bureaus 	of 	Economics 	and
Consumer 	Protection 	have 	issued 	two 	studies 	that 	provide 	evidence
that 	restrictions 	on 	commercial 	practice 	by 	optometrists
including 	restrictions 	on 	the 	business 	relationships 	between
optometrists 	and 	non-optometrists, 	on 	commercial 	locations 	and 	on
trade 	name 	usage 	-- 	are, 	in 	fact, 	harmful 	to 	consumers.
The 	first 	study,7 	conducted 	with 	the 	help 	of 	two 	colleges 	of
optometry 	and 	the 	chief 	optometrist 	of 	the 	Veterans 	Administra-
tion, 	compared 	the 	price 	and 	quality 	of 	eye 	examinations 	and
eyeglasses 	across 	cities 	with 	a 	variety 	of 	legal 	environments.
Cities 	were 	classified 	as 	markets 	where 	advertising 	was 	present
if 	there 	was 	advertising 	of 	eyeglasses 	or 	eye 	exams 	in 	local
newspapers 	or 	"Yellow 	Pages." 	Cities 	were 	classified 	as 	markets
with 	Chain 	optometric 	practice 	if 	eye 	examinations 	were 	available
at 	large 	interstate 	optical 	firms. 	Since 	restraints 	on 	corporate
practice 	of 	optometry, 	commercial 	locations 	and 	trade 	name 	usage
necessarily 	restrict 	the 	operations 	of 	chain 	optometric 	firms,
the 	study 	provides 	important 	information 	on 	the 	likely 	effects 	of
such 	restrictions.
The 	study 	found 	that 	prices 	Charged 	in 	1977 	for 	eye 	examina-
tions 	and 	eyeglasses 	were 	significantly 	higher 	in 	cities 	without
chains 	and 	advertising 	than 	in 	cities 	where 	advertising 	and 	chain
firms 	were 	present. 	The 	average 	price 	charged 	by 	optometrists 	in
the 	cities 	without 	chains 	and 	advertising 	was 	33.6% 	higher 	than
in 	the 'cities 	with 	advertising 	and 	chains 	($94.46 	versus 	$70.72).
prices 	were 	approximately 	17.9% 	higher 	as 	a 	function 	of 	the
absence 	of 	chains; 	the 	remaining 	price 	difference 	was 	attributed
to 	the 	absence 	of 	advertising.
7 	Bureau 	of 	Economics, 	Federal 	Trade 	Commission, 	Effects 	of
Restrictions 	on 	Advertising 	and 	Commercial 	Practice 	in 	the
Professions: 	The 	Case 	of 	Optometry 	(1980).
5

The 	data 	also 	showed 	that 	the 	quality 	of 	vision 	care 	was 	not
lower 	in 	cities 	where 	chain 	optometric 	practice 	and 	advertising
were 	present. 	The 	thoroughness 	of 	eye 	examinations, 	the 	accuracy
of 	eyeglass 	prescriptions, 	the 	accuracy 	and 	workmanship 	of 	eye-
glasses, 	and 	the 	extent 	of 	unnecessary 	prescribing 	were, 	on
average, 	the 	same 	in 	the 	both 	types 	of 	cities.
The 	second 	study 	compared 	the 	cost 	and 	quality 	of 	cosmetic
contact 	lens 	fitting 	by 	various 	types 	of 	eye 	care 	professionals. 8
This 	study 	was 	designed 	and 	conducted 	with 	the 	assistance 	of 	the
major 	national 	professional 	associations 	representing 	ophthal-
mologists, 	optometrists 	and 	opticians. 	Its 	findings 	are 	based 	on
examinations 	and 	interviews 	of 	more 	than 	500 	contact 	lens 	wearers
in 	18 	urban 	areas.
The 	study 	found 	that 	there 	were 	few, 	if 	any, 	meaningful 	dif-
ferences 	in 	the 	quality 	of 	cosmetic 	contact 	lens 	fitting 	provided
by 	ophthalmologists, 	optometrists, 	and 	opticians. 	The 	study 	also
showed 	that, 	on 	average, 	"commercial" 	optometrists 	-- 	that 	is,
optometrists 	who 	worked 	for 	a 	chain 	optical 	firm 	or 	advertised
heavily 	-- 	fitted 	contact 	lenses 	at 	least 	as 	well 	as 	other
fitters, 	but 	charged 	significantly 	lower 	prices.
These 	studies 	provide 	evidence 	that 	restrictions 	on 	employ-
ment, 	partnersnip, 	or 	other 	relationships 	between 	professionals
and 	non-professionals, 	on 	commercial 	locations 	and 	on 	trade 	name
usage 	tend 	to 	raise 	prices 	above 	the 	levels 	that 	would 	otherwise
prevail, 	but 	do 	not 	seem 	to 	raise 	tne 	quality 	of 	care 	in 	the
vision 	care 	market. 	Although 	these 	studies 	deal 	specifically
with 	restrictions 	on 	the 	practice 	of 	optometry, 	the 	results 	may
be 	applicable 	to 	analogous 	restrictions 	in 	other 	areas, 	such 	as
veterinary 	medicine.
III. 	Restrictions 	on 	Prepaid 	Optometric 	Service 	Plans
We 	also 	have 	reviewed 	Chapter 	27, 	Title 	38.1 	of 	the 	Virginia
Code, 	relating 	to 	Plans 	for 	Future 	Dental 	or 	Optometric 	Services,
and 	have 	identified 	several 	provisions 	that 	appear 	to 	be 	unneces-
sarily 	restrictive 	or 	whose 	anticompetitive 	effects 	may 	outweigh
any 	countervailing 	benefits 	to 	the 	pUblic.
Virginia 	Code 	S 38.1-898 	requires 	that 	a 	majority 	of 	the
board 	of 	directors 	of 	a 	prepaid 	optometric 	service 	plan 	be
optometrists. 	It 	is 	not 	apparent 	what 	public 	benefit 	results
from 	requiring 	provider 	control 	of 	all 	plan 	boards. 	We 	are
unaware 	of 	any 	reason 	why 	consumers, 	entrepreneurs, 	and 	others
should 	not 	also 	be 	permitted 	to 	establish 	and 	operate 	such 	plans
in 	competition 	with 	provider-controlled 	plans. 	Such 	lay 	boards
8 	Bureaus 	of 	Consumer 	Protection 	and 	Economics, 	Federal 	Trade
Commission, 	A Comparative 	Analysis 	of 	Cosmetic 	Contact 	Lens
Fitting 	by 	Ophthalmologists, 	Optometrists, 	and 	Opticians 	(1983).
