us-ftc-advocacy-filings-9d0a2fac5e42cf408460a5ff4cc3456c•FTC Staff Comment Before the Virginia State Board of Optometry Concerning Proposed Optometry Regulations
FTC Staff Comment Before the Virginia State Board of Optometry Concerning Proposed Optometry Regulations
us-ftc-advocacy-filings-9d0a2fac5e42cf408460a5ff4cc3456cFTC Staff Comment Before the Virginia State Board of Optometry Concerning Proposed Optometry RegulationsAdvocacy Filing
L'ITEU ST ... TE.~ 01 ... \lERI( ... FEDERAL TRADE CO\1\lISS10'\ ~...:l=O£ A"; :),. :a""s\,.iV£ ~ PR~:),~·f CTtOt. .ll.pr-:d 15, 19SE Mrs. Moire. Lux Executive Director vir3inia State Boarj of Optometry 517 West Grace Street P.O. Box 27708 Richmond, VA 23261 Deer Mrs. Lux: The Federal T~ade Commission's Bu~eaus of C~nsumer Protection, Economlcs, anj Competition- are pleased to submit this letter in response, to your request for public comments on re g ulation9 proposed for adoption by the Virginia State Board of Optometry. As you are ?ware, we submitted comments in 1984 to Richard Morrison, Re9Ulatory Review Coordinator, and in 1985 to Ralph Axselle, Chairman of the Governor's Regulatory Reform Advisory Board, concerning laws and regulaJions governing a number of professions, including optometry. Because the laws concerning optometry and the proposed regulations of the Board of Optometry contain the same provisions that we commented on in our earlier let~ers, we resubmit those comments in their entirety and only briefly mention herein those ~rovisions we continue to believe should be modified. We are pieesed to note that since we lest submittej comments, the Governor's Reguletory Reform Advisory 1 These com~ents represent the views of the Bureaus of Consumer Protec~ion, Economics, and Com~etition of the :ederal Trade Commission and do not necessarilv represent the views of the Commission or any individual Co~~issioner. The Commission, however, has authorized the subrr.ission of these comments. 2 Our comments are directed o~ly to those provisions thet deal with advertising, trade names, commercial practices, or prepaid optometric plans. We offer no opinion on the legality or cesirability of other portions of tne proposed re9ulations. 3 Letter to Richerd Morriso~ from Carol T. Cr3~ford, Direc~or, Bureau of Consume= Pro~ec~ion, S~ptember 14, 1954 (hereinafter referred to as "Morriso~ letter"), and le::er to Relph Axselle from Carol T. Crawford, Director, Bureau of Cons~mer Protection, May 22, 1985 (hereinaf~er referred to e5 "Axselle le~ter"). Copies of both le~ters are attached.
i I Mr s. Mo ira Lu x -2- 4 Board and the Task Force on Regulatory Review of the Virginia Commission of Heal:h Regula:ory Boards have issued reports supporting many of the posltions advan~ed in our comments. 4 We a~?laud the Board's efforts to reorganize and simplify its rules concerning advertisin;. We are also encouraged by the Board's de~ision to allow limited use of trade names. We do, however, have some concerns with proposed changes in these areas. Perhaps more importantly, the statutory restraints on advertising, use of trade names, commercial practice, and prepaid optometric plans that we discussed in the att3ched comments remain in effect. Without Board support for changes in these statutes, the stated goal of identifying and removing "both statutory and regulatory policies that impede competition, increase cost, or otherwise h3r~ consumers without providing countervailing benefits in public protection"~ will not be achieved. Advertisin~ Re~ulations We support the Board's de:ision to elimina:e regulations that imposed unnecessary disclosure requiremen:s and limited the size of print type that could be used in advertising. However, as discussed in owr prior co~oents (Axselle letter at P? 2-3), we continue to have concerns with a provision in proposed Rule 3.13. That provision states that advertising is to be considered false, misleading, and deceptive if the advertisement provides price information without stating what goods and services are included in the price. This provision could be interpreted to require lengthy disclosures that are not necessary to prevent deception, and may increase advertising costs and ultimately ra~se prices to consumers. Once again, we urge the Board to reconsider the need for this provision. In our previous comments (Morrison letter at po. 2-3 and Axs~lle let~er at p. 3), we also asked the Boa:d to recom~end the repeal of Virginia Code Sections 54-388(A)(2}(j) and 54- 395(9)(ii}, which prohibit claims of superiority and advertisin~ of free services. We belie~e that these statutes un~ecessarily restrict nondeceptive advertising. Without the removal of these Final Report of the Governor's Regulatory Re:orm Advisory Board (Oct. 21, 1935) [hereinaf:er cited as "Governor's Report"). Report of the Task Force on Regulatory Review o~ the Virginia Commission of Healt~ Re9ulatory Boards (M~y 1985) [hereinafter cited as "Task Force Report n ]. Portions of the Task Force Report are included as Appendix H of the Governor's Repor~. 5 Task Force Report, suora note 4, at 15.
M~s. Moi~a Lux -3- stat~~ory barriers, beneficial revisions of the Board's rules may je rendered meaningless. Thus, we join with t~e Governor's Re~~latory Reform Advisory 30ard in encoura3ing the Board of O?:ometry to request le~is~ation that will re~ove unnecessary restraints on advertising.o Traj e ~~ a ~ e s The B03rd has proposej a series of rules ~~at would allow limited use of trade names by optometrists. While these changes are a measurable improvement over the existing ban on the use of trade names, some of the restri:tions included 1n proposed Rule 4.1. appear to go beyond what is necessary to prevent deception and guarantee accountability of optometrists to their patients and the Board. For the reasons st3teo in our previous com~ents (Axselle letter at P? 3-7), we ask the Board to reconsider the need for proposed sections 4.11>.. 2. and 4.1A.3. (restrictions which seem to li~it the use of a traje name comprising the name of one or more of the optometrists in a' practice to the office location where the named optometrists practice); 4.1B.2. (ban on practicing under more than one trade name); 4.1A. and 4.1B.3.(a) (requirement that all advertisements using trade names include the name of at least one optometrist associated with the office); and 4.1B.9. (ban on use of trade names that contain the names of deceased or retired optometrists). In order for any final re9~lations allowin9 the use of trade names to be effective, however, there must be correspondinJ changes in the applicable statutes. Therefore, we join with the Governor's Regulatory Reform Advisory Board and the Task Force in urging the Board of Optometry to recommend necessary modifications to Virginia Code Section 54-388(9), which bans the use of trade names. I COIT~ercial ?ractice Res~:ictions In our earlier comments (Morrison letter at pp. 3-6), we discussed the potential harm to consumers that may arise from statutory restrictions on the ability of optometrists to split fees with non-optometrists and to lease ~pace from or work as employees of a commercial establishment.c ~e are pleased that the Governor's Regulatory Reform Advisory Board re:ommended that the Board of ~?tornetry "review these statutes ~ith an eye towards 6 Governor's Re;>ort, SUDra note A at 24-25. " , 7 1d. at 24-25; Task Force Report, su'Ora note ! at 9. .., , 8 Va. Code §§ 54-388(.~)(2)(i}, 54-388(A)(2)(k), o:;d 54-397.1.
