- - Wednesday, February 22, 2017

Optometrists are taking a page from Luddites in fiercely opposing pioneering and inexpensive consumer-friendly telemedicine.

Luddites were textile workers and skilled artisans who protested the consumer- friendly industrial revolution that put goods within the reach of the ordinary household which formerly ornamented only the mansions of the rich. Luddites stood athwart the stream of economic development yelling “Stop” to preserve their antiquated jobs and remuneration.

Telemedicine is to the old-fashioned visit to the doctor’s office visit what motor vehicles were to the horse and buggy. The app Opternative offers smartphone users “25-minute eye appointments” with results as accurate as traditional exams. GlassesOn detects the refractive error of eyes through the manipulation of light on the smartphone screen as well as the old practice of optometry.

According to the American Optometry Association, eye health examinations are required only biannually for adults aged 18 to 60. Every refill of a contact lens does not require such exams. Prescriptions can be obtained online without visiting a doctor’s office — a breakthrough in consumer convenience as dramatic as Internet shopping to avoid the headaches of crowded malls.

But in the manner of ancient guilds, optometrists are employing political clout and campaign contributions to arrest telemedicine. They are lobbying state legislatures to outlaw or cripple telemedicine apps.

In California, the state Board of Optometry is using state tax dollars to mount a public relations campaign against consumer-friendly Opternative.

The American Optometry Association is working tirelessly to crucify consumer-friendly telemedicine on a cross of protectionist greed. They are seeking to manipulate government for private gain by stifling invention and innovation — a symptom of the epidemic of crony capitalism that stagnates the economy.

At least three responses to such Luddite legislation should be considered.

First, a consumer class action might be brought to enjoin enforcement of state anti-telemedicine laws under the Commerce Clause of the U.S. Constitution, Article I, section 8, clause 3. The Supreme Court elaborated in Pike v. Bruce Church, Inc. that a state regulation whose burden on interstate commerce is clearly excessive in relation to the putative local benefits violates the Clause. State laws protecting traditional medical practice by prohibiting telemedicine competition clearly burdens interstate commerce in eye care. And there are no offsetting local benefits. Further, telemedicine is as safe and effective as the traditional methods of eye care. Virginia ophthalmologists, for example, sent an email to colleagues stating that it knew of no patient that had been injured by ocular telemedicine.

Second, the Federal Trade Commission through a rulemaking proceeding might define “unfair methods of competition” prohibited under section 5 of the Federal Trade Commission Act (FTCA) to include state anti-telemedicine laws. The FTC’s substantive rulemaking authority was sustained by the United States Court of Appeals for the District of Columbia Circuit in National Petroleum Refiners Ass’n v. FTC. In addition, the United States Supreme Court declared in Fidelity Federal Sav. & Loan Ass’n v. De La Cuesta that federal agencies may preempt state laws by rule if their organic acts contemplate such power. The FTCA is ambiguous on that score. It seems to contemplate FTC enforcement actions against private actors engaged in unfair methods of competition, not against States for the enactment of protectionist legislation. But under the Chevron doctrine of deference to an agency’s interpretation of its own charter statute, the FTC could plausibly defend preempting state anti-telemedicine statutes on the theory that they create unfair methods of competition in favor of traditional medical practice.

Third, the FTC lobbying state legislatures to repeal anti-telemedicine laws as anti-consumer, and refrain from enacting new ones.

Telemedicine represents capitalism at its best. As famed economist Joseph Schumpeter wrote in Capitalism, Socialism, and Democracy, “[I]ndustrial mutation…that incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one. This process of Creative Destruction is the essential fact about capitalism.”

Optometrists should be ashamed of their Luddite ancestry. If their thinking had prevailed in the transportation industry, their patients would still be arriving in a horse and buggy.

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