2007 Regular Session
To: Public Health and Welfare
By: Senator(s) Fillingane
AN ACT ENTITLED THE "CONTACT LENS CONSUMER PROTECTION ACT"; TO PROVIDE DEFINITIONS; TO PROVIDE THAT A MANUFACTURER SHALL ONLY SELL, MARKET OR DISTRIBUTE CONTACT LENSES IN THIS STATE THAT HAVE BEEN CERTIFIED WITH THE OFFICE OF THE ATTORNEY GENERAL; TO PROVIDE FOR MANUFACTURERS' CONDUCT; TO PRESCRIBE CRIMINAL PENALTIES FOR VIOLATIONS OF THIS ACT AND AUTHORIZE THE ATTORNEY GENERAL TO BRING CIVIL ACTION OR AN INJUNCTION; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Title. This act is known as the "Contact Lens Consumer Protection Act."
SECTION 2. Policy. It is the policy of the state that citizens who wear contact lenses pursuant to valid prescriptions should not be unreasonably denied the opportunity to purchase their contact lenses from their retailer of choice.
SECTION 3. Definitions. As used in this act:
(a) "Alternative channels of distribution" means any mail order company, Internet retailer, pharmacy, buying club, department store or mass merchandise outlet, without regard to whether it is associated with a prescriber, unless the account meets the definition of a competitor as provided for in this section.
(b) "Competitor" means an entity that manufactures contact lenses and sells those lenses within the state in direct competition with any other manufacturer.
(c) "Manufacturer" means a manufacturer, its parents, subsidiaries, affiliates, successors and assigns.
(d) "Prescriber" means an individual licensed or authorized to prescribe contact lenses, as defined in Section 73-19-61, Mississippi Code of 1972.
SECTION 4. Certification of availability of contact lenses - Exceptions. (1) Beginning July 1, 2007, a manufacturer of contact lenses doing business in the state shall certify by affidavit to the Office of the Attorney General those brands of contact lenses produced, marketed, distributed or sold by the manufacturer in the state that are made available in a commercially reasonable and nondiscriminatory manner to:
(b) Entities associated with prescribers; and
(c) Alternative channels of distribution.
(2) Notwithstanding any other provision of law, a manufacturer shall only sell, market or distribute lenses in the state that have been certified under subsection (1).
(3) Subsections (1) and (2) do not apply to:
(a) Rigid gas permeable lenses;
(b) Bitoric gas permeable lenses;
(c) Bifocal gas permeable lenses;
(d) Keratoconus lenses;
(e) Custom soft toric lenses that are manufactured for an individual patient and are not mass marketed or mass produced; and
(f) Custom designed lenses that are manufactured for an individual patient and are not mass marketed or mass produced.
(4) Any time a brand ceases to be made available after July 1, 2007, the manufacturer shall immediately certify that fact by affidavit to the Office of the Attorney General.
SECTION 5. Manufacturers' conduct. Nothing in Section 4 is intended to require a manufacturer to:
(a) Sell to a competitor;
(b) Sell contact lenses to different contact lens distributors or customers at the same price;
(c) Open or maintain any account for a contact lens seller who is not in substantial compliance with applicable Mississippi and federal laws regarding the sale of contact lenses;
(d) Decide whether a low volume account with a contact lens seller is a direct account or handled through a distributor; or
(e) Sell to customers in all geographic areas lenses that are being test marketed on a limited basis in restricted geographic areas.
SECTION 6. Penalties for violations. (1) Any person violating the provisions of this act shall be guilty of a misdemeanor, and upon conviction, shall be fined not more than One Thousand Dollars ($1,000.00) and/or imprisoned not less than six (6) months nor more than one (1) year, at the discretion of the court.
(2) The Attorney General may bring a civil action or seek an injunction and a civil penalty against a person, entity or manufacturer who violates this act.
SECTION 7. This act shall take effect and be in force from and after July 1, 2007.