6

· - .- .
can 	certainly 	obtain 	any 	necessary 	professional 	expertise 	witnout
naving 	providers 	cohtrol 	the 	plan's 	board 	of 	directors.
Section 	38.1-903 	requires 	that 	optometric 	service 	plan 	sub-
scribers 	have 	"free 	choice 	of 	any 	participating 	••• 	optome-
trist." 	Some 	stat~s 	interpret 	such 	clauses 	to 	require 	that
participatlon 	be 	open 	to 	any 	licensed 	provider. 	If 	this 	section
is 	interpreted 	in 	this 	way, 	it 	in 	fact 	could 	restrict 	the 	choices
available 	to 	consumers. 	Mandating 	free 	choice 	of 	provider 	in 	all
prepayment 	programs 	prevents 	plans 	from 	offering, 	and 	subscribers
from 	freely 	and 	voluntarily 	choosing 	to 	enroll 	in, 	programs 	that
may 	limit 	subscriber 	choice 	of 	participating 	providers. 	Such
plans, 	in 	turn, 	may 	lower 	program 	costs 	by 	selecting 	less 	expen-
sive 	and 	more 	quality-conscious 	providers, 	and 	may 	generate
competitive 	pressure 	on 	all 	providers 	to 	control 	costs 	or 	raise
quality. 	This 	concept 	is 	evident 	in 	both 	health 	maintenance
organizations 	("HMOS") 	and 	preferred 	provider 	organizations
("PPOs"). 	As 	you 	know, 	Virginia 	was 	one 	of 	the 	first 	states 	to
pass 	legislation 	authorizing 	PPO 	arrangements, 	and 	the 	mandatory
"free 	choice" 	provision 	of 	Section 	38.1-903 	appears 	to 	be 	at 	odds
with 	the 	purpose 	and 	intent 	of 	that 	more 	recent 	statute. 	In 	its
case 	against 	the 	American 	Medical 	Association, 	the 	Commission
found 	tnat 	the 	origin 	and 	history 	of 	the 	medical 	profession's
insistence 	on 	this 	type 	of 	provision 	for 	prepayment 	plans 	"makes
clear 	that 	the 	purpose 	... 	is 	primarily 	the 	anticompetitive 	one
of 	suppressing 	the 	activ~ties of 	competitors, 	not 	solicitude 	for
the 	rights 	of 	patients."
Section 	38.1-904 	denies 	the 	Insurance 	Commission 	discretion
to 	license 	more 	than 	one 	plan 	in 	a 	given 	geographic 	area 	if
"licensing 	more 	than 	one 	plan 	for 	the 	same 	geographical 	area 	will
not 	promote 	the 	public 	welfare." 	Wnile 	we 	do 	not 	know 	how 	this
provision 	in 	fact 	has 	been 	applied 	or 	will 	be 	applied, 	it 	could
be 	used 	to 	protect 	current 	market 	participants 	from 	competition
from 	new 	market 	entrants, 	or 	at 	least 	to 	discourage 	such 	new
entry. 	In 	any 	event, 	it 	does 	not 	appear 	to 	serve 	any 	substantial
public 	interest.
Section 	38.1-909 	provides 	that 	prepaid 	optometric 	service
plans 	subject 	to 	this 	chapter 	"shall 	not 	engage 	in 	any 	other
business," 	with 	the 	exception 	of 	governmental 	health 	care
programs. 	This 	restriction 	may 	unnecessarily 	prevent 	plans 	from
diversifying 	and 	offering 	their 	subscribers 	additional 	products
or 	benefits 	packages 	that 	may 	be 	more 	convenient 	and 	desirable.
For 	example, 	many 	commercial 	insurers 	have 	offered 	coverage
packages 	to 	employers 	that 	include 	accident 	and 	health 	insurance,
dental 	benefits, 	life 	insurance, 	workers' 	compensation 	coverage,
and 	even 	pensions 	and 	annuities. 	permitting 	optometric 	plans 	to
diversify 	in 	at 	least 	some 	ways 	to 	meet 	market 	demands 	-- 	sub-
ject, 	of 	course, 	to 	appropriate 	regulatory 	oversight 	-- 	may 	help
9 	In 	re 	American 	Medical 	Association, 	supra 	n.? 	at 	1015.
?

I'
I
II
tnem 	to 	be 	more 	effective 	competitors 	and 	better 	meet 	the 	needs
of 	the 	public.
In 	conclusion, 	thank 	you 	for 	your 	willingness 	to 	consider
our 	comments. 	We 	are 	enclosing 	copies 	of 	the 	studies 	referred 	to
in 	our 	comments. 	Please 	let 	us 	know 	if 	we 	can 	be 	of 	any 	further
assistance.
Sincerely,
\, . 	I .r 	.
Carol 	T. 	Crawford
Director
Bureau 	of 	Consumer 	Protection
Enclosures
8

BUREAU OF
CONSUMF.R PROTECTION
FEDERAL TRADE COMMISSION
WASHINGTON. O. C. 20580
May 	22, 	1985
The 	Honorable 	~alph L. 	Axselle, 	Chairman
Governor's 	Regulatory 	Reform 	Board
General 	Assembly 	Building
Commonwealth 	of 	Virginia
910 	Capitol 	Street
Richmond, 	VA 	23219
Dear 	Mr. 	Chairman:
The 	Federal 	Trade 	Commission's 	Bureaus 	of 	Consumer
Protection, 	Economics, 	and 	Competition 	are 	pleased 	to 	respond 	to
the 	invitation 	of 	Richarc 	D. 	Morrison, 	Regulatory 	Review
Coordinator, 	to 	assist 	you 	in 	the 	ongoing 	review 	of 	health
professio~al regulatory 	boards 	by 	the 	Commonwealth 	of
Virginia. 	As 	you 	are 	aware, 	we 	submitted 	comments 	last 	year 	to
Mr. 	Morrison 	concerning 	laws 	and 	regulations 	governing 	the
professio~s of 	Dentistry, 	Medicine, 	Optometry, 	and 	Veterinary
Medicine. 	Our 	previous 	comments 	focused 	on 	(1) 	r.estrictions 	on
advertising 	by 	these 	professionals, 	(2) 	restricth.•.~ on 	the
business 	practices 	of 	these 	professionals, 	includi~. 	~orporate
employment, 	business 	relationships 	between 	professi~.als and 	non-
professionals, 	commercial 	locations, 	and 	trade 	name 	usage, 	and
(3) 	restrictions 	on 	the 	formation 	and 	operation 	of 	prepaid 	dental
and 	optometric 	plans. 	Our 	previous 	comments 	also 	addressed 	both
statutory 	and 	regulatory 	provisions 	covering 	all 	three 	of 	these
areas. 	Finally, 	our 	previous 	comments 	discussed 	in 	some 	detail
the 	negative 	effects 	that 	restrictions 	on 	nondeceptive
advertising 	and 	commercial 	practices 	can 	have 	on 	consumers 	and
competition.
