looking at our statute insofar as this issue is concerned, which is unchanged or has remained unchanged since that time, states that the Indiana optometry law did not apply to eyeglasses as items of merchandise, and therefore the price advertising features of the Indiana law could not be made applicable to eyeglasses just as items of merchandise. But I think the statute or bill here does cover eyeglasses as items of merchandise, as well as ophthalmic glasses, you see. But I think it is going to prohibit that. It is not done in Indiana because of the Beck case, the court saying that this does not apply. But I think your statute does apply. But I think, again, we get to the point of clarification, where you say a man cannot advertise in a drugstore or a filling station or out in front that he sells sunglasses. This seems to me to be a little unreasonable, but to go around advertising 10-cent-store eyeglasses as purporting to correct vision seems to me something different. The point of advertising glasses is to lure somebody in to buy another product. If you have a good enough advertising man, you could advertise and get a sufficient number of the public to come in and select their glasses off the counter in a 10-cent store. I think this is harmful. So, again, in looking at this act overall, I have not really attempted in my own mind to visualize how it might be changed; I think you can write in there certain excepting provisions which would eliminate the problem you brought up. I think sunglasses, as a matter of fact, there is no evil in advertising sunglasses. I think that could be eliminated very easily. Mr. HORTON. Now, of course, ophthalmologists and physicians are professionals, and the optician, of course, is not a professional. Mr. McNEVIN. Yes, sir. Mr. HORTON. Do you have any view to advertising by the opticians? Mr. McNEVIN. Well, I can answer that question in this way, Congressman. The big problem, when the optician advertises is that advertising very often-not in all instances, but very often is designed to attract the party in, and his advertising says, complete scientific eye care. We have had instances in Indiana of free eye examinations, and so forth. Then they have the so-called captive optometrists there and they run them through all in one process. I think the evil of the optician's advertisement becomes even more important when it is viewed in terms of captive optometrists in corporate practice. I do not know how far one can go in that area. My own reaction is that they should not advertise it, because I think the minute they start advertising, they become commercialized and becoming commercialized, in order to carry the intent and purpose out completely, they have to have the optometrist in some instances. Speaking only with reference to Indiana, their ingenuity knows no bounds to select or secure the so-called captive optometrist. Once you get the captive optometrist and you continue to advertise as an optician, then you get the attendant evils and the probabilities of injuring the public, I think, are greatly enhanced. We have instances in Indiana, and mind you we are not necessarily proud of this, and we have been fighting for some time in legal action, where an optometrist in a completely ethical practice would not advertise, could not, and would not presume to advertise. But it was not uncommon-we have some instances where he might set his wife or brother up in a store next door and advertise a new type of glasses. The thing then is, you come in and say: "I want eyeglasses, you have them for $7.98; that is what I want." The question is: "Do you have a prescription?" The answer is: "No," and the obvious thing is the optometrist is next door, but the optician and the optometrist, in order to keep things going-we have had one instance where the optometrist who had been with a commercial enterprise told us, after he had jumped the fence, so to speak, that he regularly did 65 eye examinations a day. I am not an expert in optometry, I am not qualified, but I have been associated with it long enough to know that you cannot run this many eye examinations a day and not miss a lot of important elements. These optometrists, as Dr. Morgan testified here yesterday, have had sufficient education to be able to discover glaucoma and ocular histoplasmoses and a number of eye diseases and problems that they can direct the patient to a qualified physician, or qualified optomologist to treat. They cannot treat it themselves, but if they take the time, if they do proper, adequate examination, then almost without exception, if they are competent and their qualifications are such that will permit them to discover these procedures, they can. But when you get an advertising feature by the optician, you almost invariably get the alinement and the joint operation between the optician on the one hand who advertises and the optometrist on the other. I think that is where this causes a problem. Mr. HORTON. Thank you. Mr. ROUDEBUSH. I have no further questions, Mr. Chairman. Mr. WHITENER (presiding). Mr. Sisk? Mr. SISK. I only have one thing. A point was brought out after the hearing yesterday dealing with this matter of the sunglasses. I wanted to mention the fact that the question was raised with reference to the sale of protective or safety glasses. You know this is quite an item in certain areas. Here again, there is no intention to preclude the sale or require prescriptions and so on. I wanted to ask you this question, that so far as