proposing cha~ges to the Governor and t~e General Assem~ly."9 support this recom~endation because ~e believe restrictions on commercic~ practice rejuce co~peti:ion in the market fo~ optometric services and ffiay un~ecessarily raise prices. I I I II I .'1rs. Moi~a L~x -4- He We also expressed concern in our previous comments (Morrison letter at pp. 6-8\ that statutory provisions governing prepaid optometric pla~slO appear to be unnecessarily restrictive or have anticompetitive effects that do not appear to be outweighed by any countervailing benefits to the pu~lic. We again encourage the Board to reconsider our previous comments and to reco~~end legislation that would remove these restrictions. Conclusion with the exception of our stated reservations concerning Rules 3.1G., 4.1A., and 4.13., we support adopt.ion of the proposed regulations. Revision of the Board of Optometry's regulations alone, however, will not result in the fullest possible benefits to the citizens of Virginia. We hope the Board will nOw recommend that the General Assembly make those statutory changes that would per~it the public to have access to a wider range of truthful' inform~tion cbout. optometric services. Together with the General Assembly anj the Governor, the Board can create a regulatory structure that will allow valua~le competition among optometrists and, in the process, improve the efficiency with which optometric services are delivered, while still protecting consu~ers fro~ false or decep~ive advertising. v~urr:- "~',ly -~~~ \~~~~anda B. pede~ J..:ting Director Enc:osures 9 Governor's Re?ort, sunra no~e 4, 10 Va. Code §§ 38.1-898, 38.1-903, 38.2.-904, 2:JG 33.1-9D9.
I I II I .. FrDEUL TRA!>£ COMMISSION WA.SHI~. D. C. 20110 September 14, 1984 ~r. Richard Morr16on Depar~ent of Bealth Regulatory Boards Common~ealth of Virginia 517 West Grace Street P.O. Box 27708 Richmond, VA 23261 Dear ~r. Morrison: The Federal Trade commissi?n's Bureaus of Consumer Protec- tion, Economics and Competition are pleased to respond to your invitation to assist you in your revie~ of the statutes and regu- lations enforced by the Virginia State Board of Optometry and Veterinary Medicine by providing comments concerning the competi- tive effects of various restrictions on optometrists and veteri- narians. The Federal Trade Commission seeks to promote the national policy of encouraging competition among members of licensed pro- fessions to the maximum extent compatible ~ith other legitimate state and federal goals.' For 'several years, theComrcission has been investigating the effects of restrictions'on the business practices of professionals, 'including optometrists, dentists, la~yers, pnysicians and others. Our goal is to identify and seek the removal of such restrictions that impede competition, increase costs and harm consumers without providing countervail- 1'ng benefits. In offering these comments, we acknowledge that we are not in a position to offer advice on what ~inimum level of qU3lity of care the states should require. I. Restrictions on Advertising by Optometrists and Veterinarians Advertising ·serves to inform the public of the avail- ability, nature, and prices of products and services, and thus performs an indispensable, 501e in the allocation of resources in a free enterprise system.- Because of the significant benefits 1 These comments represent the vie~s of the Bureaus of Consumer Protection, Econo~ics and Competition of the Federal Trade Com- ~is6ion and do not necessarily represent the views of the Federal Trade Co~~ission or any individual Commissioner. The Federal Trade Commission, ho~ever, has reviewed these comments ~nd has voted to ~uthorize their pre~entation. 2 Bat e s v. S tat e Ear 0 f Ar i z0 na, "3 3 O. S. 350, 36" (19 77 ) •
Ii : ' tnat CAn .ccr~e to con,u~ers froz nondecept1ve Advertilin9, ~e believe that only tAlse And deceptive advertilin9 ahould be pro- hibited. Any other standard is llkely to luppre.a potentially useful infor~ation and may ~el1 contribute to an increase in price,. Studies have ahown that price. tor profel.ional service, are l~~er where adverti.ing txists thAn ~here it i, prohib- ited. Studies nave allo shown that .dvertising, ~hic~ lead. to lower prices, does not lead to lower quality services. There- fore, to ~e extent that nondeceptive advertising is restricted, higher prices and a decrease in consumer welfare Kay ~ell result. Certain provisions of the statutes and regulation5 governing the practice of optometry and veterinary ~edicine in Virginia do restrlct truthful adverti5ing. for example, Virginia Code 55 54- 388(A)(2)(d) and 5.-396(9)(ii) prOhibit optometric advertising that ·directly or indirectly· contains a clai~ of ·professional 6uperiority.- Similarly, the Board of Veterinary Medicine's Regulation lS-J defines as unprofessional conduct any advertising that -directly or indirectly makes claims of professional superiority.- SUCh prohibitions on claims of superiority clearly lessen rivalry among competing tellers, and the effects of the restric- tion ~ill depend on tne extent to ~hich it prevents the communi- cation or truthful information. At a minimum, A prohibition on advertisements that contain claims of superiority restricts com- parative advertising, which can be a highly effective ~eans of informing and attractiny customers and a~ important competitive force. Wh~n a s~ller cannot compare "the attributes of his or her s~rvice to-those of his or her c6mpetitors, the incentive "to improve or to offer different products, services, or prices is li~ely to be reduced. 3 Boreau of Economics, Federal Trade Commission, Effects of Restrictions on Advertising and Commercial Practice in the Pro- fessions: The Case of Optometry (1980) (discussed at pp. 5-7 below); Benham' Benham, Regulatinq through the Professions: A perspective on Information Control, 18 J.L •• Econ. ~21 (1975); 8ennam, The Effects of Advertlslng on the Price of Eyeglasses, 15 J.L. , Econ. 337 (1972). • Bureau of Economics, Federal Trade Commission, Effects of Restrictions on Advertising and Commercial Practice in the Professions: The Case of Optometry (1980) (discussed at pp. 5-7 belo~)i J. Cady, Restricted Advertising and Competition: The Case of Retail Drugs (1976); McChesney « Muris, The Effects of Advertising on the Qualitv of Leaal Services, 65 A.B.A.J. 1503 (1979); Muris • McChesney, Advertisina and the Price and Qu~litv of Leaal Services: The Case for Leaal Clinics, 1979 Am. B. Found. Research J. 179 (1979) •.
