in this day and age the standards of vision care in the Nation's Capital should. be, if not the highest, then at least the equal of a majority of the States. On the contrary, the city of Washington indulges in some of the worst, if not the worst, examples of unethical advertising of optometric services and ophthalmic materials to be found in the Nation.

The Senate Subcommittee on Frauds and Misrepresentations Affecting the Elderly, in this report, which was filed January 31, 1965, made the following statements:

"Testimony taken by this subcommittee reveals that the last congressional action taken in this field (eye care) within the District dates back to 1924. Testimony taken by this subcommittee suggests that new merchandising methods have occurred since that action and it is recommended that the Senate District of Columbia Committee examine the adequacy of present District laws on

"(a) Widespread, fixed-price advertising for regular glasses and contact lenses;

"(b) Sale of over-the-counter, nonprescription glasses;

"(c) Possible need for greater authority to the District Commissioners for regulation of 'the corporate practice of optometry'."

The provisions of the bill under consideration are intended to provide the protection which the Senate subcommittee felt was sorely needed. Exhibit M is an analysis of the bill, section by section.

I would like to make special reference to various aspects of the bill with particular emphasis on the manner in which other States have handled these matters in their respective statutes.

The first section of the bill gives the title.

Section 2 sets forth the declaration that optometry is a profession.

There is no uniform model law which defines the practice of the profession of optometry. The definition in the bill combines provisions from the laws of the various States and sets them forth without repetition or redundancy. Attached hereto is exhibit A which sets forth the laws of the States which directly declare optometry to be a profession, of which Arkansas, Colorado, Georgia, Kentucky, and Nevada declare it to be a "learned profession." Also attached are copies of the laws referred to.

Section 3 of the proposed bill amends present section 1 of the law, which only contains one definition; to wit, the practice of optometry. The section in the bill defines other terms.

Supporting this statement is exhibit B attached hereto, which contains the definition of optometry in all 50 States and in Puerto Rico.

Section 4 of the bill amends present section 11 (2-511), relating to educational requirements. The marked advance in educational requirements is irrefutable evidence of the tremendous advances made in the profession of optometry during the last 42 years.

Section 5 of the bill amends section 18 of the law (2-518), relating to reciprocity licenses. The amendment clarifies the procedure and requirements.

Section 6 of the bill amends a portion of section 6 (2-606) of the law, relating to annual renewal of licenses.

Section 7 completely rewrites section 16 (2-516) of the law, and these sections relate to causes for disciplinary proceedings against the licensed optometrist. (See exhibit C.)

The first possible controversial subsection of this group is No. 8 which bars advertising of optometric services or any part thereof. This subsection is not, as stringent as it would seem since by section 10(a) the Commissioners are specificially granted rulemaking powers to adopt rules and regulations as to the number, size, location, and illumination of signs and advertising offering services of an optometrist or the sale of ophthalmic materials.

The optometrist is to be limited to the carrying or publishing of a modest professional card and the display of a modest window or street sign. This is strictly in line with the prohibitions against advertising in the dental law of the District (ch. 3, title II) and the podiatry law (ch. 7, title II). The practitioners of these professions are likewise prohibited from advertising in any medium other than the display of a modest sign. A regulation limiting a licensee to a single advertisement, not to exceed 24 inches in width and 1 inch in height in a copy of any newspaper at one time, was declared reasonable in Johnston v. Board of Dental Examiners (134 Fed. 2d 9, 77 U.S. App. D.C. 119), affirming the lower court and certiorari was denied in 319 U.S. 758.

The lawyer may not advertise; nor may the physician. The professional practitioner should derive his patronage by reason of his skill, ability, and the

reputation which he creates, rather than to seek to attract patronage by advertising.

Subsection (9) requires practice under the name on the license. If an optometrist changes his name or if a female optometrist becomes married, in either case a request can be made for a new license in the new name and this done administratively.