I understand your statement regarding sunglasses, you would want to include in that same category now uncorrective protective glasses, such as worn by welders and various kinds of mechanics? Mr. McNEVIN. This is true. Mr. SISK. We had no intention of placing them in the restricted category of corrective lenses. Mr. McNEVIN. That is right. These are protective devices and not designed to be corrective in terms of vision. This is where you begin to get into trouble, when you are trying to correct the visual acuity and this is too loose an operation; this is where you get into trouble. So I think your comment is well taken. Mr. SISK. That is all, Mr. Chairman. Mr. WHITENER. Judge Smith? Mr. SMITH. No questions. Mr. WHITNER. Mr. McNevin, I notice here in the exhibit of the American Optometric Society, that Indiana's Code, section 63-1004, is set forth in which the practice of optometry is defined. In your State, apparently, the practice of optometry is defined to be quite different from the language in this proposed bill. Have you compared those? Mr. McNEVIN. No, not specifically, Congressman; superficially, and in a very cursory manner, yes. I feel the language is somewhat different but I do not believe, frankly, that there is any great differential in the final analysis between the two. The language might be different. For example, my recollection is our statute says that it means, among other things, the employment of any means to detect pathology in the eye and to correct vision and so forth. We use physiological as well as, I think psychological means. Your particular bill says "the employment of any objective or subjective means for the examination of the human eye, including its associated structures." I think in the eye, the same means is obtained, so I do not see any great difference between the two, although the language is quite different, I admit. It is a question, perhaps, of semantics. Mr. WHITENER. The language on page 2 is: (2) "practice of optometry" means anyone, any combination, or all of the following acts or practices: The employment of any objective or subjective means for the examination of the human eye, including its associated structures; the measurement of the powers or range of human vision; the determination of the accommodative and refractive powers of the human eye; the determination of the scope of the functions of the human eye in general; the prescription, adaptation, use, or furnishing of lenses, prisms, or frames for the aid thereof; and so on. That is much stronger than the Indiana law. I note just from a quick glance at some of the statutes of the other States which are set forth in this booklet, that this language would seem to go beyond the philosophy of the law in most of the States. Mr. McNEVIN. You may well have reference, Congressman, to the area in which the optician often finds himself in putting on the frames or, as we discussed earlier, maybe putting in a screw or adjusting a frame. Maybe that is within the framework of adaptation. I would not, myself, so consider. Perhaps, again, it is a matter of statutory construction. I do not feel your construction here goes so far beyond the laws of other States that it becomes unreasonable in terms of the definition of the practice of optometry. So I think, frankly, this is perfectly reasonable. Mr. WHITENER. I notice, for instance, that Alaska says optometry is the employment of means or methods other than the use of drugs for the diagnosis of optical deficiency or deformities, visual or muscular abnormality of the human eye, or the prescription or application of lenses, prisms, or ocular exercises for the correction or relief of the human eye. Mr. McNEVIN. You are referring to the Indiana law, now, sir? Mr. WHITENER. That is Alaska. As I say, practicing optometry means the diagnosis by means of methods other than the use of drugs of an optical deficiency or deformity, visual or muscular abnormality of the human eye, or the prescription of lenses, prisms, or ocular exercises for the correction or relief of the human eye, or the holding of oneself out as being able to do so. Now, that is not nearly so broad as the language that is proposed here, because this limits it to a man actually saying: "I am a profes sional eye doctor", whereas this bill would seem to, as you pointed out earlier, go into a much broader area than just the professional work of an optometrist. Mr. McNEVIN. In answer to that, Congressman, I think that one point which is worthy of mention, at least, is that optometry, the qualifications and the education of optometrists have grown considerably in recent years. I have no idea when the statute of Alaska was passed, but I submit that the definition in your proposed bill here is not so broad that it would not adequately cover the services that are rendered or could be rendered by modern-day optometrists practicing either in the District of Columbia or Indiana or elsewhere. I do not think it is so broad or all-inclusive that it is going to be injurious to any particular group at all. Mr. WHITENER. I notice that California, according to this quotation of their section says, among other things: the measurement of the powers or range of human vision, or the determination of an accommodative refractive state of the human eye, or the scope of its functions, in general, or the adaptation of the lenses or frames, for the aid thereof. Mr. McNEVIN. That language, at least the latter part of it, Congressman, does not seem to be too greatly