I I A ban on cl&i&, of luper10r1ty 1. likely to ~ eVln aort injurioul to competition and conlum.r. if 1nterprtt~ to ~roh1b1t 4 ~lder rAnge of truthful claim.. Virtually all .tatementl about a aeller'. qualifications, experience, or ptr!oraance can be conaidtred to be i~plicit claims of .uperiority, and a ban on all such C1Ai~s would ~aKe it very difficult for & leller to provide con£u~er, truthful infor~Ation About the differences between his services and those of his competitors. Virginia Code S S~-388(A)(2)(d) also prohibits the adverti!- lng of ofters of free optometric services or ex~inations. ~e are aware of the potential for -bait and switch- and other decep- tive schemes in such advertising. However, we do not believe that a total ban on the offering of free services is necessary. Truthful advertising of the availability of tree services CAn obviously be of great ~nefit to consumers: also, such offers can· be a particularly valuable promotional tool for new practitioners ~ho are trying to enter the market. finally, Regulation 15-r of the Board of Veterinary Medi- cine's Rules and Regulations defines unprofessional conduct to includ~ ·utilizing the services of solicitors.- This rule may in some instances impede the flow of truthful commercial infor~ation from veterinarians to potential clients. Such restrictions on the free flo~ of information may make it more difficult for buyers to learn about differences in price and quality, thereby insulating competitors from direct competition and reducing the incentive to compete on the merits. Although a state may insist ~hat solicitors_ be beld to the same standard of-cond~ct as the professionals that they repre~ent, and a past pattein- of ~buses may warrant regulations tailored to prevent specific abuses, a blanket ban on the utilization of solicitors is overly broad to be a justifiable form of professional regulation. II. Restrictions on Other Business Practices by Optometrists and veterinarians Other provisions of the statutes and regulations governing the practice of optometry in Virginia restrict business practices other than advertising. for example, Virginia Code S 54-388 (A)(2)(i) prohibits the dividing of professional fees ~ith non- optometrists. This provision may restrict partnerships or other business relationships between optometrists and other health care providers (such as dentists or podiatrists) ~ho ~ight provide complementary health care services at a single office location. Virginia Code 5S 54-388(A)(2)(k) and 54.397.1 make it illegal for an optometrist to be employed by or locate gis or her practice at a ·commercial or mercantile establishment.- 5 Section 54-388(A)(2)(K) does allow such an establishment to employ an optometrist if it employed a full-time optometrist on (footnote continued) 3
S1=ilArly, BOArd of Veterinary Kedicine ~e9ul~tion lS~C bani ~he prActice of veterinary medicine by a Ie.lee 01 any co~erciAl or ~ercAntile et.bliahment. These provisions prevent opto&ttrilt. And veterinarians trom loclting their practices inside retail drug or depar~ent .tores, vhere they can ~.tlbli.h and aaintain A nigh volume of patients beCAu.e of the convenience of auch locations And a high number of ·walk-in- patients. This higher volume ~ay, in turn, 6llo~ profelsional firms to reali%c economies of .cale that may ~ passed on to consumers in the form of lower prices. These restrictions allo SAy li&it the Avail- ability of equity capital for profe£sional practices, which increases the cost of capital to professional firms And further hinders the development of high-volume practiccs that may be able to reduce costs through economics of Beale. . Virginia Code S S.-388(A)(2)(g) and Board of Optometry Regulation 11-0 prohibit the use of trade names by optome- '. trists. Trade names -- such as ·Fourth Street Contact Lens Clinic· or ·Southern Vision Care Centers· -- can be virtually essential to the establishment of large group practices and chain operations that are able to exploit economies of scale and, consequently, to offer ~o~er prices. Trade names are chosen because they are easy to remember and may also identify the loca- tion or other characteristics of a practice. OVer time, a trade name ordinarily comes to be associated with a certain level of quality, service ~nd price, vhich facilitates consumer search. ,These kinds of restrictions on the business practices of professionals can reduce competition in heal~h care markets by preventing 'the formation and deveropm-ent of innovative forms of' professional practice, such as chain optometric firms, that may be more efficient, provide comparable quality, and offer competi- tion to traditional providers. Por example, in a case challeng- ing various ethical code provisions enforced by the American Medical Association (-AHA-), the Commission found that AKA rules prohibiting physicians from working on a salaried basis for a hospital or other lay institution and from entering into partner- ships or similar relationships yith non-physicians unreasonably restrgined competition and thereby violated the antitrust laws. The Commission concluded that the AMA's prohibitions kept physicians from adopting more economically efficient business formats and that, in particular, these restrictions preclUded competition by organizations not directly and completely under the control of physicians. The Commission also found that there yere no countervailing procompetitive justifications for these restrictions. June 3, 1938. 6 In re American Medical Association, 94 F.T.C. 701 (1978), aff'd, 638 F.2d.' 443 (2d Cir. 1980), aff'd memo by an eoua11y divided court l 455 U.S. 676 (19£2). · .
