A social media advertising ruling against reality TV personality Marnie Simpson and her zero-powered cosmetic contact lens website ispyeyes.com brought the issue of illegal contact lens sales back into the public spotlight recently.
The Advertising Standards Authority (ASA) ruling told Simpson and ispyeyes.com not to encourage an unsafe practice or to imply they could legally sell zero powered contact lenses in the UK. The site, which is registered in the British Virgin Islands, continues to sell the zero-powered lenses, although terms and conditions wording has been amended. Despite the location of the site, the ASA ruled that it was targeting UK consumer and took action accordingly.
The General Optical Council, which helped the ASA form a decision, said the location of the site meant it had very little power to take action. ‘Unlike the ASA, we have no statutory investigation or prosecution powers for tackling illegal optical practice, based outside or within the UK,’ said a GOC spokesperson.
‘We would have to bring a private prosecution in the Magistrates Court, and there are technical legal difficulties in using UK legislation to bring a criminal prosecution against a business or individual based outside the UK. Whereas the ASA has the authority to ban advertisements which are determined to be misleading and targeted at UK customers, we would have to convince magistrates that a non-UK seller should receive a criminal conviction for breaching UK legislation even where the seller is complying with its own domestic legislation.
‘If a non-UK business is selling prescription contact lenses or zero powered lenses illegally we send them a letter of information about the law. We will continue to work with other organisations that have statutory powers, such as the ASA and Trading Standards, to tackle illegal practice.’
Working together
While the joint work of the ASA and GOC may have lacked a headline-grabbing sanction, it does show that multi-agency collaboration and cooperation will be the way forward on tackling illegal contact lens supply with the objective of patient safety.
In the US, dialogue between the American Optometric Association (AOA) and Amazon has resulted in the retailer’s marketplace no longer showing non-compliant, decorative contact lens sellers.
In a letter to Amazon outing possible offenders, the AOA outlined that contact lenses, whether corrective or plano, were US Food and Drug Administration (FDA) regulated medical devices that not only required a prescription from a licensed practitioner for purchase, but also fell under Amazon’s own policy for medical devices and accessories.
This policy sets out how sellers must abide by all federal, state and local laws. The AOA pointed out, in this instance, this included patient protection provisions of the Fairness to Contact Lens Consumer Act (FCLCA).
The AOA’s letter said: ‘The contact lenses available for sale on Amazon are sold entirely without a prescription, which we believe is an FCLCA violation. In addition to sales via Amazon’s platform raising legal questions related to the FCLCA, the guidance provided by sellers regarding these FDA-regulated medical devices is very concerning.’
Inappropriate instructions from vendors were also highlighted. Advice included: ‘gently press the contact lens opposite clockwise or counterclockwise turn 30 times [sic], and put in a box for a new care solution ... if you do not use for a long time, please put in the box, soak with care solution [sic], replace the care solution every three days.’
The AOA told Amazon such guidance was wholly inappropriate and dangerous, with proper physician oversight necessary for medical devices that required a physician’s prescription.
In response, Amazon thanked the AOA for its diligence and reiterated its own medical devices policy while stating the company would take appropriate action when products were reported for legal non-compliance. As of early June, violating posts that were first identified and reported had been removed. The AOA said it would continue to monitor the site and report retailers.
A spokesperson for the association said: ‘While the AOA is not a regulatory enforcement agency, a central mission is to serve as a resource to the public for reliable and current information related to eye care and health care policy.’
Public awareness
If there is one positive to come out of the Marnie Simpson case, it is the column inches the story attracted. Simpson’s fame meant the story was picked up by several mainstream news outlets including the BBC, The Sun, The Independent and Talkradio. Headlines that included terms such as ‘unsafe sale’ and ‘illegal contact lenses’ would hopefully have struck a chord with her fan base.
Appealing to the public psyche has been the approach used by Optometry Australia (OA), which has reacted to what it said was an increasing number of unvalidated online contact lens sales in the country. In a story that was picked up by several health news websites, OA warned consumers that their eyesight may suffer if they took contact lens prescribing into their own hands when buying from online retailers who did not require them to validate contact lens prescriptions.
Luke Arundel, Optometry Australia’s chief clinical officer, said: ‘While we do not have issues with enabling consumers to purchase contact lenses online with a valid prescription, we do have particular concerns about new online contact lens retailers who specialise in selling one type of lens only.
‘Patients accessing these websites are able to swap from their currently prescribed contact lens to an alternative product without undergoing an appropriate review to determine if the lenses fit and provide optimal health performance on the eye. This one size fits all approach is concerning because one size and one type of contact lens material does not meet everyone’s eye health requirement.’
Although OA did not name any specific retailers, the association took aim at sites that let patients self-validate that they were in possession of a valid, in date prescriptions. It said there was nothing to stop a patient renewing a contact lens supply indefinitely without a health check, or swap to other brands or styles of contact lenses which may have a different fit or material characteristics.
‘Online pharmacies don’t just let patients pick and choose what medicines they want without provision of a valid prescription, yet this practice is common for online optical retailers,’ said Arundel.
OA has itself worked with other associations and regulators to thwart illegal contact lens supply. It said the Therapeutics Goods Administration had been provided with a submission to classify zero powered contact lenses as medical devices, a measure that would close a supply loophole.