LCA-Vision; Analysis of Proposed Consent Order To Aid Public Comment, 7723-7725 [2023-02375]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 88, Number 24 (Monday, February 6, 2023)]
[Notices]
[Pages 7723-7725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02375]


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FEDERAL TRADE COMMISSION

[File No. 192 3157]


LCA-Vision; Analysis of Proposed Consent Order To Aid Public 
Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement; request for comment.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices. The attached Analysis of Proposed Consent Order to Aid 
Public Comment describes both the allegations in the draft complaint 
and the terms of the consent order--embodied in the consent agreement--
that would settle these allegations.

DATES: Comments must be received on or before March 8, 2023.

ADDRESSES: Interested parties may file comments online or on paper by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Please write ``LCA-Vision; 
File No. 192 3157'' on your comment and file your comment online at 
https://www.regulations.gov by following the instructions on the web-
based form. If you prefer to file your comment on paper, please mail 
your comment to the following address: Federal Trade Commission, Office 
of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex P), 
Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: Paul Spelman (202-326-2487), Bureau of 
Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue 
NW, Washington, DC 20580.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule Sec.  2.34, 16 CFR 
2.34, notice is hereby given that the above-captioned consent agreement 
containing a consent order to cease and desist, having been filed with 
and accepted, subject to final approval, by the Commission, has been 
placed on the public record for a period of 30 days. The following 
Analysis to Aid Public Comment describes the terms of the consent 
agreement and the allegations in the complaint. An electronic copy of 
the full text of the consent agreement package can be obtained at 
https://www.ftc.gov/news-events/commission-actions.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before March 8, 2023. 
Write ``LCA-Vision; File No. 192 3157'' on your 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 
https://www.regulations.gov website.
    Because of heightened security screening, postal mail addressed to 
the Commission will be subject to delay. We strongly encourage you to 
submit your comments online through the https://www.regulations.gov 
website.
    If you prefer to file your comment on paper, write ``LCA-Vision; 
File No. 192 3157'' 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 P), 
Washington, DC 20580.
    Because your comment will be placed on the publicly accessible 
website at https://www.regulations.gov, you are solely responsible for 
making sure your

[[Page 7724]]

comment does not include any sensitive or confidential information. In 
particular, your comment should not include sensitive personal 
information, such as your or anyone else's 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 your comment does not include sensitive health 
information, such as medical records or other individually identifiable 
health information. In addition, your comment should not include any 
``trade secret or any commercial or financial information which . . . 
is privileged or confidential''--as provided by Section 6(f) of the FTC 
Act, 15 U.S.C. 46(f), and FTC Rule Sec.  4.10(a)(2), 16 CFR 
4.10(a)(2)--including competitively sensitive information such as 
costs, sales statistics, inventories, formulas, patterns, devices, 
manufacturing processes, or customer names.
    Comments containing material for which confidential treatment is 
requested must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with FTC Rule Sec.  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 comment to 
be withheld from the public record. See FTC Rule Sec.  4.9(c). Your 
comment will be kept confidential only if the General Counsel grants 
your request in accordance with the law and the public interest. Once 
your comment has been posted on the https://www.regulations.gov 
website--as legally required by FTC Rule Sec.  4.9(b)--we cannot redact 
or remove your comment from that website, unless you submit a 
confidentiality request that meets the requirements for such treatment 
under FTC Rule Sec.  4.9(c), and the General Counsel grants that 
request.
    Visit the FTC website at https://www.ftc.gov to read this document 
and the news release describing the proposed settlement. The FTC Act 
and other laws 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 
it receives on or before March 8, 2023. For information on the 
Commission's privacy policy, including routine uses permitted by the 
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

Analysis of Proposed Consent Order To Aid Public Comment

    The Federal Trade Commission (``FTC'' or ``Commission'') has 
accepted, subject to final approval, an agreement containing a consent 
order with LCA-Vision (``LCA''). The proposed consent order (``proposed 
order'') has been placed on the public record for 30 days for receipt 
of comments from interested persons. Comments received during this 
period will become part of the public record. After 30 days, the 
Commission will again review the agreement, along with any comments 
received, and will decide whether it should withdraw from the agreement 
and take appropriate action or make final the proposed order.
    This matter involves LCA's advertising of the price of its LASIK 
surgery. The proposed complaint alleges that LCA's advertisements 
represented that LASIK was available for ``as low as'' or ``starting 
at'' $250 or $295. This price was per eye, although that was not always 
clearly disclosed. In truth, very few consumers qualified for the 
advertised price. For example, anyone with vision worse than 20/40 was 
considered ineligible. Consumers typically learned the actual price 
only after undergoing a 90-minute to two-hour consultation and sales 
pitch. The complaint also alleges that LCA's ads often failed to 
disclose adequately the prescriptions consumers needed to qualify for 
the price promotion, that few people were eligible, and that most 
people paid between $1,800 and $2,295 per eye. According to the 
proposed complaint, LCA's advertisements were false or misleading in 
violation of Sections 5(a) and 12 of the FTC Act, and harmed consumers 
by, among other things, wasting their time by luring them into sitting 
for a lengthy consultation under false or deceptive pretenses.
    The proposed order prohibits LCA from engaging in the alleged 
deceptive conduct in the future. Section I prohibits LCA from 
misrepresenting the price of LASIK or any material restrictions, 
limitations, or conditions that affect the price of LASIK. Section II 
requires LCA to make certain clear and conspicuous disclosures when 
advertising LASIK for a price or discount for which a majority of 
consumers--either nationwide or in the geographic area where specific 
LCA ads are disseminated (e.g., the Cincinnati metropolitan area, the 
state of Ohio)--likely would not qualify.
    Sections III and IV require LCA to pay to the Commission $1,250,000 
for consumer redress and describes the procedures and legal rights 
related to that payment. Section V requires LCA to provide customer 
information to enable the Commission to administer such redress. 
Sections VI through IX are reporting and compliance provisions, which 
include recordkeeping requirements and provisions requiring LCA to 
provide information or documents necessary for the Commission to 
monitor compliance with the proposed order. Section X states that the 
proposed order will remain in effect for 20 years, with certain 
exceptions.
    The purpose of this analysis is to aid public comment on the 
proposed order. It is not intended to constitute an official 
interpretation of the complaint or proposed order, or to modify in any 
way the proposed order's terms.