Proponent. of auCh re.trictions clli~ tb~t Lhey Irt nece.- lary to ~~int&in a hi9h levtl of QUI11ty 1n tht prottl.1onal .tr- victs zarket. ror example, ~ey clai= thAt .aploytt-ezploytr and other relationships between prOft •• lonal, a~ non-profe.sionals ~ill result in lay interference 1n the proftl5ional judgment of licensees, thus causing I decllne in qUlllty. Thty IIBert that lay corporations .uch IS chain retailer, would ~ unduly con- cerned wi~ profitt, not with the quality of professional care. Allegedly, voile .uch firms might offer lover pricts, they ~i9ht also encourage their professional employees to cut corners in order to maintain protits. According to those who favor restric- tions, the public vould suffer doubly because profession~ls who practice in traditional, non-commercial settings would ~ forced to lower the price and quality of their services in order to compe te. 'lhe Federal Trade Commission's Bureaus of Economics and Consumer Protection have issued t~o studies tnat provide evidence that restrictions on commercial practice by optometrists including restrictions on the business relationShips between optometrists and non-optometrists, on commercial locations and on trade- name usage -- ar~, in fact, harmful to consumers. The first study,7 conducted~itn the help of two colleges of optometry and the chief optometrist of the Veterans Administra- tion, compared t~e price and quality of eye examinations and eyeglasses across cities ~ith a variety of legal enVironments. Cities were classified as markets ~~re advertising was pr~sent if· the r e was adve r tis i n9 0 f eye g 1 ass e s 0 r eye e xam sin loci1 . newspapers or ·Y~llowPages.· Cities were classified .as markets with cnain optometric practice if eye examinations were available at l~rge interstate optical firms. Since restraints on corporate practice of optometry, commercial locations and trade name usage n~cessarily restrict the operations of chain optometric firms, the study provides important information on the likely effects of such restrictions. The study found that prices Charged in 1977 for eye examina- tions and eyeglasses ~ere significantly higher in cities without chains and advertising than in cities ~here advertis~ng and chain firms were present. Tne average price charged by optometrists in the cities vithout chains and advertising ~a5 33.6\ higher than in the 'cities with advertising and chains ($9.(.46 versus $70.72). Prices were approximately 17.9% higher as a function of the absence of chains; the remaining price difference was attributed to the absence of advertising. 7 Bureau of Economics, Federal Trade Commission, Effects of Restrictions on Advertising and Commercial Pr~ctice in the Professions: The Case of Optometry (1980). 5
I I /j Th~ data al.o .ho~fd that th~ Quality of vlslon care wa. not lo~er in cities wher~ chain opto~etric practict and advertising were pre.ent. The thocougnne'8 of eye fIAminations, the accuracy of eyeglass prescriptions, the accuracy and ~orl~An'hip of eye- 91A6sfs, and the extent of unnecessary prtscribing wert, on AverAge, the lame in the both types of citie£. The second £tucy co~pAred the cost and Quality of cosmetic contact lens fitting by various types of eye care profeS6ional5. 8 Tnis stue,., was designed and conducted with the assistance of the ~a)or natlonal professional associations representing ophthal- ~ol09ists, optometrists and opticians. Its findings are based on examinations and interviews of more than 500 contact lens wearers in 18 urban areas. The study found that there were few, if any, ~eaningful dif- ferences in the quality of cosmetic contact lens fitting provided by ophthalmologists, o~toroetrists, and opticians. The study also showed that, on average, ·corom~rci~l· optometrists -- that is, optometrists who worked for a chain optical fir~ or advertised heavily -- fitted contact lenses at least as well as other fitters, but charged significantly lower prices. These studies provide evidence that restrictions on employ- ment, partnerShip, or other relationships between professionals ana non-professionals, on commercial locations and on trade name usage tend to raise prices above the levels that would otherwise .prevail, but do not. seem to raise tne quality of care in the vis ion car € mar ke t . Al the ugh the s est udie·s de a1 s pe c i fie a 11 y ~~ith restrictions on the practice of optometry, the results may be applicable to analogous restrictions in other areas, such as veterinary medicine. 111. Restrictions on Prepaid Optometric Service Plans We also have revie~ed Chapter 27, Title 38.1 of the Virginia Coqe, relating to Plans for Future Dental or Optometric Services, an9 have identified several provisions that appear to be unneces- sarily restrictive or ~hose anticompetitive effects may out~eigh any countervailing benefits to the public. Virginia Code S 38.1-898 requires that a ~ajority of the board of directors of a prepaid optometric service plan be optometrists. It is not apparent ~hat public benefit results from requiring provider control of all plan boards. We are una~are of any reason ~hy consumers, entrepreneurs, and others sbould not also be permitted to establish and operate such plans in competition ~ith provider-controlled plans. Such lay boards a Bureaus of Consumer Protection and Economics, federal Trade Commission, A comparative Analysis of Cosmetic Contact Lens Fitting by Ophthalmologists, Optometrists, and opticians (1983). 6
I Iii CAn certlinly obtAin Any neCt •• Ary prof"lionAl .1~rt1't v1t~out hAvio9 provider. control the plan'. board of director •• Section 38.1-903 rtQuirt. th.t optometric lervice plan lub- scriber, bave -fret choice of lny participltio9 ••• optome- triat. 8 So~e .tat~G interpret .uch clauaes to require that participatlon be open to any licensed provider. If this aection i£ interpreted in this vay, it in fact could rt£trict the choices Available to consu~ers. Mandating free Choice of provider in all prepay~ent pro9ra~s prevents plans trom offerin;, And .ubscri~r, from freely and volunt~rily choosing to enroll in, programs that may li~lt subscriber choice of participating providers. Such plans, in turn, ~ay lo~er program costs by a~lecting less expen- sive and more quality-conscious providers, and ~ay generate competitive pres£ur~ on all prOViders to control costs or raise qu~lity. This concept is evident in both healtb maintenance organizations (·SKOs·) and preferred provider organizations (8PPOS 8 ). As you know, Virginia w~s one of the first states to pass legislation authorizing PPO arrangements, and the mandatory 8free choice 8 provision of Section 38.1-903 appears to ~ at odds ~ith the purpose and intent of that ~ore recent statute. In its case against tne American Medical Association, the Commission found that the origin and history of the medical profession's insistence on this type of provision for prepa~ent plans -makes clear that the purpose ••• is primarily the anticompetitive one of suppressing the activ~ties of competitors, not solicitude for the rights of patients. 8 Section 38.l~904 denies the Insurance Commission discretion to license more than one plan in a given geographic area if - -licensing more than one plan for "t.he same geographical area ... ill not promote the public ~elfare.· Wnile we do not know ho~ this provision in fact has been applied or ~ill be applied, it could be used to protect current market participants from competition from ne ... market entrants, or at least to discourage such ne ... entry. In any event, it does not appear to serve any substantial public interest. Section 38.1-909 provides that prepaid optometric service plans subject to this chapter 8 s hall not engage in any other business,· ~ith the exception of governmental health care programs. This restriction may unnecessarily prevent plans from diversifying and offering their subscribers additional products or benefits packages that may be more convenient and desirable. For example, many commercial insurers have offered coverage packages to employers that include accident and health insurance, dental benefits, life insurance, ~orKers' compensation coverage, and even pensions and annuities. Permitting optometric plans to diversify in ~t least some ways to meet market demands -- sub- ject, of course, to appropriate regulatory oversight -- ~ay help 9 In re ~erican Medical Ass~ciation, supra n.7 at 1015. 7
