ARGUMENTS AGAINST RELEASE
Eye-care practitioners cite two reasons in defense of their practice of withholding prescriptions: (1) liability and (2) consumer eye health. The argument involving liability is simply that, if alternative suppliers incorrectly provide the wrong contact lenses, the eye-care practitioner can be held liable. While the ability of plaintiffs' lawyers to create liability theories is endless, physicians are not normally held liable when a pharmacist provides the wrong drug in response to a prescription. It is unclear how misfilling a contact lens prescription by a pharmacist, for example, would create grounds for liability for the eyecare practitioner.
The second argument against releasing prescriptions involves consumer eye health. By withholding prescriptions, eye-care practitioners argue they are ensuring the patient comes back for eye care. If a consumer wants a new batch of lenses, the eye-care practitioner theoretically uses the trip to the office to check the general eye health by a range of activities, from having a receptionist or nurse interrogate the consumer or by having the eye-cart practitioner actually perform an examination This "consumer health" argument is based on a contention that a contact lens, a "medical device," somehow requires an eye care professionals' care and attention at every possible wearing of both the original and replacement lenses. In fact, as a Class II medical device, a disposable contact lens is subject to the same standards of FDA review as a toothbrush.
As such, it is clear that to claim that contact lenses should be marketed only by eye-care professionals, is to claim they are only safe to use after the inspection of each and every lens by an eye-care practitioner. In fact, almost all manufacturers now provide direct shipment of replacement contact lenses to consumers as a matter of general commercial practice. Our investigation has revealed that many eye-care practitioners mail replacement contact lenses to their patients without an office visit during the life of the prescription.
Purchasers from alternative channels have had no greater ocular health problems than purchasers from eye-care practitioners. Our multistate investigation has failed to reveal any study showing any correlation between compromised ocular health and receipt of lenses through alternative channels. Many other medical products, such as pharmaceutical drugs, have been and are regularly dispensed safely via these same alternative channels of distribution. Clearly, if these methods of distribution are acceptable for prescription drugs, which can cause far more potential harm if the prescription is filled improperly than an improperly filled contact lens prescription, then using the alternative channels of distribution for contact lenses should be acceptable as well. Prescription drugs are widely available through grocery stores, mass merchandisers, pharmacies and through mail order and require only that the consumer have a prescription readily available. The more than 26 million consumers who use soft contact lenses should have the same financial and convenience benefits available to them as those consumers who purchase prescription drugs or eyeglasses.
CONCLUSION
The foregoing comments are submitted to demonstrate the need for continuing the Prescription Release Rule. Moreover, the Attorneys General believe the interests of consumers will be best served by expanding coverage of the rule to contact lenses.
Unfair Rx release practices...
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