Lawsuit Challenges South Carolina’s Shutdown Of Innovative Online Eye Exam Company

Matt Powers
Matt Powers · October 20, 2016

Columbia, South Carolina– Can the government restrict access to innovative health care technology in order to prop up an outdated business model? That is the question to be answered by a new lawsuit filed today by online company Opternative and the Institute for Justice in the South Carolina Court of Common Pleas.

Opternative is a Chicago-based startup that offers consumers a simple promise: Get a new prescription for glasses and contacts from the comfort of your own home. Operating in 39 states, their technology allows doctors to provide faster and better service to more people—but not in South Carolina. Earlier this year, the legislature passed a law banning Opternative’s technology to protect the profits of existing storefront businesses, despite allowing access to most other forms of telemedicine.

“We’re suing the state of South Carolina to protect patients’ right to accessible and affordable eye care services,” says CEO and co-founder of Opternative, Aaron Dallek. “Doctors should be able to use Visibly’s innovative telehealth technology to help patients in South Carolina see clearly.”

When vetoing the bill, Gov. Nikki Haley wrote, “I am vetoing this bill because it uses health practice mandates to stifle competition for the benefit of a single industry . . . [this law] is putting us on the leading edge of protectionism, not innovation.” Unfortunately, the legislature did not heed her message and overrode Gov. Haley’s veto.

But Gov. Haley was right: The state’s ban on online eye exams serves no real public purpose. Prescriptions for glasses in South Carolina expire after one year; and the American Academy of Ophthalmology recommends otherwise healthy patients ages 18-39 get a comprehensive eye exam every five to 10 years and otherwise healthy patients 40-54 get one every two to four years. So services like Opternative’s fill that gap. They are not meant to replace comprehensive eye exams; they are meant to expand access to care by allowing doctors to provide new prescriptions without forcing people to drive to brick-and-mortar storefronts every 12 months. That is good for doctors and good for patients. It is good for everyone—except the people who own those storefronts.

“This case presents a simple choice between new technologies that expand access to care and protectionist legislation to preserve the profits of established businesses,” explained IJ Senior Attorney Robert McNamara. “Patients and their doctors should be in charge of managing their own healthcare decisions, not the South Carolina General Assembly.”

Eyeglasses and contacts are a big industry. According to the American Optometric Association, some 202 million Americans require some form of vision correction like glasses or contacts. Euromonitor International, which publishes the world’s most comprehensive market research on the eye care industry, said that Americans spend more than $34 billion every year on spectacles and contacts.

“State courts across the country have struck down laws that protect established businesses from competition,” said IJ Attorney Joshua Windham. “We expect South Carolina’s courts to follow suit.”

Update on January 31, 2019: In December 2018, Opternative changed its name to Visibly.