Subsection 11 prohibits the display of ophthalmic material so as to make it visible from the street or public corridor of a building. This is not new. (See Exhibit D.) Similar prohibitions appear in the laws of Arkansas, Delaware, Idaho, Illinois, Kentucky, New Hampshire, Oklahoma, South Dakota, and Tennessee. In Florida a similar prohibition was contained in a rule promulgated by the State board of examiners under its power to make rules and regulations. This rule was contested and was sustained in the case of Fisher v. Schumacher (72 S. 2d 804 (Florida)) and in New Jersey in the case of Abelson's, Inc. v. New Jersey State Board of Examiners (5 N.J. 412).

Skipping to subsection 17, because the intervening subsections are hardly controversial, this section prohibits an optometrist from practicing in commercial surroundings. One does not expect to find a dentist practicing in the middle of a large department store. To do this would cast reflection not only upon the dentist, but upon the profession itself. Nor could the public maintain its respect if a physician were located in a large variety store, plying his profession and handing out pills and powders.

This type of prohibition is not new. Connecticut and New Jersey have statutes barring it. In Massachusetts the State board pursuant to its granted powers made a one-sentence regulation prohibiting practice in commercial surroundings. The rule was challenged, but was upheld by the highest court of Massachusetts in Silverman v. Board of Registration in Optometry (181 Northeastern 2d 540). Subsection 18 will probably be the most controversial section. It seeks to prohibit what is known as corporate or lay practice of the profession. An optometrist should either practice for himself or in partnership with another optometrist. He should not be the employee of a lay person or corporation. Corporate or lay practice is one of the most baneful evils in those States where it is not yet prohibited. Volumes could be written on how this results in "quickie" examinations; the foisting of glasses upon patients who do not require them, changes in the amounts charged for fees of services or material.

The most indisputable basis for the existence of this prohibition lies in the doctrine of "conflict of interest." A professional man cannot, and should not, have two masters. His sole and only responsibility is to his patient, and this should not be overshadowed or even shaded by a conflicting responsibility to his employer and his necessity for holding a job.

Section 8 of the bill relates to "persons" who, under the definitions set forth in section 3 (subsec. 4), means, "Any natural person; corporation, association, company, firm, partnership, or society.' Several of the prohibitions applying to licensed optometrists are also included in this section. However, advertising of ophthalmic material is not completely barred. The unlicensed person may advertise it. However, since this material is inextricably tied in with the health and welfare of the public, to prevent the evils of bait advertising, subsection 5 bars advertising the cost or price of ophthalmic articles or devices.

Here again, we refer to the provisions of section 10(a), which grants the Commissioners the right to make rules and regulations regarding the advertising of ophthalmic material.

Subsection 8 is the converse of section 7 (subsec. 18). In the latter, the optometrist is prohibited from working for or being employed by a corporate or lay employer. Subsection 8 prevents a lay person or corporation from employing an optometrist.

There is annexed hereto exhibit E which sets forth the States which have specific legislation against corporate or lay practice.

In addition, actions have been brought either in injunction proceedings or quo warranto, resulting in court determinations that the statute, as it stood, prevented corporate practice. Among others, and simply by way of example, we cite Neill v. Gimbel (Pennsylvania) (199 Atlantic 178), Ezell v. Ritholz (181 South Carolina 39).

There is also appended exhibit F setting forth the States in which the practice of optometry in commercial surroundings is prohibited.

There are also appended exhibit G listing the States and statutory provisions against "free" examinations and other means of solicitation of patronage; exhibit H which lists the States and the sections prohibiting the practice of optometry

in a name other than that of the licensed optometrist; and exhibit I listing the States and section relating to the control of advertising.

These provisions were occasionally challenged in the courts. The courts in all of the decisions have found in favor of the sections regulating advertising. Among the cases, in addition to the Abelson's case in New Jersey mentioned above, are Bedno v. Fast (Wisconsin Board of Examiners in Optometry) (95 Northwest 2d 396); State v. Rones (Louisian) (67 Southern 2d 99); and Norwood v. Parenteau (South Dakota) (63 Northwest 2d 807).

