To regulate or not to regulate, that is always the question.

For years now, lobbyists representing the American Optometric Association (AOA), regulators from the Federal Trade Commission (FTC), and eye-care professionals have been trying to negotiate terms for regulations on contact lens prescriptions.

Currently, as per the 2004 Contact Lens Rule, doctors are required to provide prescriptions automatically after the completion of a finished contact lens fitting. But an “amendment” of sorts has been proposed, the Contact Lens Consumer Health Protection Act (CLCHPA, S.2777).

The CLCHPA aims to require every contact lens seller “to provide a toll-free telephone number and email address that prescribers can use to ask questions about a seller’s prescription verification request.” Additionally, the bill would require that the supplier “maintain a sufficient number of working telephone lines operated by live persons to enable ready access by prescribers to the service.”

What constitutes “a sufficient number” of telephones? This vagueness is a big problem, especially when they tack on a fine of $40,000. Minus the fines, lawsuits are costly in not just money, but time.

Another problem with the bill is that it restricts sellers from filling the prescription with contact lenses that are not “exactly the same material, design, and power as manufactured by the company.” On top of that, there are several rules to provide “generic” contact lenses: first, the modified contact lens needs to be included in the prescription by the doctor, second, they need to be manufactured by the same company, and, lastly, sold under multiple labels to individual providers.

Bills like this only reduce the size and supply in the market, while also diminishing future health benefits from better contact lenses. Since the supporters of this bill are also calling for a new “study to examine the adverse and potentially adverse effects on consumers of violations by sellers,” it is safe to say that their argument is to protect consumers’ health. But upon closer analysis, even this argument is a legal hocus pocus.

According to the American Academy of Ophthalmology (AAO), about 1 million people a year get eye infections related to contact lenses. At first glance, that number seems huge. But it easy to blame someone for a problem they didn’t cause. In a study by the CDC, of the 41 million contact lens wearers, nearly all engage in “risky eye care behavior that can lead to eye infections.”

From their 2015 report, 82.3 percent are keeping their contact lens cases for too long, 55.1 percent are adding new solution to the existing solution instead of emptying the case out fully before adding new solution, and 50.2 percent wear their lenses while sleeping. Per the CDC, “each of these behaviors has been reported in previous studies to raise the risk of eye infections by five times or more.”

There is no causal relationship between the lenses and infections, but rather it is a relationship between bad practice on the side of the wearers. Using an example from the nonsteroidal anti-inflammatory drugs (ibuprofen), there are about 3443 deaths per year, per the FDA. Yet, generics can be sold from CVS to Amazon.

Should these generics not be sold and regulated by prescription? The answer is simple: any rational and responsible adult should be able to use these drugs. And if someone were to die from overdose, it is not because of the supplier, but rather largely attributed to the misuse by a consumer.

It becomes clear that the debate for regulation is due to regulatory capture. Lobbyists and the AOA are aiming to kick out their competition by over-regulating them – a textbook example of crony capitalism.

Instead of passing laws that would stifle the market, legislators and policy-makers should spend their time assessing these regulations and perhaps begin a call for the removal of these antiquated laws. If our representatives truly care about the market and public health, their efforts would be best spent removing these burdensome regulations. If done, the market would see the entry of new suppliers. In effect, this would push down prices and create a market where consumer have more options.

To regulate or not regulate? In this case, as in most cases, the answer is not to regulate. 

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