I III tl')ezt to be ~or~ t!!~ct1vt coztpetitors And better .eet the n~ed, of the pUblic. In conclusion, than~ you for your ~1llin9ne" to consider our co~~nts. We Ire enclosing copies of the Itudie, referred to in our comments. Please let us know if ~e can ~ of any further a.51stance. Sincerely, I \ . • J • Carol T. Crawford Director Bureau of Consumer Protection Enclosures 8
I: ." . tI. .. ~ FtDER,lJ. TRADE: COMMISSION WUHIN~OH. D. C. 20HO ,v'U.AU or coI'(stnoQ:.1 n OTt rno ~ May 22, 1905 The Bonorable Ralph L. Axselle, Chair~~n Governor's Regulatory Reform Board General Assembly Building Co~on~eal~ of Virginia 910 Capitol Street Richmond, VA 23219 Dear Mr. Chairman: The Federal Trade Commission's Bureaus of Consumer Protection, Economics, ~nd Competition are pleased to respond to the invitation of Richard D. Morrison, Regulatory Revie~ Coordinator, to assist you in the ongoing revie~ of health ?rofessio~a1 regulatory boards by the Co~~on~ea1th of Virginia. As you are a~are, we submitted comments last year to Mr. Morrison concerning la~s and regulations governing the professiocs of Dent~stry, Medicine, Optometry, and Veterinary Medicine.~ Our previous ~omments focused on (1) restrictions on advertising by these professionals, (2) restricti\"',.~ on the business practices of these professionals, 1ncludi~. ~or?orate employment, business relationships bet'Ween professi~ .a1s and non- professionals, commercial locations, and trade name usage, and (3) restrictions on· the formation .and operation of ·prepaie eenta1 and optometric plans. Our previous ·corn.rnents also addressed both statutory and regulatory provisions covering all three of these areas. Finally, our previous co~~ents discussed in some eetail the negative effects that restrictions on noneeceptive aevertising ane commercial practices can have on consumers and cOItoetition. . . We are now commenting on the regulatory changes that have been proposed by the Boards governing these professions. In offering these co~~ents, our goal continues to be to identify and seek the removal of such restrictions that impede competition, increase costs, and harm consumers without providing countervailing benefits. While 'We also direct these comments to the Regulatory Boares, we urge the Reform Board to consider our 1 These co~~ents represent the v1e~s of the Bureaus of Consumer Protection, Economics, ane Competition of the Feceral Trade Co~ission and do not necessarily represent the views of the Commission or any individual Commissioner. The Commission, however, has authorized the submission of these comments. 2 We submitted separate comments on the regulations of the (1) Boarcs of Dentistry and Medicine, dated August 21, 1964, ane (2) Boares of Optometry 'Inc Veter·inary Mec icine, dated September 14, 1984. Copies of both co~~ents are attached.
. ..- . ,.~. Bon. Ralph L. Axselle -2- vie~s ~hen it recommencs to the Governor the position he Ihsuld take vhen he maKes tinal co:=ents to the Regulatory Boards. We ~ill first provide a brief overvie~ of our pr~vious cot:m:ents, t.be Boares' responses thereto, ano provisions in the proposed regulations that ~e believe continue to present potential problems. In an attachment, ve L~en discuas individually and in detail tach Board's proposed regulations. While this format leads to lome repetition because of similar provisions proposed by several Boards, we believe that each Board will find it easier to read L~e comments that apply to it separately. One of the primary issues that our previous comments Acdressed vas restraints on nondeceptive advertising. We listed statutory and- regulatory provisions that appeared to restrict nondeceptive advertising by dentists, physicians, optometrists, and veterinarians, and we urged their removal. In response, ~e Board of Veterinary Medicine proposed the removal of many of the restrictions in this ~rea, the Board of Optometry also proposed simplifying the rules governing advertising, and the Board of Dentistry proposed the e11mination of certain restrictions. The Board of Medicine stated that it would take our comments under advisement. Potential problems remain, hcwever. Neitner the Board of .Optoroe try noe the - Boa rd of Mea i cine has r ecom:nended r emov al .0 f .statutory restrictions that appear to prohibit some .types of nondeceptive advertising~ Moreover, the Boara of Dentistry has proposed new resulations that appear to go beyond prohibiting false and deceptive advertising, ana impose additional unnecessary burdens on nonceceptive advertising. The second major issue that ~e addressee in our previous cp~~en~s involved restrictions on commercial ?ractice, including ~orporate emploi~ent, commercial locations, and trade name usage. Again, the Board of Veterinary Medicine proposed the removal of those restrictions contained in its regulations. In addition, the Board of Optometry proposed to allo~ some trade name usage. Potential problems remain in this area, too, however. Although many 0: the co~~ercial practice restrictions are statutory, none of the Boards recommended any changes to existing statutory prohibitions on corr~ercial practice by optometris~s, dentists, and physicians. (No such restrictions governing veterinarians exist.) Further, the Board of Optometry's proposed 3 We note that we ~re not 1~ a position to o!fer advice on ~hat ~inirnu~ level of quality of care the states should require.
Tnank you for yo~= willingness to consider our comments. Please let us Kno~ if ~e can be of any further assistance. / regulations govtrning trade n~e usage appear to go beyond what is necessary to prevent deception and may unduly b~rden trade n a..'b e usa g e • I I I I II .'" Bon. Ralph L. Axs~lle -3- Sincer~ly, Carol T. Crawfor Director Attachments
I I I1 i·' R£?8R~ OF ~~E BUREAUS OF C::;~S:;~£R PR:":":::::O~';, CO!"'.PE7:':'ION, A:,:) ECONO~ICS OF T~~ fE::;£RA: TRADE CO~~:SSION TO THE CO~MO~WEA~~H OF VIRGI~IA GOVE~~OR'S RE~0LATORY REFO~~ BOARD ON REVIEW- OF REGvLATIONS PROPOSED BY Tt:,;" BOARD OF OPTOMETRY .. - TEE BOhRD OF DENTISTRY Tt.=';" BO;'.RD OF VET£RINARY ME;):CINE, and Te';" BO;'_':\D OF MEDICI~E .. - May 22, 1985 These co~~en~s rep=esen~ ~~e vie~s of the Bureaus 0: Consuner Protection, Economics, and Co~?etition 0: the Federal Trade Co~~ission and do net necessarily re?resent the vie~s of the Co~~ission or any individual Co~~issione=. The Co~~ission, ho~ever, has au:horize~ the su~~ission 0: these comrnen:s.