We 	are 	now 	commenting 	on 	the 	regulatory 	changes 	that 	have
been 	proposed 	by 	the 	Boards 	governing 	these 	professions. 	In
offering 	these 	comments, 	our 	goal 	continues 	to 	be 	to 	identify 	and
seek 	the 	removal 	of 	such 	restrictions 	that 	impede 	competition,
increase 	costs, 	and 	harm 	consumers 	without 	providing
countervailing 	benefits. 	While 	we 	also 	direct 	these 	comments 	to
the 	Regulatory 	Boards, 	we 	urge 	the 	Reform 	Board 	to 	consider 	our
1 	These 	comments 	represent 	the 	views 	of 	the 	Bureaus 	of 	Consumer
Protection, 	Economics, 	and 	Competition 	of 	the 	Federal 	Trade
Commission 	and 	do 	not 	necessarily 	represent 	the 	views 	of 	the
Commission 	or 	any 	individual 	Commissioner. 	The 	Commission,
however, 	has 	authorized 	the 	submission 	of 	these 	comments.
2 	We 	submitted 	separate 	comments 	on 	the 	regulations 	of 	the 	(1)
Boards 	of 	Dentistry 	and 	Medicine, 	dated 	August 	21, 	1984, 	and 	(2)
Boards 	of 	Optometry 	and 	Veterinary 	Medicine, 	dated 	September 	14,
1984. 	Copies 	of 	both 	comments 	are 	attached.

vie.... s 	.... hen 	it 	recommends 	to 	the 	Governor 	the 	position 	hesh~uld
take 	.... hen 	he 	makes 	final 	comments 	to 	the 	Regulatory 	Boards.
We 	.... ill 	first 	provide 	a 	brief 	overvie.... 	of 	our 	previous
comments, 	the 	Boards' 	responses 	thereto, 	and 	provisions 	in 	the
proposed 	regulations 	that 	.... e 	believe 	continue 	to 	present
potential 	problems. 	In 	an 	attachment, 	.... e 	then 	discuss
individually 	and 	in 	detail 	each 	Board's 	proposed 	regulations.
While 	this 	format 	leads 	to 	some 	repetition 	because 	of 	similar
provisions 	proposed 	by 	several 	Boards, 	.... e 	believe 	that 	each 	Board
will 	find 	it 	easier 	to 	read 	the 	comments 	that 	apply 	to 	it
separately.
I.
Ii
I!
!
. '\-.
Bon. 	Ralph 	L. 	Axselle 	-2-
One 	of 	the 	primary 	issues 	that 	our 	previous 	comments
addressed 	was 	restraints 	on 	nondeceptive 	advertising. 	We 	listed
statutory 	and 	regulatory 	provisions 	that 	appeared 	to 	restrict
nondeceptive 	advertising 	by 	dentists, 	physicians, 	optometrists,
and 	veterinarians, 	and 	we 	urged 	their 	removal. 	In 	response, 	the
Board 	of 	Veterinary 	Medicine 	proposed 	the 	removal 	of 	many 	of 	the
restrictions 	in 	this 	area, 	the 	Board 	of 	Optometry 	also 	proposed
simplifying 	the 	rules 	governing 	advertising, 	and 	the 	Board 	of
Dentistry 	proposed 	the 	elimination 	of 	certain 	restrictions. 	The
Board 	of 	Medicine 	stated 	that 	it 	would 	take 	our 	comments 	under
advisement.
Potential 	problems 	remain, 	however. 	Neither 	the 	Board 	of
Optometry 	nor 	the 	Board 	of 	Medicine 	has 	recommended 	removal 	of
statutory 	restrictions 	that 	appear 	to 	prohibit 	some 	types 	of
nondeceptive 	advertising. 	Moreover, 	the 	Board 	of 	Dentistry 	has
proposed 	new 	regulations 	that 	appear 	to 	go 	beyond 	prohibiting
false 	and 	deceptive 	advertising, 	and 	impose 	additional
unnecessary 	burdens 	on 	nondeceptive 	advertising.
The 	second 	major 	issue 	that 	we 	addressed 	in 	our 	previous
comments 	involved 	restrictions 	on 	commercial 	practice, 	including
corporate 	employment, 	commercial 	locations, 	and 	trade 	name
usage. 	Again, 	the 	Board 	of 	Veterinary 	Medicine 	proposed 	the
removal 	of 	those 	restrictions 	contained 	in 	its 	regulations. 	In
addition, 	the 	Board 	of 	Optometry 	proposed 	to 	allow 	some 	trade
name 	usage.
Potential 	problems 	remain 	in 	this 	area, 	too, 	however.
Although 	many 	of 	the 	commercial 	practice 	restrictions 	are
statutory, 	none 	of 	the 	Boards 	recommended 	any 	changes 	to 	existing
statutory 	prohibitions 	on 	commercial 	practice 	by 	optometrists,
dentists, 	and 	physicians. 	(No 	such 	restrictions 	governing
veterinarians 	exist.) 	Further, 	the 	Board 	of 	Optometry's 	proposed
3 	We 	note 	that 	we 	are 	not 	in 	a 	position 	to 	offer 	advice 	on 	what
minimum 	level 	of 	quality 	of 	care 	the 	states 	should 	require.

Thank 	you 	for 	your 	willingness 	to 	consider 	our 	comments.
Please 	let 	us 	know 	if 	we 	can 	be 	of 	any 	further 	assistance.
I
regulations 	governing 	trade 	name 	usage 	appear 	to 	go 	beyond 	what
is 	necessary 	to 	prevent 	deception 	and 	may 	unduly 	burden 	trade
name 	usage.
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Bon. 	Ralph 	L. 	Axselle 	-3-
Sincerely,
~a~Director
Attachments

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REPORT 	OF 	THE 	BUREAUS 	OF
CONSUMER 	PROTECTION, 	COMPETITION, 	AND 	ECONOMICS
OF 	THE 	FEDERAL 	TRADE 	COMMISSION
TO 	THE
COMMONWEALTH 	OF 	VIRGINIA
GOVERNOR'S 	REGULATORY 	REFORM 	BOARD
ON
REVIEW 	OF 	REGULATIONS 	PROPOSED 	BY
THE 	BOARD 	OF 	OPT~METRY
THE 	BOARD 	OF 	DENTISTRY
THE 	BOARD 	OF 	VETERINARY 	MEDICINE, 	and
THE 	BOARD 	OF 	MEDICINE
May 	22, 	1985
Thr~se comments 	repres~nt the 	views 	of 	the 	Bureaus 	of 	Consumer
Protection, 	Economics, 	and 	Competition 	of 	the 	Federal 	Trade
Commission 	and 	do 	not 	necessarily 	represent 	the 	views 	of 	the
Commission 	or 	any 	individual 	Commissioner. 	The 	Commission,
however, 	has 	authorized 	the 	submission 	of 	these 	comments.