Exhibit J lists the States forbidding the use of "steerers," "cappers," and solicitors.

Section 9 of the bill amends present section 20 (2-520) of the present law. It sets forth a series of exemptions. It provides that a physician or surgeon duly licensed under the laws of the District of Columbia shall not be required to have a license under the optometry law.

Subsection (C) exempts the optician, permitting him to fill the written prescription of a physician or an optometrist as he does now, but it specifically prohibits him from fitting contact lenses.

Section 12 grants the Commissioners the right to invoke an injunction to restrain a violaton of the law. Appended is exhibit K setting forth similar rights in the various States.

Section 14 provides that no person with visual problems may be deprived of his freedom of choice of practitioner. This right of freedom of choice should be especially enforced in the Capital of the Nation. Appended is exhibit L which sets forth the statutes in a growing number of States assuring the citizens thereof of this inalienable right.

Mr. Chairman, if you or any of the members of your committee have questions of a legal nature, I shall be most happy to endeavor to answer them.

In conclusion, I want to express my personal appreciation of the privilege accorded me and to assure you of my wholehearted desire to cooperate with the members of the committee and its staff.

Mr. HARSHA. Mr. Kohn, in your prepared statement you point out that the regulation of licensing was held to be reasonable. Would this proposed bill prevent any advertising in the newspapers?

Mr. KOHN. No, sir. This proposed law prohibits any type of advertising which the District Commissioners do not wish to have. If the District Commissioners wish to give in this particular case that I mentioned that was the case of a dentist, and the rule was that they could have but one advertisment, and the courts held that that rule was reasonable, and whatever the Commissioners do, and we think that they will understand the situation, we will have to-and will want to abide by it

Mr. HORTON. Could I ask a question, also?

Mr. KонN. Yes.

Mr. HORTON. Could, for example, advertising be permitted that would indicate that certain lense were available? Is there some way that this type of advertising could be permitted or would be permitted? Mr. KOHN. Yes, sir; if the District Commissioners so decreed by regulation.

Mr. HORTON. But that would not be permissible under the bill? Mr. KOHN. No. The policy of the bill states that there is to be no advertising at all except as is permitted in section 10 (a) and (b) by the Commissioners.

Mr. HORTON. In New York State they advertise with regard to lenses, frames, and the like.

Mr. KонN. They are doing that right now because the law-may I respectfully explain without taking too much time.

In New York State the board of regents has by the constitution been granted certain legislative powers, and they can make rules similar to the legislature relating to educational matters, and they made a rule barring all advertising, and that rule now is under re

straining order pending a trial and appeal to the court of appeals of our State, and if it is sustained-incidentally, the lower court has already sustained it, but we will have to go on further-if it is sustained, that would be much more stringent than this, because it bars all advertising in New York State.

Mr. HORTON. Is there reason to prohibit the advertising with regard to frames?

Mr. KOHN. Yes, sir; we believe so. That has, by the way, been ruled constitutional.

Mr. HORTON. I might indicate to you I represent Rochester, N.Y., and Bausch & Lomb is located there.

Mr. KOHN. I know them very well. I am sure that it makes no difference to Bausch & Lomb whether the frame is advertised to the public or not. There is a certain quantity and number of frames. that have to be used. People have poor vision and they have to have lenses and they have to have frames around these lenses.

Mr. HORTON. Now suppose someone wants to advertise sunglasses, for example, "ray ban" and that sort of thing. Is that permissible under this legislation?

Mr. KoHN. Under this legislation, no, not unless the Commissioners omit it.

Mr. HORTON. Would you recommend that there be written in here a prohibition against advertising where prescription lenses are required, and permitting advertisements with regard to nonprescription? For example, my wife doesn't wear prescription glasses, but she can certainly go in a store and buy a pair of ray bans or sunglasses. Mr. KOHN. Fine, if they bought ray ban glasses made by Bausch & Lomb

Mr. HORTON. Or anyone else.

