The second thing is the Supreme Court case. The Oklahoma case has been alluded to as being in support of certain provisions of this proposed legislation, and I would like to comment upon that.

The Supreme Court in this case, the Oklahoma case, explicitly acknowledged the skill and ability of opticians as a class. They recognized the optician as "qualified to grind lenses, fill prescriptions and fit frames."

It takes note that "many written prescriptions contain no directive data in regard to fitting spectacles to the face" and that "in many cases the optician can easily supply the new frames or new lenses without reference to the old written prescription."

It repeats the lower court's finding that through mechanical devices and ordinary skill, the optician could take a broken lens or a fragment thereof, measure its power and reduce it to prescriptive

terms.

Based on these facts, the Court expressed a critical and uncomplimentary view of the Oklahoma statute. It found that in many cases the statute "may exact a needless wasteful requirement." They pointed out that in some respects the law is not "logical, consistent with its aims," it implied that the entire legislative scheme might well be, and the two words they used to describe it were, "unwise" and "improvident."

In reversing the opinion of the district court it did so therefore not because it agreed that prohibition of lens duplication and the other points that were at stake in that case were in the public interest, but because "it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement."

Mr. Chairman, we submit this information in the hope that this legislative body, on the basis of the information we submit, will be able to decide more easily the advantages and disadvantages of these points, and we are ready at any time to provide any additional information which you may wish.

The case that I am referring to is Williamson v. Lee Optical Company.

Approving mention has also been made of the Federal Trade Commission rules for the optical products industry.

I would like to point out that these rules contain a definition which is very pertinent to this discussion, so that on page 2 of the Trade Practice Rules, which I will submit as an exhibit, the following paragraph is contained:

It is to be understood that the word "sale" as used in (a) of the above definition and in the rules which follow, is to be construed as including the dispensing of prescription eyeglasses or contact lenses by ophthalmologists, oculists, physicians, or optometrists, to their patients, as well as the dispensing of such products by opticians to their customers.

Therefore, the Federal Trade Rules have defined the dispensing of a pair of glasses as a sale, and this bill will take the dispensing of a pair of eyeglasses from the realm of the trade practice and put it solidly in the category of a professional service.

(Copy of the Federal Trade Commission's Trade Practice Rules for the Optical Products Industry appears in the appendix at pp. 349-373.)

Mr. MILLER. I would like also to refer to two portions of the testimony given on the first day in which there were seven reasons, a total of seven reasons given in support of this proposed legislation.

On page 9 of the testimony [see p. 41 supra] of Henry J. Hoff, it is said:

The problems involved in this area are: (1), misleading advertising; (2), lack of an adequate time for thorough examination; (3), lack of quality materials; (4), consideration of profit motive above consideration of the patient's best interests. And then in the testimony of Mr. Harold Kohn [see p. 63 supra] he sets forth an excerpt from the testimony-from the report of the Senate Subcommittee on Frauds and Misrepresentations Affecting the Elderly. It says that the Senate District of Columbia Committee should examine the adequacy of present District laws on (a) widespread fixed-price advertising for regular glasses and contact lenses; (b) sale over the counter of nonprescription glasses; (c) possible need for greater authority to the District Commissioners for regulation of the corporate practice of optometry.

I read these seven reasons which have been alleged as reasons for this proposed legislation because if optometry were to control optometrists without any reference to opticians whatsoever, 99 percent of the reasons which they have alleged as I quoted and as explained by the other witnesses, 99 percent of the objections and of the complaints that they have would be taken care of without damaging the traditional practice of opticians.

In conclusion, even the proponents, as has been brought out the first day in the questioning and yesterday, are really uncertain as to how far-reaching this bill is. I think there has been a number of admissions that the language regarding written prescriptions from District of Columbia licensed optometrists or physicians is stringent. Perhaps the proponents of the bill have not taken into consideration the public welfare to the extent they have professed. Perhaps they are attempting to come through the back door, as it were, to monopolize the business of providing optical services.

In the 84th and the 85th Congresses, dispensing opticians introduced bills which would have licensed opticians. They were referred to the House District Committee, but those committees found that there was no need for regulation; if this body finds that such a need exists today, we respectfully ask that this need of licensing opticians or regulating opticians, if there is a need found to exist today, be given separate attention.