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.	.,
BOARD 	OF 	OPTOMETRY
Our 	previous 	comments l discussed 	several 	statutory
provisions 	restricting 	advertising 	and 	business 	practices 	that 	we
suggested 	may 	harm 	consumers. 	The 	Board 	of 	Optometry 	did 	not
recommend 	any 	statutory 	changes 	but 	did 	propose 	changes 	in 	its
regulations 	that 	would 	simplify 	the 	rules 	governing 	advertising
and 	would 	allow 	some 	use 	of 	trade 	names. 	However, 	some 	of 	the
proposed 	restrictions 	may 	go 	beyond 	what 	is 	necessary 	to 	prevent
deception.
Advertisina 	Restrictions
The 	Board 	of 	Optometry 	~as 	proposed 	replacing 	the 	current
list 	of 	advertising 	disclosur~ requirements 	(Regulation 	III) 	with
Section 	3.lG., 	which 	would 	prohi~it false 	and 	misleading
advertising 	and 	require, 	whenever 	a 	price 	is 	advertised, 	that 	the
advertisement 	state 	what 	goods 	and 	services 	are 	included 	in 	the
price. 	The 	purpose 	of 	this 	provision 	appears 	to 	be 	to 	prevent
false 	and 	misleading 	advertising. 	We 	have 	some 	concern, 	however,
about 	the 	proposed 	requirement 	that 	any 	price 	advertisement 	state
what 	goods 	and 	services 	are 	included 	in 	the 	price. 	This
provision 	could 	be 	interpreted 	to 	require 	detailed 	and 	lengthy
disclosures 	that 	are 	not 	necessary 	to 	prevent 	deception 	but
merely 	impose 	extra 	costs 	on 	the 	advertisers, 	costs 	that 	are
1 	Letter 	to 	Richard 	Morrison, 	Department 	of 	Health 	Regulatory
Boards 	from 	Carol 	T. 	Crawford, 	Director, 	Bureau 	of 	Consumer
Protection 	(September 	14, 	1984) 	(hereinafter 	referred 	to 	as 	the
"September 	1984 	comments").
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ultimately 	paid 	for 	by 	consumers. 	For 	example, 	an 	optometrist
who 	wished 	to 	advertise 	a 	price 	for 	an 	eye 	exam 	could 	be 	required
to 	disclose 	the 	specific 	procedures 	that 	are 	included 	in 	the
exam. 	Further, 	the 	vague 	language 	of 	the 	provision 	could 	chill
legitimate 	advertising 	because 	potential 	advertisers 	might 	be
unsure 	of 	its 	meaning. 	We 	recommend 	that 	the 	Board 	reconsider
the 	need 	for 	this 	provision.
We 	again 	urge 	the 	Board 	to 	recommend 	that 	Virginia 	Code
Sections 	54-388 	(A)(2)(d) 	and 	54-396 	(9)(ii), 	which 	prohibit
claims 	of 	superiority 	and 	advertising 	of 	free 	services, 	be
repealed, 	so 	that 	only 	false 	or 	deceptive 	advertising 	is
prohibited. 	A prohibition 	of 	false 	advertising 	should 	be
sufficient 	to 	prevent 	deceptive 	claims 	of 	superiu~i -~ 	and 	of 	free
services. 	As 	noted 	in 	our 	previous 	comments 	(Septe~~er 1984
comments, 	at 	pp. 	2-3), 	these 	code 	provisions 	appear 	to 	restrict
nondeceptive 	advertising, 	thereby 	lessening 	competition 	and
harming 	consumers.
Trace 	Names
The 	Board 	of 	Optometry 	has 	proposed 	removing 	a 	complete 	ban
on 	the 	use 	of 	trade 	names 	(Reg. 	II-D) 	and 	allowing 	their 	use
- 	3 	-

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under 	certain 	circumstances 	(proposed 	Section 	4.1).2 	As 	we
stated 	in 	our 	earlier 	comments 	(September 	1984 	comments, 	at 	p.
4), 	the 	use 	of 	trade 	names 	can 	be 	virtually 	essential 	to 	the
establishment 	of 	group 	practices 	and 	chain 	operations 	that 	are,
able 	to 	take 	advantage 	of 	economies 	of 	scale 	and 	consequently 	to
offer 	lower 	prices. 	Trade 	names 	can 	also 	minimize 	consumer
search 	costs 	because, 	over 	time, 	a 	trade 	name 	ordinarily 	comes 	to
be 	associated 	with 	a 	certain 	level 	of 	quality, 	service, 	and
price.
Although 	we 	believe 	that 	the 	general 	trend 	of 	the 	proposed
regulations 	may 	well 	benefit 	consumers, 	some 	of 	the 	specific
proposed 	limitations 	may 	~estrict 	trade 	name 	usage 	more 	than 	is
necessary 	to 	prevent 	decepti,':·. 	For 	example, 	some 	of 	the
restrictions 	appear 	to 	limit 	~_ade 	name 	usage 	by 	group 	practices
with 	branch 	offices. 	Proposed 	sections 	4.lA.2. 	and 	4.IA.3.
appear 	to 	restrict 	the 	use 	of 	a 	trade 	name 	consisting 	of 	the 	name
of 	one 	or 	more 	of 	the 	optometrists 	in 	the 	practice 	to 	the 	office
where 	the 	named 	optometrists 	practice. 	This 	would 	appear 	to
preclude 	the 	use 	of 	trade 	names 	such 	as 	"Optometric 	Offices 	of
Smith 	and 	Jones," 	and 	possibly 	·Smith 	Optometric 	Clinic" 	at 	all
branch 	offices 	of 	a 	multi-office 	practice. 	One 	of 	the 	important
advantages 	of 	trade 	names 	is 	to 	facilitate 	the 	~evelopment of
group 	practices 	with 	many 	offices. 	By 	allowing 	employing
doctors' 	names 	to 	be 	used 	only 	at 	those 	offices 	where 	the 	doctors
2 	The 	Board 	has 	proposed 	these 	changes 	in 	the 	regulations 	but
has 	not 	recommended 	a 	change 	in 	Virginia 	Code 	Section 	54-
388(A)(2)(g), 	the 	statute 	that 	bans 	trade 	names.
