Strengthening Constitutional Self-Government

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Big Optometry

Over at the Acton Institute blog, Hunter Baker provides a very short but very clear example of what can go wrong when well meaning well lobbied regulators use the power of government to protect consumers milk consumers.  Why, exactly, are people inclined to trust bureaucrats and lobbyists over the judgment of citizens?  And what does it mean to be a citizen (or, even, just an adult) in a country that finds it necessary to forbid you from replacing a scratched lens on a pair of glasses that are working perfectly well for you?  Amazing.
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You know I like the Acton Institute for such common sense observations. Even better such an article is capable of independent creation. This is bad for copyright, but what is bad for copyright is good for politics, or shared understanding. You don't have to read such ideas from the Acton Institute, it isn't a Berkeleyian tree falls in a forest question. As someone who wears glasses I have been aware of this problem since 1999.

Thankfully there is a way to break the law via contacts.com or eyebuydirect.com The caveat here is that contacts and glasses are rather complicated. The typical rube like myself knows his perscription, but not necessarily his axis. sphere or cylinder.

I do suppose that these additional factors have a lot to do with how well you will see,+ when you are younger your eyes do change some...plus you may have ethical and legal qualms with lying on the internet (you have to promise you have a valid perscription, and provide a number to a doctor who can double check your story).

Looking into this there are enough transaction costs(to include ethical, legal concerns) to perfectly ballance this story out.

The small subset of people who simply work around the impact of the law by using the internet, aren't enough, plus optomitrists will from time to time sue companies like contacts.com if the internet restrictions aren't tough enough.

What does citizenship mean? It means you form a coallition of eyeglass wearing folks, who commit to working around the law by using the internet.

Then you speak to the Lens Crafters manager. You tell him look, I follow your stock)LUX) and comment on Seeking Alpha, but as an individual I don't matter. I am here to tell you a secular story. Its a story that might be posted on at the Huffington Post, it might be commented on by the Acton institute. The story of Hunter Baker or Joe Smith can either be true or fictional as to the details. But a company like Lens Crafters with a brick and motar type presence is going to get a lot of walk in traffic where folks are looking to replace a scratched lens. You guys need to support a candidate who will make repeal of this state law happen, because the walk in traffic has money, but once you cede the advantage of your walk in traffic, your fixed costs and overhead don't make you so cost competitive(transaction cost wise). If Hunter Baker has to buy glasses because the law prevents him from buying a single lens and makes him get a new perscription...well....

Hunter Baker is sophisticated, he realizes that this law doesn't necessarily benefit lens crafters...but a lot of folks won't see it this way. Some folks will blame lens crafters. Plus since we have felt powerless since 1999, us glasses wearing folks might just decide that LensCrafters as the gorilla with power needs to be held strictly liable regardless, and this also works well because the customer is looking for value, and your value is well...convenience and not price.

Granted there might be some sort of medical reason for expiration of perscriptions due to changes in eyes and the blessings of science which give us finely tuned and personalized contacts and glasses. Maybe a 2 year expiration for children and those over 60, and a 5 year barrier for those over 20 and under 60.

Just another example of the state finding a "rational basis" and then applying it in a way that is overbroad.

Actually my thinking on the universal applicability of the rule/observation, led me to examine the article a bit more closely.

"State law prohibits Lenscrafters from replacing the lens."

This is true, but also false. That is many states have such laws. But.... thankfully I have a lexisnexis account.

§ 315.11 Effect on state and local laws.

(a) State and local laws and regulations that establish a prescription expiration date of less than one year or that restrict prescription release or require active verification are preempted.

(b) Any other State or local laws or regulations that are inconsistent with the Act or this part are preempted to the extent of the inconsistency.

But this is just a CFR... okay fine.

§ 315.9 Enforcement.

Any violation of this Rule shall be treated as a violation of a rule under section 18 of the Federal Trade Commission Act, 15 U.S.C. 57a, regarding unfair or deceptive acts or practices, and the Commission will enforce this Rule in the same manner, by the same means, and with the same jurisdiction, powers, and duties as are available to it pursuant to the Federal Trade Commission Act, 15 U.S.C. 41 et seq.

Basically under 15 U.S.C. 57a the federal government (FTC) has taken this over.

So this is just one more level, one more way in which the 10th ammendment and anti-commandering concerns manifest themselves. I am not sure I am far out in saying that Hunter Barker is a fairly sophisticated party, heck he is probably a proffesional at the Acton Institute. But it isn't the case technically that state law prohibits Lenscrafter's from replacing the lens.

Actually it is probably the CFR's, while technically I think it is a coin flip if a state could make a term longer than a year.

In favor of a state's autonomy to have a law where the perscriptions expire in over a year you have the plain meaning reading of:

16.315.5.

(a) In general. A contact lens prescription shall expire:
(1) On the date specified by the law of the State in which the prescription was written, if that date is one year or more after the issue date of the prescription;

But...

(3) No prescriber shall include an expiration date on a prescription that is less than the period of time that he or she recommends for a reexamination of the patient that is medically necessary.

That is as long as the period is at least 1 year, anything longer than a year is left up to the optometrists judgement of what is "medically necessary".

Since determinations of what is "medically necessary" are basically left to the optometrist, and state law is pre-empted the "default"(which is the grounds for universal experience) is 1 year.

Two options. 1) Threaten Lens Crafters, with loss of business and hope for secular economic facts to pressure legal changes or. 2) go find a lawyer and see if you can sue your optometrist for giving you a perscription that expires in one year, on the grounds that given your age and vision, a default expiration of 1 year is based more on the economic interests of the medical community, and does not reflect what is "medically necessary".

Sue my optometrist?

I think Ohio allows us two years between eye exams. Should I be grateful?

Can't I just choose to change my glasses when I can't see well and not change when I can see well?

Except for the scratched lens problem, we can wear our glasses for as long as they are useful. Contact lenses: they go faster and it is the replacement of those that keeps people on the government's regulatory schedule for eye exams. Right before I am "due" for an exam I stock up on lenses (the change every two week variety) to last another year or so -- how long depends on the state of my bank account at the moment.

Absurdly, I have come to think of this as a form of civil disobedience, this circumventing the law. When I think of all the petty regulation of this type I avoid out of principle or economy or convenience, I can feel nobly defiant -- or ridiculous.

These are petty insults to liberty.

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