We believe that the basic question before this body is the regulation of undesirable practices by optometrists, not the invasion of the traditional functions of the dispensing opticians.

Mr. Chairman, I appreciate very much the opportunity to have made known to you the views of our two organizations, as well as of the members of our organizations in the District of Columbia, and other opticians similarly situated.

Mr. SISK. Thank you, Mr. Miller, for your statement.

You have, I believe, Mr. Miller, one of the other gentlemen with you who is to make a statement.

Mr. MILLER. Yes. At this time I would like to call upon Mr. Charles White.

Mr. SISK. Mr. White, we will hear you at 1:30. We have a quorum call going on, and so the committee will now stand in recess until 1:30. (Whereupon, a recess was taken to 1:30 p.m. of the same day.)

AFTERNOON SESSION

Mr. SISK. The committee will come to order.

When we recessed at noon, Mr. Miller, I believe you had finished your statement and had introduced Mr. White.

STATEMENT OF J. A. MILLER, EXECUTIVE SECRETARY, D.C. GUILD; ACCOMPANIED BY CHARLES WHITE, FRANK JONES, FRANK HARRIS, MR. JOSEPH STOUTEN BRUGH-Resumed

Mr. MILLER. That is right.

Mr. SISK. Mr. White, we will be glad to hear you now.

Mr. WHITE. Mr. Chairman, members of the committee, my name is Charles A. White.

Mr. SISK. Do you have copies of your statement, Mr. White? Mr. WHITE. Yes, sir. It is very short.

Mr. SISK. You may proceed.

Mr. WHITE. I appear here as a practicing optician with 40 years of experience in ophthalmic dispensing, and as chairman of the Virginia State Board of Opticians.

One of my purposes is to give to the committee the definition of "optician" as stated in the Virginia opticians license law. This definition provides for duplications and reproductions without new prescriptions. It is short and I would like to read it:

Sec. 54-398.2 (d) Code of Virginia 1950-"Optician" means any person, not exempted by Sec. 54-398.1, who prepares or dispenses eyeglasses, spectacles, lenses, or appurtenances thereto, for the intended wearers or users thereof, on prescriptions from licensed Physicians or registered Optometrists, or as duplications or reproductions of previously prepared eyeglasses, spectacles, lenses, or appurtenances thereto; or who interprets such prescriptions or such duplications or reproductions, and, in accordance therewith, measures, adapts, fits, and adjusts such eyeglasses, spectacles, lenses, or appurtenances, to the human face. The Virginia law was originally enacted in 1954, and contact lenses were not specifically mentioned in it. However, with the development of the corneal contact lens and the increase in use of this means of visual correction, the Virginia Legislature amended the law. This amendment in 1964 provides that opticians can fit contact lenses only on the prescription of an ophthalmologist or optometrist and under his direction.

Mr. HARSHA. May I interrupt you? This is probably a trivial matter. You say the Virginia optician law was enacted in 1954. Is that correct?

Mr. WHITE. Yes. I did not-yes, I did, I am sorry.

Mr. HARSHA. Then you read up here that the Virginia code for definition of "optician," you say Virginia Code of 1950?

Mr. WHITE. This is the Virginia Čode, sir, not so far as the law of the board of opticians is concerned. The board of opticians, or in other words, the law creating the board of opticians was created in 1954. Does that answer it, sir?

Mr. HARSHA. It is not important.

Mr. SISK. There seems to be a difference in date. The code item you cite is the 1950 code. You say the law was enacted in 1954. All we are trying to do is establish a sequence of events.

Mr. MILLER. Here is an official copy, and it says "Virginia Opticians License Law, Code of Virginia, 1950." Then over here, it

gives 1954 and 1955. The opticians bill was passed in 1954, as I understood it, as an amendment to the 1950 Code of Virginia and it calls for the establishment of the board of opticians in 1955.

Mr. HARSHA. I understand.

Mr. WHITE. Is that all right, sir?

Mr. SISK. Go ahead.

Mr. WHITE. However, may I interrupt for a minute and qualify that. Only on prescription. It means that we in Virginia cannot take a pair of glasses and duplicate them and convert and make contact lenses from that. It has to be on that written prescription from the doctor.