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actually 	examine 	patients, 	use 	of 	a 	uniform 	trade 	name 	for
multiple 	branch 	offices 	is 	made 	more 	difficult.
We 	understand 	and 	support 	the 	Board's 	desire 	to 	preclude 	the
use 	of 	deceptive 	trade 	names. 	However, 	we 	would 	urge 	the 	Board
to 	evaluate 	whether 	there 	is 	any 	evidence 	that 	the 	use 	of 	trade
names 	such 	as 	·Optometric 	Offices 	of 	Smith 	and 	Jones," 	or 	"Smith
Optometric 	Clinic" 	are 	deceptive 	when 	used 	for 	branch 	offices.
Especially 	where 	a 	number 	of 	branch 	offices 	are 	advertised 	under
such 	a 	trade 	name, 	it 	seems 	doubtful 	that 	consumers 	would 	assume
that 	they 	would 	be 	examined 	by 	one 	of 	the 	named 	doctors.
Proposed 	Section 	4.1B.9., 	which 	prohibits 	use 	of 	trade 	names
containing 	the 	nam£s 	of 	deceased 	or 	retired 	optometrists, 	also
raises 	some 	concerns 	~'Jout whether 	such 	trade 	names 	are
inherently 	deceptive 	in 	every 	instance. 	This 	provision 	would
mean 	that 	a 	trade 	name 	such 	as 	"Smith 	Optometric 	Clinic" 	would
have 	to 	be 	changed 	upon 	the 	death 	of 	Dr. 	Smith, 	thus 	preventing
the 	use 	over 	time 	of 	such 	trade 	names, 	although 	they 	may 	be
valuable 	to 	consumers 	because 	they 	have 	come 	to 	be 	associated
with 	a 	certain 	level 	of 	quality 	or 	price. 	Although 	we 	understand
the 	Board's 	concern 	about 	possible 	deception, 	we 	would 	urge 	the
Board 	to 	evaluate 	whether 	there 	is 	any 	evidence 	that 	consumers
are 	actually 	deceived 	by 	such 	usage. 	Law 	firms 	for 	years 	have
used 	trade 	names 	of 	this 	type, 	and 	we 	are 	unaware 	of 	any 	evidence
of 	resulting 	deception.
We 	recognize 	that 	the 	Board 	may 	wish 	to 	ensure
identification 	and 	accountability 	of 	individual 	practitioners
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......
practicing 	under 	a 	trade 	name. 	However, 	the 	Board 	has 	already
proposed 	regulations 	that 	appear 	to 	accomplish 	this 	end 	without
unduly 	restricting 	nondeceptive 	advertising. 	Section 	4.1B.5.
requires 	conspicuous 	posting 	in 	the 	reception 	area 	of 	the 	names
of 	all 	optometrists 	practicing 	at 	a 	location. 	Sections 	4.1B.7.
and 	8. 	require 	that 	the 	examining 	optometrist's 	name 	appear 	on
the 	patient's 	records 	and 	on 	all 	invoices 	and 	receipts.
Proposed 	Section 	4.1B.2. 	prohibits 	optometrists 	from
practicing 	under 	more 	than 	one 	fictitious 	name. 	It 	is 	unclear
whether 	this 	prohibits 	practicing 	under 	a 	number 	of 	trade 	names
at 	one 	time 	or 	during 	a 	lifetime. 	If 	the 	former, 	this 	would
restrict 	optometrists 	from 	working 	part-time 	for 	more 	than 	one
group 	practice 	using 	a 	trade 	name. 	If 	the 	latter, 	it 	could
severely 	restrict 	the 	employment 	options 	available 	to
optometrists 	and 	hinder 	the 	ability 	of 	large 	group 	practices 	to
recruit 	optometrists. 	We 	believe 	that 	it 	is 	preferable 	for 	the
Board 	to 	proceed 	on 	a 	case-by-case 	basis 	against 	optometrists 	who
use 	trade 	names 	in 	a 	deceptive 	manner 	rather 	than 	to 	issue 	a
broad 	ban 	on 	practicing 	under 	more 	than 	one 	trade 	name.
Proposed 	Sections 	4.lA 	and 	4.lB.3. 	requires 	all
advertisements 	using 	trade 	names 	to 	include 	the 	name 	of 	at 	least
one 	optometrist 	associated 	with 	the 	office. 	While 	this 	is
somewhat 	less 	of 	a 	burden 	than 	requiring 	such 	advertisements 	to
include 	the 	names 	of 	all 	the 	associated 	optometrists, 	it 	would
still 	increase 	the 	costs 	of 	advertising 	without 	necessarily
providing 	information 	that 	would 	help 	consumers 	because 	the 	named
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optometrist 	would 	not 	necessarily 	examine 	the 	consumer's 	eyes.
This 	requirement 	would 	appear 	unnecessary 	since 	adequate
professional 	identification 	will 	likely 	result 	when 	the 	consumer
calls 	or 	visits 	the 	office. 	Further, 	the 	Board 	can 	respond 	if
individual 	complaints 	arise 	because 	it 	will 	have 	a 	record 	of 	all
trade 	names 	in 	use, 	along 	with 	the 	responsible 	optometrists.
(See 	Section 	4.1B.l.)
Proposed 	Section 	4.1B.4. 	prohibits 	trade 	names 	that 	do 	not
include 	the 	words 	"optometry" 	or 	"vision" 	or 	reasonably
recognizable 	derivatives 	thereof. 	This 	would 	appear 	to 	preclude
the 	use 	of 	trade 	names 	such 	as 	"Southern 	Contact 	Lens 	Clinic" 	and
other 	nondeceptive 	trade 	~ames as 	well. 	Presumably, 	the 	intent
of 	this 	proposal 	i~ 	~o 	ensure 	that 	the 	trade 	name 	conveys 	the
fact 	that 	the 	firm 	is 	an 	optometric 	practice. 	However, 	it 	is 	not
clear 	that 	this 	is 	necessary 	since 	most 	advertisements 	would
probably 	convey 	this 	fact 	anyway. 	For 	example, 	this 	fact 	would
likely 	be 	conveyed 	through 	use 	of 	the 	word 	"optometrists" 	in 	the
text 	of 	the 	ad.
