$3.5M FTC settlement with Hubble signals ignoring contact lens rule can be costly

Following a $3.5 million FTC settlement, Vision Path – the online seller of Hubble contacts – must view its legal responsibilities through a stronger lens. But even if your business isn’t covered by the contact lens rule, don’t blink or you might miss an important message from the FTC about the proper use of customer recommendations and reviews.

The Contact Lens Consumer Fairness Act and the contact lens rule requiring prescribers to automatically give patients a copy of their prescription at the end of a contact lens fitting. Companies can only sell contacts to consumers with a prescription presented to the seller or verified by phone, fax or email with the prescriber. If the prescriber communicates to the seller within eight business hours that the prescription information is not valid, the seller must cancel the sale. If the prescriber approves the verification request or does not respond to the seller within eight business hours, the seller can legally close the sale. A sale that occurs when a prescriber does not respond within the allotted time is called a “passive verification.”

Vision Path sells its own Hubble Contacts directly to consumers through an online subscription model. The Complaint alleges that the Defendant violated the Contact Lens Rule by: 1) failing to properly verify consumer prescriptions; 2) sell contacts after prescription verification requests have been denied; 3) change prescriptions by replacing its own Hubble brand when that was not what the consumer ordered; and 4) failing to keep required records.

You’ll want to read the complaint to focus on the charges, but here are just two allegations worth a second look. The FTC says that in many cases, Hubble either failed to make required verification calls or made incomplete or incomprehensible calls. For example, the company sometimes left voicemails on phone numbers that were clearly not eye care offices and yet considered the prescriber’s inability to answer the call she did not receive as a “passive verification”. In other cases, Hubble transmitted its verification messages in a distorted robotic voice that was difficult to understand. In still other cases, Hubble played these messages over “you’re on hold” music when it should have been clear that no one in the prescriber’s office was listening.

Additionally, the complaint alleges that the company violated the contact lens rule by substituting Hubble lenses for what the consumer eye care professional prescribed. According to the FTC, the defendant did so even when it was clear that the prescriber had not fitted the consumer with Hubble lenses. In some cases, Hubble changed people even after prescribers told the company they weren’t prescribing Hubble contacts.

The FTC alleges that consumers were harmed by the company’s practices. For example, some people have received lenses that their healthcare professional did not prescribe for them and for which they were not fitted. According to the complaint:

A survey conducted by Hubble, which asked consumers to select the top three reasons for canceling their subscription, found that 24% of customer cancellations were due to customers needing multifocal or toric lenses (which Hubble does not manufacture). nor does it sell), 13% were because customers said they “couldn’t see the glasses” (which shouldn’t happen if they had been fitted for the glasses), 22% were because the customers found the glasses uncomfortable (the same, in most cases), and 18% were because customers’ eye care prescribers would not let them wear Hubble lenses.

The complaint also accuses Hubble of violating FTC law by making promises to consumers that it did not keep. For example, despite repeated assurances that Hubble would “contact your doctor on your behalf to make sure we have the correct information,” the FTC says Hubble instead relied on flawed verification practices, which often resulted in passive checking and consumers receiving lenses they hadn’t been fitted for.

Additionally, the complaint challenges as misleading some of the tactics used by Hubble to counter negative publicity and generate positive consumer reviews. For example, Hubble offered some existing consumers free leads in exchange for posting reviews on the HighYa or New York Better Business Bureau websites, but did not advise consumers to disclose that they were being paid. for their opinions. Additionally, concerned about Hubble’s BBB rating, the company has undertaken additional efforts to – in the words of a Hubble official – “rush” positive reviews. One reviewer wrote on the BBB website: “Love this company!!! Omg I’m so sick of everyone complaining because they don’t know how to follow instructions. It was literally so simple. . . . I don’t have to wait long if I also have a question and want to call them, which is surprising. Overall very satisfied customer here!” What has not been disclosed? That review came from Hubble’s own Director of Customer Experience.

To settle the law enforcement action, Hubble agreed to pay $2 million in reimbursement to those harmed by the company’s conduct and a $1.5 million civil penalty. The proposed order includes injunctive relief provisions designed to change the way the company does business going forward.

The case offers solutions for companies that sell leads and for those that use consumer reviews in their marketing.

Sellers must verify prescriptions in accordance with the contact lens rule. Make sure the number you are calling is for an eye care prescriber. When using an automated telephone system, clearly identify the call as a prescription verification request, convey the required information in an understandable tone, give the prescriber the opportunity to repeat what was said, and record the entire call. ‘call.

Do not alter consumer prescriptions. People should only wear the brand and type of lenses that their prescriber has fitted for their eyes and sellers should follow the provisions of the Contact Lens Rule designed to ensure this. For example, sellers must first provide consumers with an easy way to share their prescription – via email, SMS, file upload, etc. – before asking for a way to contact the prescriber directly. Following a different procedure or substituting another product could break the rule.

Do not distort the verification process. It is unwise for sellers to overstate the thoroughness of the verification process, especially since it can be an entirely passive process if the seller does not hear from the prescriber within the eight-hour time frame. .

Educate endorsers about disclosing unexpected material links. If there is an unexpected connection between a business and a reviewer or endorser, the FTC Approval Guides indicate that the link must be clearly and visibly disclosed. Moreover, legal compliance is a two-way street. The endorser has a duty to disclose, and the advertiser has a duty to educate endorsers and monitor what they do on behalf of the advertiser.

Looking for more compliance advice? Read the Contact Lens Rule: A Guide for Prescribers and Salespeople, the FAQ: Complying with the Contact Lens Rule, and FTC Approval Guides: What People Ask. Also worthy of your attention is a brand new publication from the FTC, Soliciting and Paying for Online Reviews: A Guide for Marketers.

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