Section 54-398.27. Nothing in this chapter shall be construed in any way to authorize an optician, or anyone else not otherwise authorized by law, to make, issue, or alter optical prescriptions, or to practice ocular refraction, orthoptics, or visual training, or to fit contact lenses except on the prescription of an ophthalmologist or optometrist and under his direction, or to advertise or offer to do so in any manner. In my experience as a dispensing optician and as a member and now chairman of the board the contact lens is simply another stage in the continuing development of corrective lenses. While the most recentit is a proper function of the optician, who is acting as a technician of medicine or optometry, and, as provided in our law, upon prescription and under direction.

Experience in our State has given no reason, no reason at all, for the interference with or restriction on the traditional function of the optician in duplicating or reproducing previously prepared eyeglasses, spectacles, lenses, or appurtenances thereto, or performing the necessary fitting, measuring, or adjusting incident to this. Our law recognizes this and so provides, and we feel that the public welfare is well served by it.

In like manner, we feel that the optician must keep pace with scientific development, and in the case of the contact lens he should provide this service when directed to do so under a prescription given him.

I realize that we are dealing here with an area in which opticians are not yet licensed. I point out, however, that in our State a license does not necessarily qualify every optician in the eyes of every physician. Performance is the essence of referral, and in the end it is the judgment of the prescribing physician or optometrist which qualifies the technician.

Mr. SISK. Thank you, Mr. White.

Mr. Miller, do you have anyone else in your group who desires to make a statement?

Mr. MILLER. Mr. Chairman, we have no one else who will make a prepared statement at this time. They all would like to have had an opportunity to speak but because of the pressure of time upon the subcommittee as well as the short time intervening between our notification and our appearance, we have no other formal statements at this time.

Mr. SISK. Thank you, Mr. Miller.

Mr. Miller, just very briefly, I wanted to ask you a few questions. Your association is a nationwide association, is it, that you represent?

Mr. MILLER. That is correct.

Mr. SISK. What is your membership, in round numbers, do you know, nationally?

Mr. MILLER. Our members own and operate approximately 1,000 stores in 48 States in the Union.

Mr. SISK. And of course, there are a number of opticians in a single store?

Mr. MILLER. That is correct, Mr. Chairman.

Mr. SISK. Let me ask you whether or not you appeared or someone representing your guild appeared before a committee of the other body, the Senate, on a bill last year, I believe, or maybe the year before last it started, Senator Hart's subcommittee, dealing with the question of dispensing. Are you familiar with that bill, the bill I am referring to?

Mr. MILLER. Well, to answer your question, the two parts of your question, Mr. Chairman, someone from our organization did appear. He appeared, however, in connection with an investigative hearing, as I am quite positive that this took place before any bill was introduced, and no hearings have been held on this bill to date.

Mr. SISK. In other words, the guild has offered no testimony on S. 2568?

Mr. MILLER. No one has.

Mr. SISK. There has been no testimony on it.

Mr. MILLER. No, there has been no testimony on it.

Mr. SISK. Do you know what the position of the guild would be with reference to that piece of legislation?

Mr. MILLER. We adopted a statement on November 14 of last year on the general subject, without specific reference to this bill but on the general subject of sale of glasses by physicians. I do not have a copy with me, but it states essentially that we would support every effort by the American Medical Association and other interested groups to make any legislation unnecessary in this area.

Mr. SISK. In other words, then, as I understand your statement, Mr. Miller, and I am not trying to put words into your mouth, the guild has actually not come out officially in support of Senator Hart's bill?

Mr. MILLER. That is correct.

Mr. SISK. Has any other organization of opticians that you know of specifically come out and endorsed this piece of legislation?

Mr. MILLER. No one has. The occasion, Mr. Chairman, has never arisen for anyone, nor any opticians organizations, to endorse this legislation. As we understand it, the endorsement or the positions will be stated during the legislative hearings and we understand, at least, that this will be the purpose of the legislative hearings when they are held.

Mr. SISK. Well, the reason I was inquiring, I am sure, Mr. Miller, you are generally familiar with statements that were made during the investigative hearing by opticians. I do not want to lengthen the hearing by going through those statements, but I was somewhat interested, because as I recall, the statements by representatives of the guild did indicate at that time that they felt that three was some question as to whether or not, let's say ophthalmologists per se, should dispense eyeglasses. I assume you are generally familiar with that.