Commercial 	Practice 	Restrictions
Lastly, 	we 	would 	urge 	the 	Board 	of 	Optometry 	to 	reconsider
our 	previous 	comments 	concerning 	statutory 	restrictions 	on
".business 	relationships 	between 	optometrists 	and 	non-optometrists
(Section 	54-388 	(A)(2)(i» 	and 	on 	employment 	by 	or 	location 	at
commercial 	establishments 	(Sections 	54-388 	(A) (2).(10<) 	and 	54-
3 97 . 1 ) 	( Se pte mbe r 	1 984 	co mm e n t s, 	at 	pp. 	3- 4 )
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In 	our 	previous

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comments 	we 	raised 	questions 	about 	the 	potential 	harm 	which 	could
result 	from 	such 	restrictions 	and 	discussed 	evidence 	that
·commercial 	practice" 	such 	as 	chain 	firms 	may 	benefit 	consumers
by 	lowering 	prices 	without 	decreasing 	the 	quality 	of 	service.
Our 	comments 	also 	noted 	that 	several 	of 	the 	statutory 	provisions
governing 	prepaid 	dental 	plans 	(Virginia 	Code 	Section 	38.1-892 	et
seq.) 	appear 	to 	be 	unnecessarily 	restrictive 	or 	have
anticompetitive 	effects 	which 	may 	outweigh 	any 	countervailing
benefits 	to 	the 	public. 	In 	its 	report, 	the 	Board 	of 	Optometry
neither 	addressed 	our 	concerns 	nor 	recommended 	any 	statutory
changes. 	We 	urge 	the 	Board 	to 	reconsider 	our 	previous 	comments.
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BOARD 	OF 	DENTISTRY
In 	our 	prior 	comments 3 regarding 	the 	Board 	of 	Dentistry 	we
discussed 	a 	number 	of 	statutory 	and 	regulatory 	provisions 	that
appeared 	to 	prohibit 	nondeceptive 	advertising 	or 	place
unnecessary 	burdens 	on 	such 	advertising. 	The 	Board 	has 	proposed
removing 	some 	of 	these 	regulations 	but 	has 	proposed 	several 	new
regulations 	that 	also 	appear 	to 	go 	beyond 	prohibiting 	false 	and
deceptive 	advertising. 	Our 	previous 	comments 	also 	discussed 	the
potential 	harm 	to 	consumers 	that 	could 	result 	from 	several
statutory 	restrictions 	on 	commercial 	practices, 	including 	a 	ban
on 	trade 	name 	usage. 	The 	Board 	did 	not 	recommend 	changes 	to 	any
of 	these 	statutory 	provisions.
Advertisina
We 	turn 	first 	to 	the 	areas 	covered 	by 	our 	previous 	comments
regarding 	several 	advertising 	provisions 	(August 	1984 	comments,
at 	pp. 	2-4). 	Our 	previous 	comments 	stated 	that 	Virginia 	Code
Section 	54-187(7), 	which 	bans 	advertising 	claims 	of 	superiority,
appears 	to 	prohibit 	at 	least 	some 	nondeceptive 	advertising. 	Our
comments 	also 	stated 	that 	portions 	of 	Section 	7.A.4. 	of 	the
Board's 	regulation, 	prohibiting 	advertising 	of 	statistical 	data,
information 	on 	past 	performance, 	representations 	of 	quality 	and
3 	Letter 	to 	Richard 	Morrison, 	Department 	of 	Health 	Regulatory
Boards 	from 	Carol 	T. 	Crawford, 	Director, 	Bureau 	of 	Consumer
Protection 	(August 	21, 	1984) 	(hereinafter 	sometimes 	referred 	to
as 	the 	"August 	1984 	comments").
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showmanship 	or 	puffery, 	appear 	to 	prohibit 	nondeceptive
advertising. 	We 	also 	expressed 	concern 	that 	Section 	7.A.2.d.,
governing 	advertising 	of 	specialties, 	could 	be 	interpreted 	to
prohibit 	nondeceptive 	advertising. 	The 	Board 	supports 	the
elimination 	of 	all 	these 	restrictions. 	We 	believe 	that 	these
proposed 	changes 	will 	benefit 	consumers. 	However, 	some 	of 	the
remaining 	provisions 	as 	well 	as 	some 	of 	the 	new 	proposed
revisions 	appear 	to 	go 	beyond 	what 	is 	necessary 	to 	prevent
deception.
Previously 	we 	stated 	that 	Section 	7.A.2.f., 	which 	requires
disclosure 	of 	the 	original 	price 	whenever 	a 	discount 	is
advertised, 	would 	likely _prevent 	the 	dissemination 	of 	useful 	and
nondeceptive 	price 	information. 	For 	example, 	this 	provision
would 	prohibit 	ads 	stating 	"10% 	off 	for 	senior 	citizens" 	or 	"$10
off 	for 	all 	new 	patients." 	Further, 	since 	it 	CQuld 	be 	very
costly 	to 	state 	in 	an 	advertisement 	the 	regular 	price 	of 	each 	of
the 	hundreds 	of 	services 	a 	dentist 	provides, 	this 	rule 	will
likely 	decrease 	the 	amount 	of 	discount 	price 	advertising 	that
occurs. 	The 	Board 	has 	now 	recommended 	that 	the 	requirements 	of
Section 	7.4.2.f. 	be 	incorporated 	into 	proposed 	Section 	4.6C., 	and
we 	urge 	the 	Board 	to 	reconsider 	our 	previous 	comments 	on 	this
point 	and 	consider 	eliminating 	this 	requirement.
Proposed 	Section 	4.6B.2. 	states 	that 	an 	advertisement 	of 	a
fee 	for 	a 	dental 	service 	must 	state 	the 	period 	of 	time 	for 	which
the 	fee 	shall 	be 	in 	effect 	unless 	the 	fee 	is 	in 	effect 	for 	at
least 	90 	days. 	In 	evaluating 	whether 	an 	ad 	without 	such 	a
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disclosure 	is 	misleading 	it 	is 	important.to.consider 	normal
consumer 	expectations 	about 	the 	effective 	dates 	of 	advertised
prices. 	We 	suggest 	that 	the 	Board 	evaluate 	whether 	consumers
expect 	advertised 	prices 	to 	be 	effective 	for 	at 	least 	90 	days,
especially 	if 	the 	ad 	uses 	terms 	such 	as 	·special 	offer,· 	or
I
-introductory 	offer." 	Any 	disclosure 	requirement 	adds 	to 	the
cost 	of 	advertising 	and, 	we 	believe, 	should 	be 	imposed 	only 	where
necessary 	to 	prevent 	deception.
