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Mr. HARSHA. Would you yield?

Mr. WHITENER. Yes.

Mr. HARSHA. Concerning this first issue that the gentleman from North Carolina raised about qualifying as an expert, under this act we have already established that you have a grandfather clause, so that anybody now that has an optometric license or is an optome trist could present that license and be a qualified expert just as qualified under this act as Dr. Morgan.

Mr. KонN. That might not be too good.

Mr. WHITENER. Now, Mr. Kohn, on page 9 of your section 7, subsection 19, there is the use of this language: "Any other unprofessional conduct."

Mr. KOHN. Yes, sir.

Mr. WHITENER. That is sort of indefinite language for a lawyer to cope with; isn't it?.

Mr. KоHN. "Or any other unprofessional conduct" would not be a cause for disciplinary proceedings, unless the other unprofessional conduct was described and prohibited in a rule or regulation. We merely, by that, indicate that the foregoing today may be and we consider are acts of unprofessional conduct.

Mr. WHITENER. Yes, but this applies, this section would authorize the withholding or the refusal to reissue a license of an optometrist to practice his profession.

Mr. KоHN. Yes, sir.

Mr. WHITENER. Now for what reason "any other unprofessional conduct." Now if you want to protect your own profession, the profession of these gentlemen, do you think you ought to pitch a professional man into that pot of water and have him wondering just what could happen to his license? Don't you think there ought to be some restriction, any unprofessional conduct which may be defined in rules. and regulations issued by the Commissioners or something of this kind? Mr. KоHN. That might be, or as the case in this instance holds, where the general term of unprofessional conduct has been attached, it has been supported and upheld because it is usually not usuallyinvariably a part of a section that defines unprofessional acts, and therefore a guideline has been laid down. There is a framework. It isn't to be plucked out of the air. And the courts have held that this means an unprofessional conduct according to the consensus of the profession. That isn't only in optometry but also in medicine and in dentistry.

Mr. WHITENER. But the Commissioners under this bill can walk into Dr. McCrary's office any day they wanted to and say, "We are revoking your license," and he would say, "For what?" and they would say, "Well, for unprofessional conduct." He says, "Well, I want to have a hearing down here on this," and so he goes to a lawyer and the lawyer says, "Well, what did they charge you with, Doctor?" He says, "Well, they just said unprofessional conduct." You give the Commissioners authority to revoke that license, and here is a man that the only way he would ever know what he was charged with, I presume, would be to have a bill of particulars procedure, a discovery procedure.

He could then seek out some bureaucrat who could tell him what he is alleged to have done wrong. Unprofessional conduct is not the same in the eyes of everybody. There are some real borderline propositions.

In our profession in my State we have a committee on ethics and unauthorized practice to which a lawyer can submit an inquiry and get an answer. You would be surprised how many are issued every month, where men of good character who want to do the right thing have some misgivings about whether it is proper or not.

I think that you ought, for the benefit of the profession, to rethink a little on using that kind of language.

Mr. KoнN. I personally could see no objection to "any other unprofessional conduct, as ruled or regulated by the Commissioners." That is the intent of it. In other words, to leave it open. Mr. WHITENER. May to go answer the bell. the bill.

Mr. KOHN. Yes, sir.

I ask one other question and then we will have
You use a term, "ophthalmic material," in

Mr. WHITENER. What does that embrace?

Mr. KонN. What does that refer to?

Mr. WHITENER. What does it embrace? Mr. KOHN. It refers to anything that relates to eyeglasses or lenses that are worn by a patient as in contradistinction to optical material. Now optical material can be a microscope, telescope, magnifying glasses, things that aren't worn. But they are still optical materials. Mr. WHITENER. I have had this happen on a Saturday afternoon. The little pin falls out of my glasses.

Mr. KоHN. Yes.

Mr. WHITENER. And next door to me is a jewelry store, and I went in there to a watchmaker to put the little old pin in my temple here to hold my glasses together over the weekend.

