us-ftc-advocacy-filings-8503ad9e804e9887a075d3ceb37afe58•FTC Staff Comment Before the South Carolina Legislative Audit Council Concerning Sunset Audits of Boards of Optometry and Opticianry
FTC Staff Comment Before the South Carolina Legislative Audit Council Concerning Sunset Audits of Boards of Optometry and Opticianry
us-ftc-advocacy-filings-8503ad9e804e9887a075d3ceb37afe58FTC Staff Comment Before the South Carolina Legislative Audit Council Concerning Sunset Audits of Boards of Optometry and OpticianryAdvocacy Filing
IUIl8IIIJ OF
CONSUMER iWiEC110N
. ('
Mr. George L. Schroeder, D1rector
Legislative Audit Council
state of South Carolina
629 Bankers Trust Tower
COlumbia, South Carolina 28201
Dear Mr. Schroeder:
The staff of the Federal Trade Commission is pleased to
respond to your invitation to participate in the sunset audits of
tile South Carolina Boards of Optometry and Opticianry ("Boards,,).l
This letter states our views on the manner in which provisions in
the Optometry and Opticianry Practice Acts (IIPractice Acts") and
regulations governing these Boards may affect competition for the
delivery of eye care service within the markets served by South
carolina optometrists and opticians.
In this letter we focus primarily on the statutory and rule
provisions restricting advertising and the use of third-party
solicitors by optometrists and opticians. Nondeceptive adver-
tising disseminates information about the individuals or firms
offering services that consumers may wish to purchase. This
process is beneficial to consumers because it facilitates pur-
chase decisions that reflect true consumer preferences and it
promotes the efficient delivery of services. We therefore urge
the Council to seek the repeal of those rules that restrict the
use of truthful, "nondeceptive advertising. We also comment on a
rule that unnecessarily restricts the commercial forms in which
optometrists may practice. This rule limits competition among
pzofessionals and may tend to raise prices, and we therefore
recommend that the Council seek its repeal as well.
The Federal Trade Commission is empowered under 15 U.S.C.
tl 4~ et seq. to prevent unfair methods of competition and unfair
or deceptive acts or practices in or affecting commerce. Pur-
suant to this statutory mandate, the Commission has attempted to
1 This letter represents the views of the FTC's Bureaus of
Consumer Protection, Competition, and Economics, and ~ot neces-
sarily those of the Commission. The Commission has, however,
authorized submission of this letter.
encourage competition among members of licensed professions to the maximum extent compatible with other legitimate state and federal goals. For several years, the Commission has been inves- tigating the competitive effects of restrictions on the business practices of state-licensed professionals, including optome- trists, dentists, lawyers, physicians, and others. The Commis- sion's goal has been to identify and seek removal of restrictions that impede competition, increase costs, and harm consumers with- out providing significant countervailing benefits. I. ADVERTISING RESTRICTIONS As a part of the Commission's efforts to foster competition among licensed professionals, it has examined the effects of pub- lic and private restrictions that limit the ability of profes- sionals to engage in nondeceptive advertising. 2 Empirical studies have shown that prices for professional goods and ser- vices are lower where advertising exists than where it is restricted or prohibited. 3 Studies have also provided evidence 2 See, ~., American Medical Association, 94 F.T.C. 701 (1979), aff'd 638 F.2d 443 (2d Cir. 1980), aff'd memo by an equally divided Court, 455 U.S. 676 (1982). The thrust of the AHA decision -- "that broad bans on advertising and soliciting are inconsistent with the nation's public policy" (94 F.T.C. at 1011) -- is consistent with the reasoning of recent Supreme Court decisions involving professional regulations. See, ~., Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985) (holding that an attorney may not be disciplined for soliciting legal business through printed adver- tising containing truthful and nondeceptive information and regarding the legal rights of potential clients or using non- deceptive illustrations or pictures); Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (holding state supreme court pro- hibition on advertising invalid under the First Amendment and according great importance to the role of advertising in the efficient functioning of the market for professional services); and Virginia State Board of Pharmacy v. Virginia citizens Con- sumer Council, 425 U.S. 748 (1976) (holding Virginia prohibition on advertising by pharmacists invalid). 3 Cleveland Regional Office and Bureau of Economics, Federal Trade Commission, Improving Consumer Access to Legal Services: The Case tor Removing Restrictions on Truthtul Advertising (1984); Bureau of Economics, Federal Trade Com- mission, Effects ot Restrictions on Advertising and Commercial Practice in the Protessions: The Case of Optometry (1980); Benham and Benham, Regulating Through the Professions: A Per- spective on Information Control, 18 J.L. & Econ. 421 (1975); Benham, The Effects of Advertising on the Price of Eyeglasses, 15 J.L. & Econ. 337 (1972).