Proposed 	Section 	4.6E. 	limits 	fee 	advertising 	to 	certain
listed 	and 	defined 	routine 	dental 	services. 	This 	provision 	would
apparently 	prohibit 	the 	advertising 	of 	fee 	information 	for 	non-
routine 	services, 	includi?g, 	for 	example, 	new 	or 	innovative
techniques 	that 	are 	not 	yet 	widely 	used 	by 	practitioners. 	It
also 	may 	be 	interpreted 	to 	prohibit 	any 	advertisements 	that 	do
not 	state 	specific 	prices 	but 	rather 	use 	terms 	such 	as 	"discount
prices" 	or 	"low 	cost" 	to 	attract 	consumer 	attention 	and
communicate 	a 	message 	effectively. 	Such 	advertising 	is 	not
inherently 	deceptive. 	The 	proposed 	rule 	also 	appears 	to 	require
advertisers 	to 	use 	terminology 	that 	may 	be 	confusing 	and 	not
easily 	understood 	by 	consumers. 	For 	example, 	it 	seems 	to 	require
advertisers 	to 	use 	only 	the 	specific 	terminology 	listed 	in 	the
regulations, 	such 	as 	"prophylaxis" 	to 	describe 	cleaning 	of
teeth. 	It 	also 	seems 	to 	require 	that 	"examination," 	"diagnosis,"
and 	"treatment 	planning" 	be 	advertised 	separately, 	although
diagnosis 	and 	treatment 	planning 	are 	often 	considered 	to 	be 	part
of 	a 	routine 	dental 	examination 	and 	consumers 	may 	not 	understand
the 	distinction 	between 	these 	terms. 	Such 	requirements 	limit 	the
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ability 	of 	advertisers 	to 	convey 	their 	message 	as 	effectively 	as
possible 	and 	thus 	may 	have 	a 	chilling 	effect 	upon 	valuable
advertising. 	The 	requirement 	also 	appears 	to 	impose 	additional
burdens 	on 	advertisers 	that 	are 	not 	imposed 	on 	other 	dentists.
For 	example, 	if 	a 	dentist 	advertises 	-treatment 	planning,- 	he 	or
she 	must 	give 	the 	patient 	a 	written 	itemized 	treatment
recommendation 	and 	a 	written 	itemized 	fee 	statement. 	Those
requirements 	are 	not 	imposed 	on 	nonadvertising 	dentists.
In 	our 	view, 	proposed 	Section 	4.6E. 	is 	not 	necessary 	to
prevent 	deceptive 	advertising. 	While 	we 	recognize 	that 	problems
may 	occur, 	we 	suggest 	t~at 	the 	Board 	respond 	to 	these 	problems 	on
a 	case-by-case 	basis, 	see~ing 	to 	remove 	advertising 	that 	is
actually 	deceptive, 	rather 	than 	through 	broad 	rules 	that 	wou~_
likely 	preclude 	the 	dissemination 	of 	valuable 	nondeceptive
information. 	Thus, 	we 	urge 	the 	Board 	to 	reco~sider the 	necessity
of 	proposed 	Section 	4.6E.
Trade 	Names
In 	our 	previous 	comments 	we 	also 	discussed 	the 	statutory
prohibition 	on 	trade 	name 	usage 	by 	dentists 	(Virginia 	Code
Section 	54-184) 	and 	pointed 	out 	that 	trade 	names 	can 	be 	essential
to 	the 	establishment 	of 	large 	group 	practices 	and 	chain
operations 	that 	can 	offer 	lower 	prices 	(August 	1984 	comments, 	at
pp. 	5-7). 	While 	the 	Board 	of 	Dentistry 	initially 	proposed 	a
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I-
I
!
series 	of 	regulations 	that 	would 	permit 	some 	trade 	name 	usage,4
we 	understand 	that 	it 	now 	recommends 	no 	changes 	to 	the 	current
law 	banning 	trade 	name 	usage. 	We 	would 	urge 	the 	Board 	to
reconsider 	our 	previous 	comments.
I
Commercial 	Practice
Our 	previous 	comments 	also 	addressed 	several 	statutory
restrictions 	on 	commercial 	practice, 	including 	a 	ban 	on
employment, 	partnership, 	and 	other 	business 	relationships 	between
dentists 	and 	other 	persons 	(Virginia 	Code 	Section 	54-146, 	Section
54-183), 	and 	a 	ban 	on 	leasing 	space 	from 	commercial
.
establishments 	(Virginia 	Code 	Section 	54-147.1). 	W~ 	raised 	the
question 	whether 	such 	restrictions 	may 	harm 	consumer~ ;~d
presented 	evidence 	that 	the 	presence 	of 	commercial 	practitioners
such 	as 	chain 	firms 	may 	lower 	prices 	without 	decreasing 	the
quality 	of 	care 	(August 	1984 	comments, 	at 	pp. 	4-7). 	Our 	comments
also 	noted 	that 	several 	of 	the 	statutory 	provisions 	governing
prepaid 	dental 	plans 	(Virginia 	Code 	Section 	38.1-892 	et 	seq.)
appear 	to 	be 	unnecessarily 	restrictive 	or 	have 	anticompetitive
effects 	which 	may 	outweigh 	any 	countervailing 	benefits 	to 	the
public. 	The 	Board 	of 	Dentistry 	did 	not 	address 	these 	concerns 	in
4 	Those 	revisions, 	while 	allowing 	certain 	forms 	of 	trade 	name
usage, 	still 	appeared 	to 	restrict 	unnecessarily 	the 	use 	of 	trade
names. 	See 	our 	comments 	relating 	to 	several 	similar 	provisions
proposed 	by 	the 	Board 	of 	Optometry 	on 	pp. 	3-7, 	suora. 	The 	Board
also 	noted 	that 	a 	statutory 	change 	may 	be 	necessary 	to 	allow
trade 	name 	usage. 	Presumably, 	this 	recommendat~bn also 	has 	been
withdrawn.
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I
I
II
its 	Report 	and 	did 	not 	propose 	changes 	to 	these 	statutory
provisions. 	We 	would 	urge 	the 	Board 	to 	reconsider 	our 	previous
comments.
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BOARD 	OF 	VETERINARY 	MEDICINE
Our 	previous 	comments 5 regarding 	the 	Board 	of 	Veterinary
Medicine 	discussed 	the 	potentially 	harmful 	effects 	of 	Board 	rules
prohibiting 	veterinarians 	fro~ utilizing 	the 	services 	of
solicitors 	(Rule 	15(I)), 	making 	claims 	of 	superiority 	(Rule
15(J)), 	entering 	into 	business 	relationships 	with 	non-
veterinarians 	(Rule 	15(B)), 	and 	leasing 	space 	from 	commercial
establishments 	(Rule 	15(C)). 	We 	support 	the 	Board's 	decision 	to
propose 	the 	elimination 	of 	all 	of 	these 	rules. 	We 	believe 	that
these 	changes 	may 	well 	benefit 	consumers 	by 	increasing
competition 	and 	lowering 	£osts 	without 	decreasing 	quality.
