Ophthalmic Practice Rules (Eyeglass Rule), 53274-53276 [2015-21578]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 80, Number 171 (Thursday, September 3, 2015)]
[Proposed Rules]
[Pages 53274-53276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-21578]


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FEDERAL TRADE COMMISSION

16 CFR Part 456


Ophthalmic Practice Rules (Eyeglass Rule)

AGENCY: Federal Trade Commission (``FTC'' or ``Commission'').

ACTION: Advance notice of proposed rulemaking; request for comment.

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SUMMARY: The Commission is requesting public comment on its Trade 
Regulation Rule entitled ``Ophthalmic Practice Rules (Eyeglass Rule),'' 
which requires eye care practitioners to release eyeglass prescriptions 
to their patients (``Eyeglass Rule''). The Commission is soliciting 
comments about the efficiency, costs, benefits, and regulatory impact 
of the Rule as part of its systematic review of all current Commission 
regulations and guides. All interested persons are hereby given notice 
of the opportunity to submit written data, views, and arguments 
concerning the Rule.

DATES: Written comments must be received on or before October 26, 2015.

ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/ophthalmicruleanprm online or on paper, 
by following the instructions in the Instructions for Submitting 
Comments part of the SUPPLEMENTARY INFORMATION section below. Write 
``Eyeglass Rule, 16 CFR part 456, Project No. R511996'' on your 
comment, and file your comment online at https://ftcpublic.commentworks.com/ftc/ophthalmicruleanprm by following the 
instructions on the web-based form. If you prefer to file your comment 
on paper, write ``Eyeglass Rule, 16 CFR part 456, Project No. R51199'' 
on your comment and on the envelope and mail your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
600 Pennsylvania Avenue NW., Suite CC-5610 (Annex B), Washington, DC 
20580, or deliver your comment to the following address: Federal Trade 
Commission, Office of the Secretary, Constitution Center, 400 7th 
Street SW., 5th Floor, Suite 5610 (Annex B), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Alysa Bernstein, Attorney, (202) 326-
3289, or Bonnie McGregor, Federal Trade Investigator, (202) 326-2356, 
Division of Advertising Practices,

[[Page 53275]]

Bureau of Consumer Protection, Federal Trade Commission, 600 
Pennsylvania Avenue NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Eyeglass Rule requires an optometrist or ophthalmologist to 
provide the patient with one copy of the patient's eyeglass 
prescription, at no extra cost, immediately after an eye examination is 
completed.\1\ It defines a prescription as ``the written specifications 
for lenses for eyeglasses which are derived from an eye examination, 
including all of the information specified by state law, if any, 
necessary to obtain lenses for eyeglasses.'' \2\
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    \1\ 16 CFR 456.2 (a) and (c). A provider may withhold a 
patient's prescription until the patient has paid for the eye 
examination, but only if the provider would have required immediate 
payment if the examination had revealed that no ophthalmic goods 
were needed. Section 456.2(a).
    \2\ 16 CFR 456.1(g).
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    The Rule prohibits an optometrist or ophthalmologist from 
conditioning the availability of an eye examination on a requirement 
that the patient agree to purchase ophthalmic goods from the 
optometrist or ophthalmologist,\3\ or providing the patient with a 
notice waiving the liability or responsibility of the provider for the 
accuracy of the exam or the ophthalmic goods and services dispensed by 
another seller.\4\
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    \3\ 16 CFR 456.2(b).
    \4\ 16 CFR 456.2(d).
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    The Commission first promulgated the Eyeglass Rule in 1978 based on 
a finding that many consumers were being deterred from comparison 
shopping for eyeglasses because eye care practitioners refused to 
release prescriptions, even upon a patient's request, or charged an 
additional fee for release of a prescription.\5\
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    \5\ Advertising of Ophthalmic Goods and Services, Statement of 
Basis and Purpose and Final Trade Regulation Rule, 43 FR 23992, 
23998 (June 2, 1978). The Commission also found that some 
practitioners refused to conduct an examination unless the patient 
agreed in advance to purchase eyeglasses from the prescriber and 
that some practitioners conditioned the release of a prescription on 
the signing of a waiver of liability. Id.
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    In 1985, the Commission published a Notice of Proposed Rulemaking 
(``NPR'') requesting comments on certain issues relating to the Rule, 
including whether or not the prescription release requirement should be 
modified to require that prescriptions be given only to patients who 
request them, modified to require only that eye care practitioners 
offer, rather than automatically provide, prescriptions to patients, 
and whether the Rule should be extended to require that optometrists 
and ophthalmologists provide a duplicate copy of prescriptions to 
patients who lost or misplaced the original.\6\ After considering the 
Rulemaking record, the Commission decided in 1989 to retain the Rule's 
requirement that prescriptions be automatically released.\7\ The 
Commission did not receive substantial evidence indicating that the 
practice of refusing to release duplicate copies of eyeglass 
prescriptions to patients who had lost or misplaced the originals was 
prevalent and as a result determined that rulemaking in that area would 
not be appropriate.\8\
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    \6\ Ophthalmic Practice Rules; Proposed Trade Regulation Rule; 
Notice of Proposed Rulemaking, 50 FR 598, 602 (Jan. 4, 1985).
    \7\ Trade Regulation Rule; Ophthalmic Practice Rules; Final 
Trade Regulation Rule, 54 FR 10285, 10303 (Mar. 13, 1989). Citing to 
significant non-compliance with the automatic release requirement of 
the Rule and a lack of consumer awareness about prescription rights, 
the Commission determined that there was not sufficient evidence in 
the record to conclude that the automatic release provision was no 
longer needed. Id.
    \8\ 54 FR 10285, 10303 (Mar. 13, 1989).
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    In 1997, the Commission issued a Request for Public Comment 
regarding the Rule, inviting comments on the overall costs and benefits 
of the Rule, and asking again if the automatic prescription release 
requirement should be modified.\9\ In 2004, following comments from 
numerous parties, the Commission determined to retain the Eyeglass Rule 
without modification.\10\
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    \9\ Ophthalmic Practice Rules; Request for Public Comments, 62 
FR 15865 (Apr. 3, 1997).
    \10\ Ophthalmic Practice Rules; Final Rule; 69 FR 5451 (Feb. 4, 
2004).
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II. Regulatory Review of the Eyeglass Rule