    By direction of the Commission, Commissioner Wilson dissenting.
April J. Tabor,
Secretary.

Dissenting Statement of Commissioner Christine S. Wilson

    Today the Commission announces a complaint and proposed consent 
against LCA-Vision (also d/b/a LasikPlus and Joffe MediCenter). The 
complaint alleges that LCA-Vision engaged in deceptive representations, 
in violation of Section 5 of the FTC Act, in connection with 
promotional pricing claims for its LASIK surgery. Specifically, the 
complaint alleges that LCA-Vision advertised LASIK at a promotional 
price of $250, $250 per eye, or $295 (Joffe MediCenter) but that the 
advertisements failed to disclose, or failed to disclose adequately, 
the requirements consumers must meet to be eligible for the price 
promotions (Complaint Para. 8). The advertisements included 
disclaimers, but the complaint alleges that the disclaimers were not 
clear and conspicuous and did not provide sufficient information for 
consumers to understand the eligibility requirements. (See, e.g. 
Complaint Paras. 16-18).
    The complaint further explains that LCA-Vision requires each 
potential patient to visit a center and undergo multiple eye exams 
during their consultation, including refraction, full pupil dilation, 
and a corneal topographical exam (Complaint Para. 25). After these 
examinations are complete, the potential patient learns whether they 
qualify for LASIK surgery and if they qualify for the promotional 
price. Id. The complaint asserts that the vast majority of consumers 
learn they do not qualify for the promotional price (Complaint Para. 
27) and implies that LCA-Vision should have informed

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consumers in its advertising of the types of prescriptions that do not 
qualify, enabling ineligible consumers to avoid the wasted time and 
expense of traveling to a center and obtaining a consultation. 
(Complaint Para. 36).
    Notably, though, the complaint explains that ``[e]ligibility for 
vision correction surgery depends upon various factors, including a 
patient's prescription level, the thickness of the cornea, the size of 
the pupil, and the stability of the prescription.'' (Complaint Para. 
7.) In addition, the complaint notes that ``Respondent sets surgery 
price guidelines and parameters, including which prescriptions are 
eligible for certain pricing, but generally leave decisions as to a 
patient's eligibility for LASIK surgery, and the appropriate type of 
surgery and laser, to the judgment of its surgeons and optometrists.'' 
(Complaint Para. 7.) The company's centers use two types of laser 
surgery and the complaint states that the decision of which type to use 
to correct a patient's eyesight is left to the surgeon. (Complaint 
Paras. 6-7.)
    It has been said that medicine is as much an art as a science.\1\ 
Even as described in the complaint, eligibility for the surgery--and, 
as a secondary matter, pricing for those who are good LASIK 
candidates--present complicated and nuanced questions whose answers 
depend on the outcome of the eye examination and the judgement of the 
attending surgeon. There are no clear rules about who does and does not 
qualify for the two types of LASIK surgery offered at LCA-Vision 
centers. I believe there could be instances in which patients facially 
may appear to qualify for the price but, after thorough examination, 
are found not to qualify because of medical conditions or complications 
identified during consultation. I also believe there could be instances 
in which some patients who at first blush may appear to be ineligible 
in fact end up qualifying for the promotional pricing following 
consultation due to the discretion the attending surgeon enjoys.
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    \1\ Joseph Herman, Medicine: the science and the art, 27 J. Med. 
Ethics: Medical Humanities 42 (2001) (discussing that ``[m]edicine 
has been said to be both a science and an art'' and describing 
scientific and artistic writings that demonstrate this point), 
available at: https://mh.bmj.com/content/27/1/42.
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    Moreover, I believe the free eye exam provides significant value to 
the potential patient. Even consumers who do not qualify for 
promotional pricing learn detailed information about their vision, 
prescription, and eligibility for LASIK. As a result of this 
examination, LASIK candidates could learn that their prescriptions have 
changed, or that they show signs of glaucoma or other eye health issues 
that might require medical intervention. While the attractive prices 
advertised by LCA-Vision may have encouraged consumers to schedule 
consultations, I do not agree that this battery of comprehensive 
medical exams constitutes a waste of time. To the contrary, I believe 
that these free, comprehensive exams provide significant value to 
consumers, and that this value likely outweighs any potential injury 
that may have resulted from the allegedly deceptive advertising.
    Thus, I am not convinced that the claims here constitute deceptive 
claims in violation of the FTC Act. LCA-Vision offered a price that is 
available to some consumers and did disclose that there were 
eligibility requirements. I agree that the disclosures noting 
eligibility requirements and the need for an examination to determine 
if one qualifies could have been presented more clearly in LCA-Vision's 
advertising. But I am concerned that requiring the inclusion of 
specific medical parameters in advertisements, when those parameters 
could be either over- or under-inclusive depending upon the results of 
the consultation, could be more confusing than helpful.
    For these reasons, I dissent.

[FR Doc. 2023-02375 Filed 2-3-23; 8:45 am]
BILLING CODE 6750-01-P