Making a Spectacle Out of Economic Protectionism

Entrenched business interests demand that legislators protect them from economic competition, and legislators oblige.

Benjamin Franklin told us that the only things that are certain in life are death and taxes, but that is not quite true. The world offers other certainties: The sun will rise, the sun will set, and innovative new technologies that offer more options for consumers will result in demands by existing businesses that the government step in to protect them from this new competition.

So it is with the Chicago-based internet startup Opternative. Opternative offers a simple promise: Get a new prescription for glasses from the comfort of your own home. While traditional eye exams involve a patient sitting in a chair looking at images and answering questions about what they see (“Better or worse?”), Opternative cuts out the middleman. Your home computer shows you a series of images, and you use your smartphone to interact with the software and answer questions. Then the results are emailed to a participating ophthalmologist, who (if appropriate) writes you a new prescription.

This service fills a real need. It is not a replacement for full-blown eye health exams (in-person eye doctors look for things like glaucoma that Opternative cannot test for), but doctors only recommend that most otherwise healthy patients get a full exam every five years or so. In many places, though, prescriptions for corrective lenses like glasses or contacts expire after only one year—way sooner than most people have any medical reason to get another in-person exam.

As you might expect, then, Opternative has proven strikingly popular and is already helping patients and ophthalmologists in almost 40 states. The problem is that online eye exams pose a major challenge to the longstanding business model of most optometrists. (Ophthalmologists are medical doctors who specialize in eye health; optometrists are limited-practice health care professionals. Both can prescribe corrective lenses.) Optometrists perform eye exams, but many of them make the bulk of their revenue by selling their patients expensive frames in brick-and-mortar stores. Opternative, which helps its customers avoid the hassle of annual trips to the brick-and-mortar stores, is a major threat to that revenue stream.

And so, predictably, the American Optometric Association has all but declared war on Opternative, lobbying from coast to coast to persuade states to ban the new technology—with some unfortunate successes. Despite the absence of any health or safety risks to patients, the state of South Carolina passed a law this summer banning Opternative or any technology like Opternative’s. Gov. Nikki Haley vetoed the bill, but the Legislature overrode her veto.

Fortunately, the world offers another thing that is certain: IJ. As part of our ongoing commitment to fighting economic protectionism and building on our other successful challenges to economic regulations like our recent victories in Chicago and Milwaukee, IJ has teamed up with Opternative to file a major constitutional challenge to South Carolina’s ban on online eye exams.

In one sense, this case is almost something out of science fiction. Opternative’s technology—indeed, the smartphones that make Opternative’s technology possible—would have been unimaginable just 15 years ago. In another sense, though, it is a tale as old as time: Entrenched business interests demand that legislators protect them from economic competition, and legislators oblige. But while the arrival of the forces of economic protectionism is inevitable, their victory is not—and IJ stands more than ready to vindicate the rights of innovators in South Carolina and beyond.

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