    The Commission periodically reviews all of its rules and guides. 
These reviews seek information about the costs and benefits of the 
agency's rules and guides, and their regulatory and economic impact. 
The information obtained assists the Commission in identifying those 
rules and guides that warrant modification or rescission. Therefore, 
the Commission solicits comments on, among other things, the economic 
impact and benefits of the Rule; possible conflict between the Rule and 
State, local, or other Federal laws or regulations; and the effect on 
the Rule of any technological, economic, or other industry changes.

III. Issues for Comment

    The Commission requests written comment on any or all of the 
following questions. These questions are designed to assist the public 
and should not be construed as a limitation on the issues on which 
public comment may be submitted. The Commission requests that responses 
to its questions be as specific as possible, including a reference to 
the question being answered, and reference to empirical data or other 
evidence upon which comments are based whenever available and 
appropriate. Please also provide evidence of the prevalence of any 
unfair acts or practices that any proposed modification would address.

A. General Issues

    1. Is there a continuing need for the Rule? Why or why not?
    2. What benefits has the Rule provided to consumers? What evidence 
supports the asserted benefits?
    3. What modifications, if any, should be made to the Rule to 
increase its benefits to consumers?
    (a) What evidence supports the proposed modifications?
    (b) How would these modifications affect the costs the Rule imposes 
on businesses, including small businesses?
    (c) How would these modifications affect the benefits to consumers?
    4. What impact has the Rule had on the flow of truthful information 
to consumers and on the flow of deceptive information to consumers?
    5. What significant costs, if any, has the Rule imposed on 
consumers? What evidence supports the asserted costs?
    6. What modifications, if any, should be made to the Rule to reduce 
any costs imposed on consumers?
    (a) What evidence supports the proposed modifications?
    (b) How would these modifications affect the benefits provided by 
the Rule?
    7. What benefits, if any, has the Rule provided to businesses, 
including small businesses? What evidence supports the asserted 
benefits?
    8. What modifications, if any, should be made to the Rule to 
increase its benefits to businesses, including small businesses?
    (a) What evidence supports the proposed modifications?
    (b) How would these modifications affect the costs the Rule imposes 
on businesses, including small businesses?
    (c) How would these modifications affect the benefits to consumers?
    9. What significant costs, if any, including costs of compliance, 
has the Rule imposed on businesses, including small businesses? What 
evidence supports the asserted costs?
    10. What modifications, if any, should be made to the Rule to 
reduce the costs imposed on businesses, including small businesses?
    (a) What evidence supports the proposed modifications?
    (b) How would these modifications affect the benefits provided by 
the Rule?

