A California-based online retailer has been ordered to pay a penalty of $60,000 for selling non-corrective, purely cosmetic contact lenses without first obtaining prescriptions for the non-prescription products.
The Federal Trade Commission (FTC) says Lawrence Duskin repeatedly violated the agency's Contact Lens Rule, which stipulates that retailers can sell contact lenses only after obtaining a copy of a valid prescription or otherwise verifying the consumer's prescription with the physician who issued it. The rule applies even to non-corrective lenses like the ones Duskin had been selling through a variety of online costume shops since at least 2014. The commission initially fined Duskin $575,000—the largest fine ever issued for a violation of the Contact Lens Rule—before suspending all but $60,000 of the penalty, conditioned on Duskin complying with a variety of record-keeping and administrative requirements.
It's probably pretty easy to understand why Duskin wasn't verifying his customers' prescription. You wouldn't expect to have to check for a prescription before selling a pair of goofy costume glasses or Quidditch goggles for a Harry Potter cosplay.
Alysa Bernstein, an attorney with the FTC's Bureau of Consumer Protection, says the strict rules are necessary because contact lenses are more intrusive than a pair of glasses.
"It's a medical device that's regulated by the [Food and Drug Administration], and it's something that goes directly onto your eye," Bernstein tells Reason. Getting the wrong size contacts can be a serious health risk, she said.
Yes, there are potential risks with sticking a tiny piece of plastic onto the front of your eyeball. Those risks should be pretty obvious to anyone who is voluntarily buying novelty contact lenses, and those consumers have a pretty good incentive to make sure they are getting the right size. Requiring a prescription just don't make much sense, not least because it's unclear how you'd go about getting a prescription for contact lenses if your vision is fine to begin with.
And if you can buy a gold-and-diamond-encrusted grill for your teeth—also an FDA-regulated medical device, by the way, and one that comes with a list of potential health risks—without needing a prescription from a dentist, it seems like the same standard should apply here.
This is not merely a theoretical debate over the best way to regulate (or deregulate) costume eyewear. The mandatory prescription rule is one of the reasons why actual prescription contact lenses are more expensive than they should be. Because of the rule, most contact lens sales are handled by the same people who make contact lens prescriptions. It's an uncommon arrangement, and one that "leads to a cozy relationship between manufacturers and the doctors who can steer patients toward their brand," as Veronique de Rugy, a senior fellow at the Mercatus Center at George Mason University, put it in a 2016 piece for Reason.
"Prescriptions are brand-specific. This makes it difficult for consumers to shop around," she explained. "Choosing a different brand would require paying for another exam in order to obtain a new prescription."
Eliminating the contact lens prescription requirement would increase competition and lower prices by allowing consumers more freedom to shop around. It works that way in Europe and Japan, but the estimated 40 million Americans who wear contact lenses don't have that option. More affordable and readily available contact lenses would also allow more people who need corrective lenses to have them.
And of course, it would put an end to silliness like the federal government handing down a six-figure fine for selling a part of a costume.
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