that restrictions on advertising raise prices but do not increase the quality of goods and services. 4 Therefore, to the extent that nondeceptive advertising is restricted, higher prices and a decrease in consumer welfare may result. The Federal Trade Commission has examined various justifica- tions that have been offered for restrictions on advertising and has concluded that they do not warrant restrictions on truthful, nondeceptive advertising. For this reason, the Commission staff believes that only false or deceptive advertising should be pro- hibited. Any other standard is likely to suppress the dissemina- tion of potentially useful information and contribute to an increase in prices. Discounts, Bonuses and Premiums section 40-37-190 of the Optometry Practice Act imposes a flat ban on optometrists' "offer[ing] eye exams at a discount price or as a premium, the object of which is to induce the sale of ophthalmic services or materials. liS In addition, both the Optometry and Opticianry Practice Acts (§§ 40-37-180 and 40-38- 70, respectively) make it unlawful to offer or give eyeglasses, spectacles, lenses or any part used in connection there- with, as a premium or bonus with merchandise or in any other manner to induce trade or to give or offer to give anything of value • • • the object of which is to induce the examination of the eye or the sale of [oph- thalmic materials]. This restriction does not apply to g1v1ng "ophthalmic products incidental to the use of the product being offered" (such as eyeglass cases or cleaning solutions) or to discounts for vision care products, provided certain disclosures are made. We urge the Council to recommend the elimination of these provisions. These bans on discounts, premiums and bonuses 4 Bureau of Economics, Federal Trade Commission, Effects of Restrictions on Advertising and Commercial Practice in the Pro- fessions: The Case of Optometry (1980): Muris and MCChesney, Advertising and the Price and Qualitv of Legal Services: The Case for Legal Clinics, 1979 Am. B. Found. Research J. 179 (1979). See also Cady, Restricted Advertising and Competition: The Case of Retail Drugs (1976). S As interpreted by the South Carolina Attorney General, this provision forbids any person from offering any discounts on eye examinations. See 84 S.C. Ope Att'y. Gen. 142 (19a4).
deprive consumers of an important form of price competition that
can readily be conveyed through advertising, and we can envision
no consumer benefit from such restrictions. Moreover, the offer-
ing of such price terms not only can be of great benefit to con-
sumers, but also may be a valuable promotional tool for new prac-
titioners who are trying to establish themselves.
While we recognize the potential for deceptive schemes in
the offering of discounts, premiums and bonuses, we believe total
bans on such offers are overly restrictive and unnecessary. Both
the Practice Acts already contain appropriate general prohibi-
tions on untruthful or deceptive claims. Because any deceptive
schemes are likely to involve false or deceptive claims, they
would be prohibited under the current Acts.
Disclosure Obligations
Code sections 40-37-180 and 40-38-70 of the Optometry and
opticianry Acts, respectively, contain provisions requiring cer-
tain disclosures. The first of these appears to require that
discounts from a "standard" price other than the offeror's
"regular" price may be advertised only if the "standard" price
and its source are disclosed in the ad. If interpreted in this
way, this provision would effectively preclude the advertising of
certain across-the-board discounts (~., "ten percent off manu-
facturers' list on all frames and lenses"). Since it is imprac-
tical to state in an advertisement the standard prices and their
source for all of the goods and services covered by such an
offer, the proviso likely suppresses this form of truthful and
valuable advertising. Because it may harm consumers and
compe~ition, we suggest that the provision be eliminated. 6
Another provision in Code sections 40-37-180 and 40-38-70
requires that certain disclosures be made in all price advertise-
ments of ophthalmic goods and services. Such ads must state
whether: (1) an advertised price for eyeglasses includes single
vision or multi-focal lenses; (2) a price for contact lenses
refers to soft or hard contacts; (3) a price for ophthalmic mate-
rials includes all dispensing fees; (4) a price for ophthalmic
materials includes an eye examination; and, (5) a price for eye-
glasses includes both frame and lenses. 7 Any disclosure obliga-
6 It should be noted that at least one court has invali-
dated on First Amendment grounds similar requirements that
advertisements for discounted prices include all regular non-
discounted prices. South Ogden CVS Store v. Ambach, 493 F. Supp.
374 (S.O.N.Y. 1980).
7 Such disclosure requirements were permitted, but not
required, by § 456.5 of the Commission's Advertising of Oph-
thalmic Goods and Services Trade Regulation Rule ("Eyeglasses
tion increases advertising cost, either because it increases the length of the message or requires practitioners to forego some portion of the advertising message they would have delivered had the space not been taken by the disclosure. Unnecessary dis- closure requirements could therefore result in less information being made available to consumers. Consequently, we believe that disclosures should be mandated only where they are necessary to prevent deception. Because we do not believe that there is any- thing inherently deceptive about truthful price advertising, we recommend repeal of these provisions. Superiority Claims Both the Optometry and Opticianry Boards have promulgated regulations forbidding the "slightest intimation of having superior qualifications or being superior to other [licensees]" (§§ 95-1-E and 96-20.6, respectively). We urge the Council to recommend elimination of these rules. Bans on superiority claims clearly lessen competition among sel- lers. At a minimum they restrict comparative advertising, which can be a highly effective means of informing and attracting cus- tomers. When sellers cannot truthfully compare the attributes of their services to those of their competitors, their incentive to improve or offer different products, services, or prices is likely to be reduced. Bans on claims of superiority are particularly likely to injure competition and consumers when they are as broad as those in the Practice Acts, which forbid even the "slightest intima- tion" of superiority. Virtually all statements about a practi- tioner's qualifications, experience, or performance can be considered to be implicit claims of superiority. Bans on all such claims would make it very difficult for optometrists and opticians to provide consumers with truthful information about the differences between their services and those of their com- petitors. Solicitors Both the Practice Acts impose bans on the use of solicitors to obtain patronage (§§ 40-37-220(15) and 40-38-220(15), respec- tively). These prohibitions appear to unnecessarily preclude optometrists and opticians from hiring third parties to assist in marketing vision care services and products. Restrictions that prohibit all third-party solicitation, inclUding solicitation in situations where there is little or no risk of coercion, IfI), which was remanded in American Ootometric Association v. ~, 626 F.2d 896 (D.C. Cir. 1980). The co:rmnission has chosen not to reissue the remanded portion of Eyeglasses I.
