Doctors of optometry and consumers alert Texas attorney general to concerns about the online contact lens retailer. It was the second settlement in 2022 against Hubble for deceptive trade practices, at the state and federal levels.

After doctors of optometry and consumers sound the alarm, the Texas attorney general and Vision Path, Inc., doing business as the direct-to-consumer online contact lens retailer Hubble Contacts, reach a settlement whereby the company will pay $300,000 in civil penalties.

Under the agreement reached by Texas Attorney General Ken Paxton , the company was also asked to pay $70,000 in attorneys’ fees and to refund 24 consumers nearly $2,100 due to Hubble’s business practices.

It was the second setback for Hubble regarding misrepresenting its goods or services. On Jan. 28, the Department of Justice (DOJ) and Federal Trade Commission (FTC) announced that the government will collect $1.5 million in civil penalties, $2 million in consumer redress and subject the online contact lens seller, Vision Path, Inc.—doing business as Hubble Contacts—to ongoing compliance monitoring and a full range of operating restrictions as part of a settlement to resolve allegations that the company repeatedly violated the Fairness to Contact Lens Consumers Act (FCLCA), the Contact Lens Rule and the FTC Act. That settlement reflects a sustained, years-long effort by the AOA, state affiliates and member doctors nationwide to gather and report on patient health and safety threats posed by online contact lens sellers.

Members of the Texas Optometric Association (TOA) were satisfied with the outcome after years of advocating on patients’ behalf and against Hubble Contacts’ business tactics.

“Thank you to the optometrists who took the time to send in instances of abuse by Hubble to both TOA and the Attorney General’s office,” Matt Valdes, O.D., TOA president, says in a message to affiliate association members. “Your advocacy for your patients and profession is appreciated and helped achieve this important result.”

Says Tommy Lucas, O.D., TOA’s director of advocacy: “We are super happy that the attorney general takes patient safety very seriously. We thank the attorney general’s office and Attorney General Ken Paxton for protecting people from unscrupulous companies.”

Grassroots advocacy: perseverance and persuasion

Hubble Contacts hit the market in late 2016. Not long after in 2017, the TOA called on doctors in the state to provide examples of impropriety by Hubble—and doctors of optometry came through. Armed with hundreds of these examples, the TOA engaged the attorney general’s office on several occasions to voice its concerns about possibly illegal practices by Hubble.

“Within a year, we figured out they were substituting contact lens prescriptions illegally,” Dr. Lucas says. “Hubble would take a prescription for a modern, branded contact lens—that was professionally fit on the patient by a doctor of optometry to ensure accuracy and safety—and substitute it with their generic lens.

“Once we figured out they were illegally substituting lenses, we asked our members to start collecting cases and send us instances where they were getting a verification for Hubble contacts when they knew they had prescribed a different lens for that patient,” he says. “Texas optometrists stepped up and provided TOA with many examples of illegal substitution. Sadly, Hubble didn’t care if its contact lenses fit patients properly or were comfortable to wear. The patients had never even had them on their eyes before receiving them in the mail.”

Poorly or improperly fitted contact lenses can endanger a patient’s eyes and vision. Patients depend on doctors of optometry for safe contact wear, Dr. Lucas says, adding that doctors have an obligation to obey the law and protect the public.

Over the five years, TOA kept up its tireless advocacy effort. As the attorney general, Paxton has previously shown interest in issues around consumer protection, including the illegal sales of contact lenses. In May 2018, for instance, Paxton’s office announced it had secured assurances of voluntary compliance from 37 store owners and distribution companies after a two-year undercover sweep of businesses selling contact lenses without prescriptions in violation of the Texas Optometry Act and the state’s Deceptive Trade Practices Act. Two years earlier, an investigation by the AG’s office and the San Antonio Police Department uncovered more than two dozen novelty shops, corner stores and gas stations that had been selling contact lenses without prescriptions. The TOA has been acquainted with Paxton since his days as a state legislator.

Paxton announced the agreement with Hubble June 9.

“Hubble had a different primary motive above patient safety and obeying the law,” Dr. Lucas says. “We’re glad to see Texas consumer law enforced by the attorney general’s office.”

Texas alleges deceptive trade practices

The state of Texas contended that the company violated provisions of its Deceptive Trade Practices Act, saying on its website:

“Hubble deceptively marketed its lenses by representing them as ‘high quality’ even though they were manufactured using older technology that many other contact lens companies had moved away from. Furthermore, Hubble failed to verify consumers’ contact lens prescriptions with prescribers before filling orders, a violation of the Contact Lens Prescription Act that resulted in many consumers receiving the wrong contact lenses. When consumers complained, Hubble wrongly blamed the prescribers.”

The agreement specifies violations of Texas’ Deceptive Trade Practices Act including:

• Causing “confusion or misunderstanding” as to the source, sponsorship, approval or certification of its goods or services.
• Representing that its goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities “which they do not have.”
• Representing that its goods and services are of a particular standard, quality or grade.
• Failing to disclose information concerning goods or services which, at the time of the transactions, was known to induce buyers into transactions in which consumers would not have otherwise entered had the information been disclosed.