I ' 1-· I BOARD OF op~O~r~RY O~r ?rev:ous co~~entsl d:scusseo severa: statutory provisions restricting advertising and bus:ness practices t~at we suggested may harm cor.s~~e:s. ~~e B~a:d 0: Optometry did not recorr~end any stat~tory changes but d:d propose changes in its regulations that would simplify the rules governing advertising and ~ould allo~ some use of trade names. However, some of the ?roposed restrictions may go beyond ~hat is necessary to prevent deception. Advertisino Restrictions The Board of O?tome:ry ~as ?roposeo re?~acing the current list of advertising disclosur~ requirements (Regulation III) with Section 3.1G., which would prohi~it false and misleading 2~vertising and require, whenever a price is advertised, that the advertisement state what 900=5 anG services are included in the price. The purpose 0: t~is provision appears to be to prevent false and misleading acvertisins. ~e have some concern, however, ~bout the proposed requirement that any price advertisement state what goods and services are included in the price. This provision could be interpreted to require detailed and lengthy disclosures that are not necessary to prevent deception but oerely impose extra costs on the advertisers, costs that are 1 Letter to Richard Morrison, Department of Health Regulatory Boards from Carol T. Crawfo~d, Director, Bureau of Consumer Protection (September 14, 1984) (hereina:ter referred to as t~e ·Se?tember 1934 co~~ents~). - 2 -
" < ultimately paid for by consumers. For example, an optomet:is~ who ~ished to advertise a pri:e for an eye exam could be required to dis:lose the specific procedures that are included in the exam. Further, the vague lan;uage of the provision could chill legitimate acvertising beca~se potential advertisers might be unsure of its meaning. ~e reco~~end that the Board reconsider the need for this provision. We again ur;e the Boarj to reco~~end that Virginia Code Sections 54-388 (A)(2)(d) and 54-396 (9)(ii), .... hich prohitJit clai~s of superiority and advertising of free services, be repealed, so that only false or deceptive advertising is h " · .. '" pro.l l.e_. A prohib~tion of false advertising should be s u f f i c i e n t top rev e nt dec e p t i 'J e c 1 aim s 0 f sup e r i u~' ; -~' and 0 f f: e e se:vices. As noted in our p:evio~s co~~ents (Septeh~er 1984 cO~uents, at pp. 2-3), th~se code p:ovisions appear to restrict nondeceptive advertising, theretJy lessening co~petition ana harming cons~~ers. T:ace Na::Jes The Boare of Optometry has proposed removing a complete tJan on the ~se of trade names (~es. II-D) and allo.... ing their use - 3 -
ac~ually exa~ine patients, use of a uniform trade name for mUlti?le branc~ offices is made more difficult. ~e unee~stand ane su?por: t~e Board's desire to precl~de L~e use of dece?~:ve tra~e names. E~~ever, we would urge the Board t~ evalua:e w~e:~e~ the~e is a~y evidence that the use of trade names suc~ as ·Optometric Offices of Smith and Jones,· or ·Smith O?tcme:ric Cli~i~~ are de~eptive when used for branch offices. Especially where a number of branch offices are advertised under such a trade name, it see~s doubtful that consumers would assume that they would be examined ~y one of the named doctors. Proposed Sec:.ion '4.1i3.9., .... hich prohibits use of trade names containing the nam~s of deceased or retired optometrists, also raises so~e concerns ~'~out whe:her such trade names are inherently deceptive in every instance. provisio:l .... ould mean that a trade name such as ftS~it~ Optometric Clinic ft .... ould have to be changed upon the deat~ of Dr. Smith, thus preventing the use over time of suc~ trace na~es, althous~ they may be valuable to consumers because they have come to be associated .... ith a certain level of ~uality or price. Although we understand the Boare's concern about possible deception, we would urge the Board to evaluate whether there is any evidence that consumers are actually deceived by su~h usase. La.... firms for years have used trade names of this type, an~ .... e are una~are of any evidence of resulting deception. We recosnlze that the Board may ~ish to ensure icen:ification· and accountability of in=ividual prac:iticne~s - 5 -
req~i:es cor.s?ic~o~s pos:ir.S in t~e reception area of the names proposed regu:ations that appear to accomplish this end without Bo~ever, the Board has already I I I1 prac~icing under a trade name. unduly restrict:n9 nondeceptive advertisin;. o~ all optometrists practicing at a location. Section 4.19.5. Sections 4.1B.7. and 8. res~i:e that the examining optometrist's name appear on the pctie~t's records and on all invoices anc receipts. Proposed Section 4.19.2. prohibits optometrists from practicing under more than one fictitious na~e. It is unclear ~hether this prohibits practicing under a nu~ber of trade names at one time or curing a lifetime. If the fo:~er, this would restrict optometrists from working part-time for more than one group practice using a trade name. If the latter, it could severely restrict the employment op~ions available to optometrists and hinder the ability of large group practices to recrui~ optometrists. We believe that it is preferable for the Board to proceed on a case-by-case basis against optometrists who use trade names in a deceptive manner rather than to issue a bioad ban on practicing under more than one trade name. Proposed Sections 4.lA and 4.13.3. requires all advertisements using trade names to include the name of at least one optometrist associated ~ith the of:ice. W~ile this is some~hat less 0: a burden tha~ requiring such advertisements to include the names of all t~e associated optGmetrists, it would still incre=se the costs of advertisin; ~ithout necessarily p:ov:a:ng i~:or~a::on that would help consuwers because the r.cwe= - 6 -
I I I ; ... optome~ris~ would not necessarily examine the consumer's eyes. ~his requirement would appear unnecessary since adequate professional iden~i:ication will likely result when the consume: c~l:s or visits the o::ice. F;;rther, the Board can respond i: in~ividual complaints arise because it will have a record of a 1 1 ...... tra=e na~es in use, along with the responsible optometrists. (See Section 4.19.1.) Proposed Sec~ion 4.1S.4. prohibits trade names tha~ do not include the words ·optometry· or ·vision· or reasonably recogr.i:atle derivatives thereof. This would appear to preclude the use of trade name~ such as ·Southern Contact Lens Clinic" and other nondeceptive trade ~ames as well. Presumably, the intent of this proposa~ l~ ~o ensure that the trade name conveys the fac~ that the fir~ is an optometric practice. Eowever, it is not clear that this is necessary since most advertisements would probatly convey this fact anyway. For example, this fact would ,liKely be conveyed through use of the word ·optometrists· in t~e t e x -: 0 f -:h e ad. Co~~erc:al Practice Restrictions Lastly, we would urse the Soard of Optometry to reconsider o~r previous co~~ents concernin; stat~tory restrictions on business relationships between optometrists and non-optometrists (Section 54-388 (A)(2)(i) and on employment by or location at c8~~ercial establis~~ents (Sections 54-388 (A)(2)(k) and 54- 3 ~ i . ~) (S e:l ';. e;.',:> e r 1 9 84 co :7'ul' e n t s, at P? 3 - 4 ) - 7 - In our previous