Commercial 	Practice
The 	Board 	of 	Veterinary 	Medicine 	has 	proposed 	a 	new
regulation 	(Section 	2.3.B.) 	that 	would 	make 	it 	unprofessional
conduct 	for 	a 	veterinarian 	to 	practice 	veterinary 	medicine 	if 	a
non-veterinarian 	has 	the 	right 	to 	control 	the 	professional
judgment 	of 	the 	veterinarian. 	According 	to 	the 	Board, 	the
purpose 	of 	the 	current 	ban 	on 	commercial 	practice 	is 	to 	ensure
that 	the 	professional 	judgment 	of 	a 	veterinarian 	is 	not
compromised 	by 	someone 	who 	is 	not 	a 	veterinarian. 	As 	stated, 	the
purpose 	of 	the 	proposed 	changes 	is 	to 	deal 	directly 	with 	this
5 	Letter 	to 	Richard 	Morrison, 	Department 	of 	Health 	Regulatory
Boards 	from 	Carol 	T. 	Crawford, 	Director 	of 	Consumer 	Protection
(September 	14, 	1984) 	(hereinafter 	sometimes 	referred 	to 	as 	the
"September 	1984 	Comments").
- 	15 	-

problem 	without 	intruding 	upon 	business 	relationships 	·so 	long 	as
I
I 	veterinary 	medicine 	is 	practiced 	safely 	and 	well.· 	(Bd. 	of
Veterinary 	Medicine, 	Regulatory 	Review 	Report, 	p. 	9.)
While 	we 	recognize 	that 	the 	Board 	may 	consider 	proposed
Section 	2.3.B. 	necessary 	to 	protect 	consumers, 	we 	believe 	that 	a
slightly 	modified 	version 	of 	this 	provision 	may 	achieve 	the
Board's 	goals 	without 	unnecessarily 	interfering 	with 	business
relationships 	between 	veterinarians 	and 	non-veterinarians. 	As
currently 	drafted, 	Section 	2.3.B. 	might 	be 	interpreted 	to 	prevent
veterinarians 	from 	working 	for 	lay 	employers 	since 	all 	employers
exercise 	control 	over 	the 	work-related 	activities 	of 	their
employees. 	The 	Board 	ma~ be 	able 	to 	accomplish 	its 	express
purpose 	of 	prohibiting 	only 	those 	controls 	that 	compromise 	the
professional 	judgment 	of 	veterinarians 	by 	recommending 	a 	narrower
rule 	that 	would 	res~rict veterinarians 	from 	working 	for 	non-
veterinarians 	where 	the 	non-veterinarian 	seeks 	to 	compromise 	the
veterinarian's 	professional 	judgment 	in 	ways 	that 	might 	lower 	the
quality 	of 	care 	rendered 	by 	the 	veterinarian.
Opponents 	of 	commercial 	practice 	often 	argue 	that 	lay
employers 	will 	compromise 	the 	quality 	of 	care 	in 	an 	effort 	to
increase 	profits. 	However, 	it 	is 	also 	possible 	that 	they 	will
attempt 	to 	ensure 	high 	quality 	in 	an 	effort 	to 	establish 	a 	good
reputation, 	thereby 	increasing 	patronage 	and 	profits 	in 	the 	long
run. 	Our 	study 	regarding 	the 	quality 	of 	cosmetic 	contact 	lens
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fittings 	by 	optometrists,6 	discussed 	more 	fully 	in 	our 	previous
comments 	(September 	1984 	comments, 	at 	p. 	6), 	tends 	to 	support 	the
latter 	argument 	since 	it 	shows 	that 	the 	quality 	of 	commercial
optometrists' 	cosmetic 	contact 	lens 	fittings 	are 	at 	least 	as 	good
as 	those 	of 	noncommercial 	optometrists 	and 	ophthalmologists.
We 	applaud 	the 	Board's 	positive 	response 	to 	our 	previous
concerns. 	We 	urge 	the 	Board 	to 	review 	these 	additional 	comments
and 	consider 	whether 	a 	narrower 	rule 	might 	not 	better 	accomplish
its 	stated 	goal 	of 	not 	intruding 	on 	business 	relationships 	so
long 	as 	veterinary 	medicine 	is 	practiced 	safely 	and 	well.
6 	Bureaus 	of 	Consumer 	Protection 	and 	Economics, 	Federal 	Trade
Co~~ission, A Comparative 	Analysis 	of 	Cosmetic 	Contact 	Lens
Fitting 	by 	Ophthalmologists, 	Optometrists, 	and 	Opticians 	(1983).
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BOARD 	OF 	MEDICINE
In 	our 	previous 	comments' 	we 	discussed 	three 	statutory
provisions 	that 	may 	harm 	consumers. 	We 	noted 	that 	Virginia 	Code
Section 	54-317(3), 	which 	bans 	advertising 	claims 	of 	superiority
by 	physicians, 	would 	appear 	to 	prohibit 	at 	least 	some
nondeceptive 	advertising 	(August 	1984 	comments, 	at 	p. 	2). 	We
also 	discussed 	in 	detail 	two 	provisions 	of 	the 	Virginia 	Code,
Section 	54-278.1, 	prohibiting 	physicians 	from 	leasing 	from
commercial 	establishments, 	and 	Section 	54-317, 	which 	may 	be
interpreted 	to 	prohibit 	trade 	name 	usage 	(August 	1984 	comments,
at 	pp. 	4-7). 	Both 	of 	these 	provisions 	may 	harm 	consumers 	by
hindering 	competition 	from 	high-volume, 	lower-priced 	practices.
in 	its 	Report,8 	the 	Board 	noted 	that 	our 	recommendations 	relating
to 	advertising 	will 	be 	taken 	under 	advisement. 	We 	appreciate
this 	consideration 	of 	our 	comments. 	However, 	the 	Board 	did 	not
recommend 	any 	statutory 	revisions 	and 	we 	would 	urge 	the 	Board 	to
reconsider 	our 	previous 	comments 	regarding 	these 	provisions.
7 	Letter 	to 	Richard 	Morrison, 	Department 	of 	Health 	Regulatory
Boards 	from 	Carol 	T. 	Crawford, 	Director, 	Bureau 	of 	Consumer
Protection 	(August 	21, 	1984) 	(hereinafter 	sometimes 	referred 	to
as 	the 	"August 	1984 	comments.")
8 Board 	of 	Medicine, 	Summary 	of 	Regulations, 	p. 	6.
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