harassment, or similar abuses, may unnecessarily restrict the dissemination of truthful information about and sales of vision care services and goods to willing and competent purchasers. Similarly, restrictions that permit only licensed optometrists and opticians to engage in solicitation unnecessarily limit the ability of businesses to disseminate information that is bene- ficial to consumers and for which the professional expertise of an optometrist or optician is not required. In certain circumstances third-party solicitation could conceivably result in overreaching or undue influence. See Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978). But this does not justify prohibiting all third-party solicitation, just as the possibility of deception does not provide a legiti- mate basis for banning all advertising. The Federal Trade Com- mission considered the concerns that underlie the Ohralik opinion when it decided American Medical Association, 94 F.T.C. 701 (1979), aff'd 638 F.2d 443 (2d Cir. 1980), aff'd memo by an equally divided court, 455 U.S. 676 (1982). After weighing the possible harms and benefits to consumers, the Commission ordered the AKA to cease and desist from restricting solicitation, but peraitted the AHA to proscribe uninvited, in-person solicitation of persons who, because of their particular circumstances, may be vulnerable to undue influence. We suggest the Council consider this standard, which protects consumers while allowing them to receive information about available ophthalmic goods and ser- vices. Professional Affiliations Both the Optometry and opticianry Boards have rules pro- hibiting the use of positions in professional organizations "for advertising purposes or for self-aggrandizement" (§§ 95-1(F) and 96-20(7), respectively). These rules may prevent the dissemina- tion of information about eye care professionals that many con- sumers would find helpfUl in selecting professionals. Membership in organizations that devote time and resources to studying par- ticular areas of vision care may well indicate skill in that area. While information about membership in an organization may be communicated in a deceptive manner, the mere possibility of deception does not justify a total ban. The Council should urge the replacement of this broad ban with more limited restrictions on deceptive statements concerning one's professional affili- ations. Office Displays The Optometry Board has adopted several additional rules that appear to restrict optometrists' business practices unneces- sarily but provide no apparent consumer benefit. Rule 95-1(D) forbids displaying licenses, diplomas or certificates where they are visible outside the office. Rules 95-1(H) and (K) ,forbid
displaying eyeglass signs, lenses and frames in optometric
offices. These provisions preclude the use of office space to
inform consumers of optometrists' educational backgrounds and
ophthalmic products available for sale in their off~ces. We can
envision no consumer benefit from such restrictions and recommend
their repeal.
II. COMMERCIAL PRACTICE RESTRICTIONS
We also recommend that the Council consider revisions to a
restriction on the commercial manner in which optometrists may
practice. We believe that this restriction may not be in the
best interests of consumers.
Office Locations
Board Rule 95-1(N) forbids the opening of optometric offices
in business establishments such as jewelry, department or other
stores. We are concerned that this provision may unnecessarily
hamper optometrists who wish to market their services in a cost-
efficient manner. 8 For example, banning the practice of optome-
8 On January 4, 1985, the Commission proposed an Ophthalmic
Practices Trade Regulation Rule ("Eyeglasses II") that would
prohibit state-imposed bans on locating in retail centers, bans
on employment or other business relationships between optome-
trists and non-optometrists, bans on nondeceptive trade names,
and bans on branch offices. The Commission stated in its Notice
of Proposed Rulemaking that public restraints on the permissible
forms of ophthalmic practice appear to increase consumer prices
for ophthalmic goods and services, but do not appear to protect
the pUblic health or safety. See 50 Fed. Reg. 598, 599-600
(1985) •
The Commission staff has recently published its report on
the proposed rule. The staff concluded that lithe rulemaking
record demonstrates that these restrictions raise prices to
consumers and, by reducing the frequency with which consumers
obtain vision care, decrease the quality of care in the market. II
The staff also concluded that the restrictions provide no
quality-related benefits to consumers. The staff therefore
recommended that the Commission promulgate a trade regulation
rule prohibiting these restrictions. Bureau of Consumer Pro-
tection, Federal Trade Commission, Ophthalmic Practice Rules:
State Restrictions on Commercial Practice (1986).
While the Presiding Officer also found that commercial prac-
tice restrictions raise prices to consumers and limit access to
eyecare, he did not believe that the evidence cited in the two
commission studies, discussed infra at 12-14, provided an
adequate basis upon which conclusions about the qualit~ of care