Beyond the agreement’s monetary provisions, the settlement requires the company to refrain from:

• Advertising contact lenses as “high quality” without sufficient evidence substantiating such claim.
• Failing to refund consumers’ payments when those consumers follow respondent’s return policies.
• Failing to advertise a return policy in a clear and conspicuous manner and that is easily accessible by consumers.
• Failing to keep verification logs on file for a period of two years.
• Failing to make verification attempts via telephone in a slow and deliberate manner and at a reasonably understandable volume.
• Failing to leave easily comprehensible instructions for prescribers when making verification attempts via telephone.
• Failing to advertise in a clear and conspicuous manner that Hubble contact lenses are only one size.
• Failing to allow consumers the capability to present electronic copies of prescriptions in connection during the ordering process.
• Failing to provide prescribers, when seeking verification of a contact lens prescription: (1) the patient’s full name and address; (2) the contact lens power, manufacturer, base curve or appropriate designation and diameter; (3) quantity of the lenses order; (4) the date of which the patient requests lenses be dispensed; (5) the date and time of the verification request; and (6) the name, telephone number, the facsimile number of a person at the contact lens dispenser’s company with whom to discuss the verification.

“After five years of growing optometrist and consumer complaints, this settlement is a long-awaited acknowledgement that the rules surrounding contact lens-related eye health and patient safety will be enforced in Texas,” Dr. Valdes says in his message.

The settlement states that the agreement does not constitute an admission by Hubble of wrongdoing, violation of the law and allegations noted in the settlement agreement.

Record federal fine announced in January

Although not a regulatory enforcement agency, the AOA takes seriously its central mission of serving as a resource to the public for reliable and current information related to eye and vision care, as well as safeguarding patients’ eye health.

The AOA first requested an investigation in 2017 from the DOJ, FTC and the Postal Inspection Service on suspected violations of the Racketeer Influenced and Corrupt Organizations statute, FCLCA and Contact Lens Rule, and mail fraud, respectively. The AOA also requested additional information from the Food and Drug Administration (FDA) over a warning letter the agency sent to Hubble Contacts’ lens manufacturer, St. Shine Optical, for facility and manufacturing violations, as well as flagged a statement on Hubble Contacts’ site that claimed such lenses were not significantly different than other popular U.S. brands.

The record fine against Vision Path in January was leveled by the DOJ and FTC. The federal complaint alleges that Hubble Contacts sold contact lenses online without verifying customers’ prescriptions; substituted its own brand of lenses for those originally prescribed by customers’ eye doctors; and falsely represented that it obtained independent consumer reviews of its products and services, when in fact, the company compensated for favorable reviews and included reviews written by people with direct connections to the company.

“The federal government’s investigation and enforcement action against Hubble Contacts is absolutely warranted and reinforces the concerns AOA and doctors have consistently asserted with federal agencies, legislators and the media since the company’s inception,” AOA Immediate Past President Robert C. Layman, O.D., said then. “On behalf of doctors of optometry and our patients, the AOA will continue to work with government officials to hold illegal medical device sellers fully accountable.”

Nationwide,  many of these same concerns to federal enforcement agencies and the AOA, even as market regulators spent years reviewing the very legal requirements Hubble Contacts is accused of violating. In addition to submitting these reports of alleged violations with the DOJ and FTC, the AOA remained in frequent contact with these agencies to encourage an investigation and hold bad actors accountable.

“The AOA played a big part in our case, too,” Dr. Lucas says. “They were always in touch with me and TOA.”

Support the AOA’s contact lens advocacy

Contact lenses are a safe, effective vision correction option when worn and cared for properly. However, poorly fitted or improperly used contact lenses can result in serious eye health and vision complications, which is why these FDA-regulated medical devices require oversight and prescription from an eye doctor as outlined by the FCLCA and Contact Lens Rule.

The AOA takes seriously its central mission not only serving as a reliable public resource on issues affecting Americans’ eye health and vision care, but also helping doctors safeguard their patients’ eyesight. In addition, the AOA regularly meets with federal officials to urge that more be done to crack down on dishonest internet and unconventional DTC sellers—and these efforts are always informed and bolstered by reports the AOA receives from doctors nationwide.

Better documentation of illegal contact lens sales helps the AOA build a case for increased enforcement by federal regulators, such as the FTC, DOJ and FDA. Here’s how doctors can report illegal sales or adverse events related to contact lenses:

• Report unlawful sales of medical products on the internet.
• Report suspicious business practices with the FTC complaint assistant.
• Report adverse reactions or problems with contact lenses.

Additionally, doctors are encouraged to complete and share this survey with the AOA on illegal and unsafe contact lenses or business practices. Such information helps the AOA better advocate for improved laws and regulations that better protect patients.

For questions or more information, please contact StopIllegalCLs@aoa.org. Interested in taking an even more direct role in combatting illegal contact lens sales? Consider joining the AOA Contact Lens and Cornea Section.

Repost from aoa.org. Read full article here.