different from the language contained in section 3, subsection (2), of the present bill under consideration; namely, the prescription, adaptation, use, and furnishing of lenses, prisms, or frames for the aid thereof. So I feel again that while you get a difference in precise terminology, and perhaps a difference in semantics, in some instances, I think ultimately the definition of the practice of optometry as contained in the present bill under consideration is not so vastly different or so broadly all inclusive as to warrant a determination that it is unreasonable. Mr. WHITENER. Well, the case that you referred to, The State ex rel Booth et al., according to this annotation, held that the fact that "a person selling eyeglasses sits at a table and hands the glasses to the customer instead of permitting him to select those which they will try by which method the lenses with which the customer can best see are probably found more quickly than by starting at one end of the row and taking them out in order, does not have the effect of converting sales of eyeglasses as merchandise into the practice of optometry as defined by this section. Since the 'trial and error' method depends not on the salesman's selection but on the customer's choice after the trial." Well, now, under the language of this proposed bill, the customer could not do what the court held they could do in Indiana, could they? Mr. McNEVIN. That is true, sir, they could not. Again, this may well be one of the areas which I discussed earlier, where, whether we like it or not, major legislation is needed to protect certain members of the public from their own problems. Again, I do not wear eyeglasses, so I have no expertise in that area. But, again, it would seem to me to be an inherent danger to permit these, I think quite frankly, substandard glasses found in 10-cent stores and elsewhere for people to go in and try to pick them out by trial and error means. The same people nowadays are riding on the highways, and I think exposing people to danger. I think these lenses can very easily distort vision. If Congress feels or if people generally feel, that if somebody wants to injure their eyes and this is the type of procedure they want to engage in, and if somebody does not want to come forward and enact laws, which will tend to protect people against this sort of thing, that is something quite different. But I do think this bill will tend to prohibit that, and I think it is good that it is prohibited. Mr. WHITENER. I think code annotation in Indiana pretty well sums up what everybody ought to be striving for when it says this: "Construction of the Act." This definition of the practice of optometry when read as a whole pertains to the scientific professional examination of the eyes and vision and the furnishing of measures including lenses, for the correction of their abnormal condition. But I have a little difficulty in seeing the reason for going beyond that and saying that if a man has some crooked glasses or a broken set of frames, he has to go to an optometrist to get that done. It has no relationship whatever to the correction of abnormal conditions. Mr. McNEVIN. I think in answer to that, if a man or a party or an individual involved does have abnormal vision and a lens is broken, then I certainly, under the Indiana law, I think he would need a prescription to have that lens replaced; I know he would. But if you are talking only about the adjustment of the frames or the replacement of parts, then I would tend to agree with you, but I think it tends to go perhaps too far to legislate and require an individual to get a prescription to get minor changes or adjustments made. But the eyeglass itself, this is where you are getting into the abnormal vision and correcting procedure. When one lens is broken, then I think it is time perhaps this is not a limitation, that when one gets an eyeglass broken, he ought to get a new examination. But I think from a protective standpoint, he ought to get a prescription, it ought to be checked out and have it ground to that prescription, and it ought to be checked by the optometrist in order to correct, in order to protect himself and, as a member of the driving public, to protect him and others against his abnormal vision. Mr. WHITENER. It may well be that there ought to be some control over the competence of people who actually grind the glasses and do the mechanical side of this important work. But it seems to me that is out of place in an optometric bill. Mr. MCNEVIN. I do not know that this law could be construed as applicable to or designed to limit or restrict the general operation of an optical house or an optician. The idea, as I understand it, is to invoke a degree of professionalism surrounding the practice of optometry and to eliminate some of the evils attendant upon the so-called corporate practice, and somewhere within the framework of it, it may have an effect on what the optician does in terms of eye examinations, and so forth. I think this is certainly proper. But to say that it is directly applicable to the optician or that it goes too far in including the optician within its purview, I do not believe it really does this, Congressman. I could be mistaken, but that is my understanding and my view of the bill under consideration. Mr. WHITENER. Of course, our responsibility is to write a bill which would preclude any court adjudication which was in conflict with what you and we are trying to do. Mr. MCNEVIN. I understand that. |