.. . comment-S"--we raised questions about the potential harm .. hicn could result fro~ such restrictions and discussed evidence that ·co~~ercial practice- such as chain firms may benefit consu~e:s by lowering pri~es without decreasing the quality of service. Our comments also noted that several of the st~tutory provisions governing prepGi~ dental plans (Virginia Code Section 38.1-892 et seq.) appear to be unnecessarily restrictive or have anticompeti:ive ef:ects which may outweigh any countervailir.g benefits to the public. In its report, the Board of Optometry neither addressee our concerns nor reco~~ende= any statutory changes. We urge the Boare to reconsider our previous comments. - 8 -
I I ; ., , In our prior co~~en:s3 regarding ~~e Board of Dentistry ~e disc~ssed a nu~~er 0: s:a:~tory a~d res~~~:ory provisions t~at appeared to ?rc~i~:: noncece~:ive adver:isin; or place unnecessary burdens en suc~ advertising. T~e Board has proposed removing some 0: the~e reg~~ations but has proposed several ne~ regulations t~a: also aFpear to go beyond prohibiting false and deceptive advertising. Our previous co~en:s also discussed the potential har~ to consumers that could result from several statutory restrictions on cor.~ercial practices, including a ban on trace n2.:7le usage. ' T~e Board did not recom.:uend changes to any 0: these statutory provisions. Acver:'isina We turn :irst to t~e areas covered by e~= previous co~~en:'s regarding sever~l advertising provisions (A~;~5t 1984 co~~ents, at ?p. 2-4). Our previous co~ents stated t~a: Virginia Code ~ction 54-187(7), ~~i:~ bans advertising cla::7ls of superiority, appears to prohi~i:' at least some noncecept:ve advertising. Our co~~ents also stated that portions of Section 7.A.4. 0: the Board's regulation, prohibiting advertis:r.g 0: statistical da:.a, in:or~ation on ~ast p:r:ormance, re?resenta:io~s 0: quality and 3 Letter to Ric~ard Morrison, DeDart:7lent 0: Eea1th Rec~latorv Boards from Carol T. Cra~ford, Director, B~recu of Consumer ~ Protection (Augus: 21, 1984) (hereinaf:er sc~e:imes re:erred to as::; e .. Aug u st. 1 9 54 co :7"w'7. e n t s .. ) . - 9 -
shovrnanship or pu~!ery, appear to prohibit nondeceptive governing advertisin~ 0: s?ecial~ies, could be interprete~ to I I I ! adve:~:sing. We a:so expressed concern tha~ Section 7.A.2.d., prohi~i: nondeceF~ive acvertising. ~he Board suppor~s the eli~ina~ion 0: all these restrictions. proposed changes will bene!i: consumers. We believe ~hat these However, some of the remaining provisions as well as some of the new proposed revisions appear to go beyond wha~ is necessary to prevent cece?~ion. Previously we stated that Section 7.A.2.f., which requires disclosure of the original price whenever a discount is advertised, would likely prevent' the dissemination of useful and nondece?:ive price inforrr.a:ion. For example, this provision would prohi~it aes s~atin9 -10% off for senior citizens" or -SlO off for all new patients.- Further, since it could be very cos~ly to state in an acvertisement the regular price of each of the hundrecs of services a dentis~ provides, this rule will "likely decrease the anount of discount price adver~ising that The Beare has now reco~~ended that the requirements of J Section 7.4.2.£. be incorpor:ted into proposed Section 4.6C., and we ur;e the Board to reconsider our previous co~~ents on this point and consider eliminating this requirement. ?roposec Section 4.63.2. states that an advertisement of a fee a dental service must state the period of time fc~ .hict the fee shall be in effect ~nless the fee is in effect for at least 90 days. In evalua~ing whe~her an ad without such a - 10 -
I ~ ! I disclosure is misleacing it is important to consider normal consumer expectations about t~e ~!!ective dates of advertised prices. ~e sU9;es~ that the Boar: evaluate ~het~er consumers expect advertised prices to be e!~ective for at least 90 days, t~e ad uses ter~s such as ·special offer,· or especially if / -introductory offer.- Any disclosure requirement ades to the cost of advertising anc, ye believe, should be imposed only ~here necessa~y to prevent deception. Proposed Section 4.6E. li~its fee advertising to certain listed and defined routine dental services. This provision ~oul= a~?aren:ly prohi~i: the advertising of fee information for non- routine services, for example, ne~ or innovative tec~niques that are not yet widely used by practitioners. It , also may be interpreted to prohibit any advertisements ~hat co not state specific prices but rather use ter~s such as ~discoun: pric~s" or ·lo~ cost" to attract consumer attention and cowrnu~i:a~e a message ef:ec~ivelv. Such advertising is not The proposed rule also appears to rec~ire adyertisers to use terminology that may be confusing and not J easily understood by consumers. For example, it see~s to re~uire advertisers to use only the specific ter~inology listed in the regulations, such as ·prophylaxis" to describe cleaning of teeth. It also see~s to require that -examination,· ·diasnosis,· and ·t=ea~~ent ?lar.~i~g" be advertised separately, although diagnosis and treat~e~t p~2~~in; are o:ten considered to be par: of a rou:ine dental exa~ir.ation and consu~ers ffiay not understanc the cis:ir.c:io~ bet~een these ter~s. - 11 - Such re=~i:emer.ts lim:: the
'- . ability of advertisers to convey their message as effectively as possible an= thus may have a chilling effect upon valuable advertising. T~e requirement also appears to impose additional b~rde;.s on advertisers that are not imposed on other dentists. for exa~?le, if a de~tist advertises -treatment planning,· he or she m~st give the patie~t a ~ritten itemized treatment recorr~endation and a ~ritten itemized fee statement. Those requirements are not imposed en nonadvertisin; dentists. In our vie~, proposed Section 4.6E. is not necessary to prevent deceptive advertisi~;. While ~e recognize that problems ~ay occur, ~e sussest that the Board respond to these proble~s on a case-by-case basis, see~ing to remove advertising that is actually deceptive, rather than through broad rules that ~ou~_ likely preclude the dissemination of valuable nondeceptive i~.for;i1a:ion. Thus, ~e urge t~e Board to reccnsider the necessity of prcposed Section 4.6~. !n our previous comments ~e also discussed the statutory prohibition on trade name usage by dentists (Virginia Code Section 5~-184) and pointed out that trade na~es can be essential to the establishment of large group practices and chain operations that can offe": lower prices (August 1984 com;nents, at 5-7). While the Board of Dentistry - 12 -