Mr. KOHN. Or anyone else of similar quality, it would be perfectly all right. But the type of sun glass that is sold generally in garages and filling stations and the like

Mr. HORTON. Or drugstores.

Mr. KoHN. Or drugstores, and at low prices have usually what they call streye or streaks and imperfections. They are not polished and they are not ground. Many of them are simply pressed out of glass, and they are not good. They certainly shouldn't be worn by anybody who would be driving an automobile.

Mr. HORTON. Well, now, this bill would not prohibit them selling those glasses.

Mr. KOHN. No, sir; but it would prohibit the advertising of them and luring people to buy them at 98 cents or 49 cents.

Mr. HORTON. So that Peoples Drug Stores and the other drug companies would not be able to advertise if they sold any type of glasses at all.

Mr. KoHN. That is right, sir, but they would be able to have them and sell them.

Mr. GRIDER. Mr. Chairman, I would like to ask a question.

Mr. KoHN. Incidentally, on that it has been called to my attention with respect to ophthalmic material, they are permitted to have modest advertisements under the bill.

Mr. HORTON. You mean now?

Mr. KoHN. Under this bill.

Mr. HORTON. You mean under the present bill.

Mr. KOHN. No, under this proposed bill.
Mr. HORTON. Under the proposed bill?

Mr. KонN. Yes, we have modest advertisements. In other words, we have distinguished between the professional services of the optometrist, which we feel should not be advertised at all, any more than professional services of a lawyer or of a physician should be advertised. Mr. HORTON. As a lawyer.

Mr. KOHN. Or anybody else.

Mr. HORTON. Or a doctor.

Mr. KоHN. Yes, sir; or an M.D., or a dentist.

Mr. HORTON. Yes.

Mr. KонN. However, those who sell ophthalmic material may advertise modestly according to what the Commissioners ultimately decide to be the rules.

Mr. HORTON. An optician, for example.

Mr. KOHN. An optician, drugstores, anybody else.

Mr. WHITENER. Mr. Kohn, we lawyers can't advertise, but firms selling legal forms can.

Mr. KOHN. Folks selling legal forms?

Mr. WHITENER. Yes; Tuttle Law Print Program Co. has a program of advertising; as does Blumberg Co. in New York. The bar association magazines and all others carry advertisements of legal forms. Mr. KоHN. But they sell them to us.

Mr. WHITENER. And materials that are used by the legal profession. Mr. KоHN. Yes; to us.

Mr. WHITENER. They will sell them to anybody. Tuttle Law Print Co. has a package of bankruptcy forms today. They don't askMr. KOHN. They probably would sell them to you; yes, sir.

Mr. WHITENER. They will sell you a will form and a release form or a deed form.

Mr. KонN. Yes, sir.

Mr. WHITENER. And we have justices of the peace, lawyers, and everybody else down my way selling legal forms. Yet we don't advertise as lawyers, but they do.

Mr. KOнN. Do they advertise them to the public?

Mr. WHITENER. Yes, in newspapers. Edwards & Broughton in North Carolina is one of the oldest companies we have. You can write down there today, and buy as many copies of warrant_forms, will forms, and deed forms as you are willing to pay for. I order forms quite often from Blumberg in New York.

Mr. KонN. Frankly, sir, I have never seen the advertisement of Blumberg or any of these other companies in any other in the law magazines that I get.

Mr. WHITENER. You can get direct mail advertisements from them. Mr. KOHN. You mean to lawyers?

Mr. WHITENER. I am a lawyer, so I am the one that got them, but I am sure that if one of these doctors would write up there today and tell them they would like to have a catalog, they would send it to them.

Mr. KOHN. Probably true.

Mr. GRIDER. Mr. Kohn, as I read the definitions under section 3, the practice of optometry includes the furnishing of lens, et cetera. Now, isn't it the usual practice for the optometrist to write a prescription, and does not the patient take the prescription to a man who grinds lenses? You call him an optician?