Senate Bill No. 617
(By Senators Minard, Sharpe and Facemyer)
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[Introduced February 17, 2006; referred to the Committee
on the Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §46A-6L-1, §46A-6L-2,
§46A-6L-3, §46A-6L-4, §46A-6L-5, §46A-6L-6, §46A-6L-7,
§46A-6L-8 and §46A-6L-9, all relating to allowing those who
wear contact lenses under valid prescriptions to purchase
their lenses from their retailer of choice; providing that a
prescriber of contact lenses who prescribes a brand of contact
lenses to a patient, which brand is not certified by affidavit
as being available in a commercially reasonable and
nondiscriminatory manner to prescribers and directly to, and
generally within, all alternative channels of distribution,
may not also sell that brand to the same patient unless it is
certified at the time of sale; requiring a certification to
the Attorney General, West Virginia Board of Optometry and
West Virginia Board of Medicine of a list of certain brands of contact lenses; providing exceptions to certification;
providing for a listing of all brands of contact lenses that
have been certified to be made available to all prescribers;
providing a restriction on prescribing contact lenses,
including an antikickback provision; providing enforcement
mechanisms; and including criminal penalties.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §46A-6L-1, §46A-6L-2,
§46A-6L-3, §46A-6L-4, §46A-6L-5, §46A-6L-6, §46A-6L-7, §46A-6L-8
and §46A-6L-9, all to read as follows:
ARTICLE 6L. CONTACT LENS CONSUMER PROTECTION ACT.
§46A-6L-1. Short title.
This article may be known and cited as the "Contact Lens
Consumer Protection Act."
§46A-6L-2. Policy.
It is the policy of the State of West Virginia that:
(1) Its citizens who wear contact lenses pursuant to valid
prescriptions should not be denied the right to purchase their
lenses from their retailer of choice; and
(2) A manufacturer may exercise its independent business
judgment regarding the sale of contact lenses as long as the
manufacturer does not discriminate based on whether the channel of
trade is directly or indirectly affiliated with a prescriber.
§46A-6L-3. Definitions.
As used in this article:
(1) "Alternative channels of distribution" means a mail order
company, Internet retailer, pharmacy, buying club, department store
or mass merchandise outlet, without regard to whether it is
associated with a prescriber.
(2) "Brand" means manufacturer?s brand or equivalent brand of
the same lens made by the same manufacturer under federal law.
(3) "Manufacturer" means a manufacturer and its parents,
subsidiaries, affiliates, successors and assigns.
(4) "Prescriber" means an individual licensed or authorized to
prescribe contact lenses under this title.
§46A-6L-4. Prescribing contact lenses; branding.
(a) Notwithstanding any other provision of law, sixty days
after the effective date of this article, a prescriber who
prescribes to a patient a brand of contact lenses which is not
certified by affidavit under section five of this article, may not
knowingly and intentionally sell the brand to the same patient or
have a financial or legal relationship with any other person who
sells the brand to the same patient.
(b) For purposes of this article, subsection (a) does not
apply to:
(1) Rigid gas permeable lenses;
(2) Bitoric gas permeable lenses;
(3) Bifocal gas permeable lenses; and
(4) Keratoconus lenses.
(c) This section supercedes conflicting sections.
§46A-6L-5. Certification of availability of contact lenses.
(a) No later than thirty days after the effective date of this
article, a manufacturer of contact lenses doing business in this
state may certify by affidavit to the Attorney General those brands
of contact lenses produced, marketed, distributed or sold by the
manufacturer that are made available in a commercially reasonable
and nondiscriminatory manner to prescribers and entities associated
with prescribers and directly to, and generally within, all
alternative channels of distribution.
(b) If a manufacturer certifies its lenses under subsection
(a) of this section, it shall also file a copy of the affidavit
with the West Virginia Board of Optometry and the West Virginia
Board of Medicine.
(c) Subsections (a) and (b) of this section also apply any
time a brand is made available.
(d) Any time a brand certified under subsection (a) of this
section ceases to be made available after thirty days after the
effective date of this article, the manufacturer shall immediately
certify that fact by affidavit to the:
(1) Attorney General;
(2) West Virginia Board of Optometry; and
(3) West Virginia Board of Medicine.
§46A-6L-6. Publication of list of certified lenses.
(a) In order for a prescriber to determine which brands may be
prescribed and sold to the same patient under this article, the
West Virginia Board of Optometry and the West Virginia Board of
Medicine shall make available to all prescribers a listing of all
brands or contact lenses certified under section five of this
article.
(b) A prescriber shall determine whether a brand of contact
lenses is certified under section five of this article prior to
selling or facilitating the sale by another person with whom the
prescriber has a financial or legal relationship of the brand of
lenses to a patient to whom the prescriber prescribed that brand.
§46A-6L-7. Manufacturers? conduct.
(a) A manufacturer may exercise its independent business
judgment to open or maintain an account with any seller of contact
lenses as long as the manufacturer does not discriminate based on
whether the channel of trade is directly or indirectly affiliated
with a prescriber.
(b) Subject to the limitation of subsection (a) of this
section, nothing in sections five or six of this article is
intended to require a manufacturer to:
(1) Sell contact lenses to different contact lens distributors
or customers at the same price;
(2) Open or maintain any account for a contact lens seller
found to be in violation of applicable state and federal laws
regarding the sale of contact lenses;
(3) Decide whether its account with a contact lens seller is
a direct account or handled though a distributor; or
(4) Sell lenses that are being test marketed on a limited
basis in one geographic area to customers in all geographic areas.
§46A-6L-8. Anti-kickback provision.
(a) No person may provide, directly or indirectly, or offer to
provide to a prescriber as an inducement to prescribe a brand of
lenses, a gift, gratuity, cash or other item or service of monetary
value, including any action, commitment, or agreement, intended to
have or having the effect of prohibiting or otherwise inhibiting
competition in the sale of contact lenses.
(b) Subsection (a) of this section does not apply to items or
service of an educational nature or of de minimis monetary value.
§46A-6L-9. Enforcement.
(a) Knowingly and intentionally violating this article is
gross malpractice as that term is used in section eight, article
eight, chapter thirty of this code, and professional incompetence
as that term is used in section fourteen, article three, chapter
thirty of this code.
(b) A person who makes a wrongful certification under section
five of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined at least one thousand dollars
and not more than five thousand dollars.
(c) The Attorney General may bring a civil action or seek an
injunction and a civil penalty against a person making a wrongful
certification under section five of this article.
NOTE: The purpose of this bill is to
allow those who wear
contact lenses under valid prescriptions to purchase their lenses
from their retailer of choice.
This article is new; therefore, strike-throughs and
underscoring have been omitted.