~e unders~and that it no~ reco~~encs no changes to the current reconsider our previo~s co~~ents. series of regulations that vould permit some trace name usage,~ I Iii la~ banning trade name usage. We ~ould urge the Board to I Co~~ercial ?rac~:ce Our previous co~~ents also addressed several statutory restrictions on co~~ercial practice, including a ban on employment, partnership, and other business relationships bet~ee;, dentists and other persons (Virginia Code Section 54-146, Secticn 54-183), and a ban on, leasing space from co~~ercial establishments (Virginia Coce Section 54-247.1). w~ raised the question ~hether such restrictions may har~ consu~er~' ;~d presented evidence that the presence of co~ercial practitioners suc~ as chain fir~s may lo~er prices ~ithout decreasing the quality of care (August 190~ co~~ents, at pp. 4-7). Our co~~ents also noted t~at several of the statutory provisions governins prepaid dental plans (Virginia Coce Section 38.1-892 et seq.) ~ppear to be unnecessarily restrictive or have anticoffipetitive effects ~hich ~ay outweigh any countervailing benefits to the public. The Board of Dentistry did not address these concerns i~ 4 Those revisions, while allo~ing certain for~s of trade na~e usage, still appeared to restrict unnecessarily the use of trade names. See our co~~ents relating to several similar pro~isior.s proposed by t~e Board of Optometry on pp. 3-7, suora. The B02:= also no~ed th2~ a statutory change may ~e necessary to 2:10- trace name usage. Presumably, this reco~~encation also has bee~ ~i~hc=a~~. - 13 -
~. . i~s Re?cr~ and cid not p~c?cse changes to these statutory p:ovis:o~s. ~e wou:d u:;e t~e Boar~ to reconsider our previo~s co~en~s. - 14 -
-.. Our previous corr~e~:s5 resarjing the Board of Ve~erinary ~ecicine disc~sse~ t~e potentially ha:~!ul e::ects of Boar: rules prohi~iting veterinarians frc~ utilizing the services of solicitors (Rule 15(!)), making claims of superiority (Rule 15(J)), entering into business relationships with non- veterinarians (Rule 15(3)), and leasing space from corr~ercial establishments (Rule 15(C)). We support the Board's decision to propose the elimination of all of these rules. ~e believe that t~e~e changes may well benefit consumers by increasing competition and lowering ~osts~ithout decreasing quality. Co~~ercial ?rac:ice The Board of Veterinary Medicine has prc~osec a new regulation (Section 2.3.3.) that would make it unprofessional concuct for a veterinarian to practice veterinary medicine ~& a non-veterinarian has the right to control the professional juds~ent of the veterinarian. purpose of the current ban on According co IT'w":l e r cia 1 to the Boar:::, practice is to ensure that the professional judgment of a veterinarian is not compro~isec by so~eone who is not a veterinarian. !>-.s state:, the 5 purpose 0: the proposed chan~es is to deal directly with this Letter to Richar::: Morrisoi., De?art~ent of Seal:h Regulatory 30ards from Carol T. Cra~forc, Director of Ccnsu~er ?rotect:on (Se?te~~er 14-, 1964) (hereina~:er sometimes :e!erred to as :~e "Se?:.e:7',::'e: 1984 CO:7U7ients·). ' - 15 -
~ ". .. " . problem yi~~out intruding upon business rela~ionships ·so long as veterinary medicine is practiced safely and yell.- (Bd. of Veterinary Medicine, Regulatory Reviey Report, p. 9.) While ye recognize that the Board may consider proposed Section 2.3.3. necessary to protect consumers, ye believe that a slightly modified version of this provision ~ay achieve the Boar~'s gea~s witho:;: ~nnecessarily interfering with business relationships between veterinarians and non-veterinarians. As currently drafted, Section 2.3.B. might be interpreted to prevent veterinarians fro~ working fer lay employers since all employers exercise control over the work-related activities of their employees. The Boare may· be a!::>le to accom?lish its express p:;rpc.s of ?rohibiting only those controls that corn?romise the professional judgment of veterinarians by recommending a narrower rule that wo~ld restrict veterinarians from working for non- veterinarians where the nen-veterinarian seeks to co~?romise the veterinarian's professional judg~ent in ways that might lower the q~ality 0: care rendered by the veterinarian. C~~onents of co~~ercial practice often argue that lay em?loyers will co~?ro~ise the quality of care in an effort to increase ?rcfits. However, it is also possi!::>le that they will atte~?: to ensure high q:;ality in an e:for~ to esta!::>lish a good reputation, the:e!::>y increasing Fatronage ana profits in t~e Ions r:;;). o~: st~cy resar::~; t~e s~ality of cosmetic contact lens - 16 -
, "
!i~~inss by o?~omet:ists,6 cis=ussed more fully in our previous
co~~ents (Se?te~ber 1984 corr~ents, at p. 6), tends to support t~e
l~~~e: ar9ume~~ since it sho~s that the quality of co~~ercial
op~oroetrists' ccs~e~i= con~a~t lens fit~inss are at least as good
as those of nonco~~e:cial optoroe~rists and ophthalmologists.
We applaud the Board's positive response to our previous
concerns. we urge the Board to review these additional cOm~ents
and consider whether a narro~er rule might not better accomplish
its stated goal 0: not intruding on business relationships so
long as veterir.~ry medicine is practiced safely and ~ell.
6 Bureaus of Consu~~r Protection and Economics, Federal Trade
Co~~ission, A COffip2rative Analysis 0: Cosmetic CO~t2ct Lens
F~::ing ~y O?h.:~a:~olog~sts, C?~ome:rists, and O?~i:ians ('1963)
- 17 -
In our previous co~~en~s7 ~e discussed t~ree statutory provisions t~a~ may ha:~ cons~mers. ~e noteo that Virginia Code Section 54-317(3), ~hi:~ bans adver~ising claims of superiority by physicians, ~ou1c appear to prohi~it at least some nonceceptive advertising (August 1984 comments, at p. 2). ~e also discussed in detail t~o provisions of the Virginia Coce, Section 54-278.1, prohi~iting physicians from leasing from commercial establish~ents, and Section 54-317, ~hic~ may be interpreted to prohibit trade name usage (Ausust 1984 corr~ents, at p? 4-7). Both of ,these provisions may har~ consumers by hindering competition from hi9~-volu~e, lo~er-priced practices. In Board noted that our reco~~en=ations relating to advertising ~ill be taken under advisement. We appreciate this consideration of our comments. Eo~ever, the 30ard did not 7 :ecc~~end any stat~tory revisions an~ ~e ~cul= urge the 30a:d to reconsider cur previous comments regarding these provisions. Letter to Richard Morr son, De?art~ent of Eealth Regulat~ry coares from Carol T. C:a~ orc, Direc~or, 3ureau of Consumer Protection (August 21, 1954) (hereina::er so~etimes referred :0 2S the "hugust 1964 corr~ents.") 8 Board 0: Medicine, Su~~ary of Regula:ions, p. 6. - 18 -
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