April 15, 2015
2 min read

Contact lens manufacturers file suit against Utah UPP ban

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Three contact lens manufacturers have filed separate lawsuits contesting legislation signed into law last month in Utah.

The Contact Lens Consumer Protection Act banned unilateral pricing policies (UPPs) for contact lenses in Utah, making it the first state in the U.S. to do so.

Alcon, Johnson & Johnson and Bausch + Lomb all confirmed to Primary Care Optometry News that they have filed lawsuits, claiming that the law is in violation of the U.S. Constitution.

“By removing a company’s right to set a unilateral pricing policy, the state of Utah has overstepped its bounds under the constitution," Alcon said in a statement provided to PCON. "It has passed a law that controls activity out of state and interferes with programs and practices that benefit patients, eye care professionals and the marketplace for vision care products. Alcon has filed a lawsuit challenging the constitutionality of the Utah law."

Alcon continued: "We believe that if the Utah law is enacted it will reduce access for patients to new technologies and decrease breakthrough innovation from contact lens manufacturers. Further, it will make it harder to ensure that contact lenses are sold by retailers who share Alcon’s concerns for quality eye health and patient care. It is important to note that contact lenses are regulated by the FDA as a medical device that require a prescription and regular follow-up care from a licensed eye care professional.”

Johnson & Johnson told PCON that its UPP was implemented to replace rebates and lower prices for its Acuvue lenses. As detailed in the company’s statement, Johnson & Johnson has found that 65% of Acuvue consumers have noticed reduced prices.

"In support of our policy, we have filed suit in Utah Federal District Court to invalidate a Utah state law that singles out one product – contact lenses – and makes it illegal for contact lens manufacturers to implement a UPP, a commonly used and lawful pricing policy," the company said in a statement. "We believe the state law violates the Commerce Clause of the Constitution and is at odds with Supreme Court precedent on pricing policies like ours.

"Utah is the only state with this law, and we believe very strongly that it is misguided and bad for contact lens wearers," J&J stated. "We believe the law undermines our intent to reduce consumer prices and allows complicated and confusing pricing schemes to continue. As the legal process moves forward, consumers in Utah will continue to have access to Acuvue brand contact lenses."

Bausch + Lomb also explained its rationale for filing suit.

"Bausch + Lomb believes that the Utah statute violates the U.S. Constitution by improperly attempting to regulate national commerce and by discriminating against out-of-state corporations," B+L said in a statement. "The company has filed a challenge to the law in the Utah federal court to seek vindication of its rights to decide how to conduct its business."

According to a press release that 1-800-CONTACTS issued when the Contact Lens Consumer Protection Act was signed into law, the law is scheduled to take effect this May.

Similar legislation has been introduced in other states as well, as detailed in the release. – by Chelsea Frajerman