UNITED STATES OF AMERICA BEFORE THE FEDERAL TRADE COMMISSION In the Matter of PROPOSED TRADE REGULATION ADVERTISING OF OPHTHALMIC Proposed 16 CFR Part 456 COMMENTS OF THE AMERICAN OPTOMETRIC ASSOCIATION RELATING TO PROPOSED TRADE REGULATION RULE CONCERNING THE ADVERTISING OF May 10, 1976 Price Advertising Of Ophthalmic Goods Will Not Provide Meaningful Information To Adequate Information Currently Is Avail- able To Allow Patients To Select Eye Care It Is Likely That The Removal Of Existing Restraints On Advertising Will Result In A Deterioration Of The Quality Of Service The Proposed Rule Should Not Be Amended To Eliminate Restraints On Advertising Under All The Circumstances, State Laws Restricting The Advertising Of Ophthalmic The Commission Should Not Propose A Trade Regulation Rule Relating To State Restric- COMMENTS OF THE AMERICAN OPTOMETRIC ASSOCIATION These comments are submitted on behalf of the American Optometric Association ("AOA") in response to the Federal Trade Commission's invitation to comment on the proposed trade regulation rule concerning the advertising of ophthalmic goods and services published in the January 16, 1976 Federal Register (41 F.R. 2399). The comments include data and summarize AOA's position concerning issues of fact, law or policy bearing upon the proposed rule, the designated issues published in the April 2, 1976 Federal Register (41 F.R. 14194), and other matters referred to in the Initial Notice of proposed rulemaking. AOA intends to provide additional information and views by testimony and exhibits at the public hearings which presently are scheduled to be held as a part of this proceeding. AOA vigorously opposes the adoption of the proposed trade regulation rule. It is AOA's position that the Commission lacks legal authority to promulgate a rule which would preempt the statutes and regulations of the overwhelming majority of the States prohibiting or restricting the advertising of ophthalmic goods and services. AOA has separately submitted a motion to dismiss this rulemaking proceeding, accompanied by a legal memorandum in support thereof which shows that, under the applicable legal standards, the Commission does not have authority to override such state health care laws. Apart from the Commission's lack of legal authority-which AOA's separate memorandum abundantly establishes--the proposed rule should not be implemented because it is contrary to the public interest and contrary to long-standing and wellestablished concepts of the public health and welfare. For reasons which will be discussed herein and at the hearings, it is AOA's position that State restrictions on the advertising of health care services and materials cannot properly be regarded as "unfair acts and practices"; instead, such restrictions have been fashioned, in the light of existing conditions within each State, in order to protect patients against the evils and abuses of such advertising, and to pro mote and assure the quality of health care services and materials. Indeed, the proposed rule represents a fundamen tal, and unwarranted, departure from the clear national policy that matters of this nature shall be determined by the States, and that State regulation of health care advertising is a valid and proper exercise of a State's police power. Under all the circumstances, AOA strongly urges that the Commission should not adopt the proposed rule. A. AOA's Special Interest In This Proceeding AOA is a national, non-profit professional association of more than 19,500 members, consisting of Doctors of Optometry, optometry educators and students. It is estimated that optometrists treat approximately 70% of the patients in this country seeking vision care, and our members, who constitute the great majority of the practising optometrists, have a personal and immediate responsibility for their patients' visual health. AOA is dedicated to the preservation and enhancement of the visual health of the public, and AOA's objects, as stated in its constitution, "are to improve the vision care and health of the public and to promote the art and science of the profession of optometry". |