[[Page 53276]]

    11. What evidence is available concerning the degree of industry 
compliance with the Rule?
    12. What modifications, if any, should be made to the Rule to 
account for changes in relevant technology or economic conditions? What 
evidence supports the proposed modifications?
    13. Does the Rule overlap or conflict with other federal, state, or 
local laws or regulations? If so, how?
    (a) What evidence supports the asserted conflicts?
    (b) With reference to the asserted conflicts, should the Rule be 
modified? If so, why, and how? If not, why not?

B. Specific Issues

    1. Should the definition of ``prescription'' be modified to include 
pupillary distance? Why or why not?
    (a) What evidence supports such a modification?
    (b) How would this modification affect the costs the Rule imposes 
on businesses, including small businesses?
    (c) How would this modification affect the benefits to consumers?
    2. Should the Rule be extended to require that prescribers provide 
a duplicate copy of a prescription to a patient who does not currently 
have access to the original? Why or why not?
    (a) What evidence supports such a modification?
    (b) How would this modification affect the costs the Rule imposes 
on businesses, including small businesses?
    (c) How would this modification affect the benefits to consumers?
    3. Should the Rule be extended to require that a prescriber provide 
a copy to or verify a prescription with third parties authorized by the 
patient? Why or why not?
    (a) What evidence supports such a modification?
    (b) How would this modification affect the costs the Rule imposes 
on businesses, including small businesses?
    (c) How would this modification affect the benefits to consumers?

IV. Instructions for Submitting Comments

    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before October 26, 
2015. Write ``Eyeglass Rule, 16 CFR part 456, Project No. R511996'' on 
the comment. Your comment, including your name and your state, will be 
placed on the public record of this proceeding, including, to the 
extent practicable, on the public Commission Web site, at https://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the 
Commission tries to remove individuals' home contact information from 
comments before placing them on the Commission Web site. Because your 
comment will be made public, you are solely responsible for making sure 
that your comment does not include any sensitive personal information, 
such as a Social Security number, date of birth, driver's license 
number or other state identification number or foreign country 
equivalent, passport number, financial account number, or credit or 
debit card number. You are also solely responsible for making sure that 
your comment does not include any sensitive health information, such as 
medical records or other individually identifiable health information.
    In addition, do not include any ``[t]rade secret or any commercial 
or financial information which is . . . privileged or confidential,'' 
as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC 
Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include 
competitively sensitive information such as costs, sales statistics, 
inventories, formulas, patterns, devices, manufacturing processes, or 
customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you must follow the procedure explained in 
FTC Rule 4.9(c), 16 CFR 4.9(c). In particular, the written request for 
confidential treatment that accompanies the comment must include the 
factual and legal basis for the request, and must identify the specific 
portions of the comments to be withheld from the public record. Your 
comment will be kept confidential only if the FTC General Counsel, in 
his sole discretion, grants your request in accordance with the law and 
the public interest.
    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comment online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/ophthalmicruleanprm by following the instructions on the web-based 
form. If this document appears at https://www.regulations.gov/#!home, 
you also may file a comment through that Web site.
    If you file your comment on paper, write ``Eyeglass Rule, 16 CFR 
part 456, Project No. R511996'' on your comment and on the envelope, 
and mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite 
CC-5610 (Annex B), Washington, DC 20580, or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex 
B), Washington, DC 20024.
    Visit the Commission Web site at https://www.ftc.gov to read this 
document and the news release describing it. The FTC Act and other laws 
that the Commission administers permit the collection of public 
comments to consider and use in this proceeding as appropriate. The 
Commission will consider all timely and responsive public comments that 
it receives on or before October 26, 2015. You can find more 
information, including routine uses permitted by the Privacy Act, in 
the Commission's privacy policy, at https://www.ftc.gov/ftc/privacy.htm.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2015-21578 Filed 9-2-15; 8:45 am]
BILLING CODE 6750-01-P