Under your proposal here that watchmaker could be fined not more than $500, if he did it twice he might be fined $1,000.

Mr. KOHN. I thought that I made it clear that anything of that nature, of this mechanical nature of repairing a screw or anything of that nature, is not covered by any prohibition in this act.

Mr. WHITENER. This is what Dr. McCrary said. I don't want to get personal here, but suppose your teenage boy hits you in the face with a basketball. You are out shooting baskets in the backyard late Saturday evening and it gets your frames all bent up. If that happened here and this was the law, and you went to the jewelry store or got the watchmaker who lived next door to you to straighten out your frames, would that be a violation of this law?

Mr. Sisk, the author, says it would be.

Dr. MCCRARY. He says it would be?

Mr. WHITENER. That is what he said, and if the watchmaker were guilty, then I would be guilty equally because I was aiding and abetting and participating in the criminal offense.

Mr. MORGAN. Mr. Chairman, May I make a comment?

Mr. WHITENER. He and I would walk down to the District Building and shuck out $500 apiece.

Dr. MCCRARY. He would be a very talented watchmaker to take care of that problem.

Mr. WHITENER. I don't know about that. I find this a lot of times and bend it around.

Dr. MCCRARY. It is obvious you are very talented.

Mr. WHITENER. It is not that I am very talented, but I know this. I can see through them when they are fixed.

We are pressed now, as you know, to answer the bell. If you gentlemen would be available, Mr. Sisk will have his day in court.

Mr. Reporter, we offer for the record a statement by the National Newspaper Association.

(The statement of the National Newspaper Association follows:)

STATEMENT OF THE NATIONAL NEWSPAPER ASSOCIATION

Insofar as H. R. 12937 and similar bills which have been referred to the subcommittee seek to limit the practice of optometry in the District of Columbia to trained and qualified persons, the National Newspaper Association supports enthusiastically this legislation. Without question the practice of optometry does "affect the public health, welfare, and safety, thus requiring regulation and control in the public interest."

However, insofar as H.R. 12937 and similar bills would render illegal, and the basis for revocation of a license to practice optometry, the truthful advertising of optometric services and those products and merchandise dispensed in the practice of optometry, the association opposes such provisions for the following

reasons:

1. The District of Columbia Code already prohibits any form of fraudulent advertising and makes ample provision for enforcement of this prohibition (sec 22-1411, fraudulent advertising 1 and sec. 22-1413, penalty).

2. Truthful advertising is neither criminal nor immoral. The Congress should not make truthful advertising a criminal act, punishable by the municipality, simply to enforce an attitude within a profession as to what some members of that profession regard as unprofessional.

3. It is the advertising of services, including the advertising of prices and terms of payment, which provides the only effective means of maintaining price competition in the practice of optometry. It is in the public interest that individuals needing optometric service be able to afford them, and therefore in the public interest to maintain price competition in this field of endeavor. Where governments have acceded to the desires of a professional group to make advertising illegal, the element of competition has withered and the prices of these professional services has risen. (See the record of the Kefauver committee in its investigation of prescription prices in States where price advertising had been eliminated by statute.)

In short, it should be the province and the obligation of the municipality to insure that optometry is practiced only by persons properly trained and licensed. It should not be the responsibility of government to insure that those practicing optometry conform to certain arbitrary standards of dignity and so-called ethical restraint. On the contrary, it should be the function of government to insure that the practice of optometry within the jurisdiction be conducted in as free and competitive an atmosphere as possible, in the interests of affording the public these necessary services at a reasonable cost. This can best be accomplished by protecting the right of the individual practitioner to advertise if he so chooses. Consequently, the National Newspaper Association respectfully petitions this subcommittee to delete from the District of Columbia Optometry Act all those provisions which would prohibit or restrict truthful advertising of optometric services and products. Specifically these are, in section 7(a) (8), (10), (11), (14), (16), (17), (18); and in section 8(a) (5), (6); and portions of the language of section 10(a).

