Amended in Assembly April 22, 2015

Amended in Assembly March 23, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 789

Introduced by Assembly Member Calderon

February 25, 2015

An act to amend begin delete Sections 2546.5 and end delete begin insert Section end insert 2546.10 of begin insert , and to add Section 2543.5 to, end insert the Business and Professions Code, relating to contact lens sellers.

LEGISLATIVE COUNSEL’S DIGEST

AB 789, as amended, Calderon. begin delete Nonresident contact lens end delete begin insert Contact lens end insert sellers: prohibited practices: fines.

The Nonresident Contact Lens Seller Registration Act prohibits a person located outside California from shipping, mailing, or delivering, in any manner, contact lenses at retail to a patient at a California address unless registered with the Division of Licensing of the Medical Board of California. A violation of the act results in a fine of not less than $1,000 or more than $2,500 for each violation. begin insert end insert begin insert Under existing law only licensed physicians and surgeons, licensed optometrists, and registered dispensing opticians have the right to dispense, sell, or furnish prescription ophthalmic devices at retail or to the person named in a prescription, except as provided in the end insert begin insert act. end insert

This bill would raise the minimum fine begin insert for a violation of the act end insert from $1,000 to $1,500. The bill would also specify that a begin insert licensed physician and surgeon, licensed optometrist, registered dispensing optician, or end insert registered nonresident contact lens seller is not subject to any manufacturer’s unilateral pricing policy, or similar practice or agreement, that purports to establish a minimum advertised or selling price for contact lenses, and would specify that any attempt by a manufacturer of prescribed contact lenses to impose begin delete such end delete begin insert that kind of end insert a policy or practice is contrary to public policy, unlawful, and unenforceable.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 2543.5 is added to the end insert begin insert Business and
Professions Code end insert begin insert , to read: end insert

begin insert

begin insert 2543.5. end insert   

A licensed physician and surgeon, licensed optometrist,
registered dispensing optician, or nonresident contact lens seller
shall not be subject to any manufacturer’s unilateral pricing policy,
or similar practice or agreement, that purports to establish a
minimum advertised or selling price for contact lenses. Any attempt
by a manufacturer or distributor of prescribed contact lenses to
impose that kind of a policy or practice is contrary to public policy,
unlawful, and unenforceable.

end insert

begin delete

SECTION 1.  

Section 2546.5 of the Business and Professions
Code is amended to read:

2546.5.  

In order to obtain and maintain registration, a
nonresident contact lens seller shall:

(a) Be in good standing and either registered or otherwise
authorized in the state in which the selling facility is located and
from which the contact lenses are sold.

(b) Comply with all directions and requests for information
made by the board as authorized under this chapter.

(c) Maintain records of contact lenses shipped, mailed, or
delivered to patients in California for a period of at least three
years.

(d) Provide a toll-free telephone service for responding to patient
questions and complaints during the applicant’s regular hours of
operation, but in no event less than six days per week and 40 hours
per week. The toll-free number shall be included in literature
provided with each mailed contact lens prescription. All questions
relating to eye care for the lens prescribed shall be referred back
to the contact lens prescriber.

(e) Provide the following or a substantially equivalent written
notification to the patient whenever contact lenses are supplied:

WARNING: IF YOU ARE HAVING ANY UNEXPLAINED
EYE DISCOMFORT, WATERING, VISION CHANGE, OR
REDNESS, REMOVE YOUR LENSES IMMEDIATELY AND
CONSULT YOUR EYE CARE PRACTITIONER BEFORE
WEARING YOUR LENSES AGAIN.

(f) Disclose in any price advertisement any required membership
fees, enrollment fees, and indicate that shipping costs may apply
unless the advertisement specifically and clearly states otherwise.

(g) Provide a toll-free telephone number, facsimile line, and
electronic mail address that are dedicated to prescribers and their
authorized agents for the purposes of confirmation of contact lens
prescriptions. These numbers, along with an electronic mail
address, shall be included in any communication with the prescriber
when requesting confirmation of a contact lens prescription.

(h) It shall be considered a deceptive marketing practice for any
nonresident contact lens seller to publish or cause to be published
any advertisement or sales presentation relating to contact lenses
representing that contact lenses may be obtained without
confirmation of a valid prescription.

(i) A registered nonresident contact lens seller shall not be
subject to any manufacturer’s unilateral pricing policy, or similar
practice or agreement, that purports to establish a minimum
advertised or selling price for contact lenses. Any attempt by a
manufacturer of prescribed contact lenses to impose such a policy
is contrary to public policy, unlawful, and unenforceable.

end delete

SEC. 2.  

Section 2546.10 of the Business and Professions Code
is amended to read:

2546.10.  

(a) A person who violates any of the provisions of
this chapter shall be subject to a fine of not less than one thousand
five hundred dollars ($1,500) nor more than two thousand five
hundred dollars ($2,500) per violation. The fines collected pursuant
to this section shall be available upon appropriation to the Medical
Board of California for the purposes of administration and
enforcement.

(b) The Medical Board of California shall adopt regulations
implementing this section and shall consider the following factors,
including, but not limited to, applicable enforcement penalties,
prior conduct, gravity of the offense, and the manner in which
complaints will be processed.

(c) The proceedings under this section shall be conducted in
accordance with the provisions of Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code.