In addition the association would petition the subcommittee to eliminate from the act the broad language of section 7(a) (19), which would place the Commis

1 § 22-1411 Fraudulent Advertising.-"It shall be unlawful in the District of Columbia for any person firm, association, corporation or advertising agency, either directly or indirectly, to display or exhibit to the public in any manner whatever, whether by handbill, placard, poster, picture, film, or otherwise; or to insert or cause to be inserted in any newspaper, magazine, or other publication printed in the District of Columbia; or to issue, exhibit, or in any way distribute or disseminate to the public; or to deliver, exhibit, mail, or send to any person, firm, association or corporation any false, untrue or misleading statement, representation, or advertisement with the intent to sell, barter, or exchange any goods, wares, or merchandise or anything of value or to deceive, mislead, or induce any person, firm, association or corporation to purchase, discount, or in any way invest in or accept as collateral security any bonds, bill, share of stock, note, warehouse receipt, or any security; or with the purpose to deceive, mislead, or induce any person, firm, association, or corporation to purchase, make any loan upon or invest in any property of any kind; or use any of the aforesaid methods with the intent or purpose to deceive, mislead, or induce any other person, firm, or corporation for a valuable consideration to employ the services of any person, firm, association or corporation so advertising such services."

§ 22-1413 provides for a fine of up to $500, or imprisonment up to 60 days, or both, for violation of the fraudulent advertising statutes.

sioners in the position of having to determine what constitutes "any other unprofessional conduct."

The association appreciates the opportunity to submit this statement to the subcommittee, and the attention the members have given it.

THEODORE A. SERRILL.

Mr. WHITENER. We will recess until tomorrow morning at 10 o'clock.

(Whereupon the committee recessed at 12:25 p.m. until tomorrow at 10 a.m.)

OPTOMETRY

TUESDAY, MARCH 22, 1966

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE No. 4 OF THE

COMMITTEE ON THE DISTRICT OF COLUMBIA,

Washington, D.C. The subcommittee met, pursuant to notice, at 10:15 a.m., in room 1310, Longworth House Office Building, Hon. John Dowdy, presiding. Present: Representatives Dowdy, Whitener, Sisk, Smith, Grider, Harsha, Horton, Roudebush, and Broyhill.

Also present: James T. Clark, clerk; Hayden S. Garber, counsel; Clayton Gasque, staff director; Donald Tubridy, minority clerk; and Leonard O. Hilder, investigator.

Mr. DOWDY. The committee will come to order.

We shall resume hearings which we began yesterday on the bills to regulate the practice of optometry in the District of Columbia. The first witness we have on the witness list this morning is the Hon. Robert M. McNevin, attorney, Indiana Optometric Association. If you will have a seat here, Mr. McNevin, we shall be glad to have your statement.

STATEMENT OF ROBERT M. McNEVIN, ESQ, attorney FOR THE INDIANA OPTOMETRIC ASSOCIATION

Mr. McNEVIN. All right, sir. May it please the chairman and members of the committee, my mane is Robert McNevin of 312 Union Federal Building, Indianapolis, Ind. The Indiana Optometric Association has had an opportunity to review the proposed legislation under consideration and wishes to report to the committee that it is in favor of H.R. 12937, and would therefore recommend that your subcommittee give it favorable consideration for enactment.

Mr. DOWDY. May I say, Mr. McNevin, if you have a prepared statement, it will be made a part of the record and you can brief it for us if you wish to do it that way.

Mr. McNEVIN. Yes. If it please the chairman, the statement which I have here, which I would like to read at least in substance to the subcommittee this morning, is in preparation at the present time. I would like, if I may, at a later time this morning, to put that into the record. Would that be agreeable?

Mr. DOWDY. That is satisfactory.

Mr. McNEVIN. In support of the foregoing statement and recommendation, I want to testify orally and try to answer any questions which the subcommittee may have.

I have had several years' experience with the optometrists, as chief departmental counsel to the Indiana attorney general, and more

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