Matt Powers
Matt Powers · August 24, 2022

COLUMBIA, S.C.— This morning, the South Carolina Supreme Court affirmed a lower-court ruling holding that Visibly (formerly called Opternative), a technology company that provides online vision tests, is allowed to challenge a 2016 law banning the use of their technology anywhere in the state. The lawsuit, in which Visibly is represented by the Institute for Justice (IJ), alleges that the ban is fueled not by any concerns for public health or safety but instead by a desire to protect the profits of the lobbying group (the South Carolina Optometric Physicians Association) that pushed for it.

“There’s absolutely no question that this law is the result of a small group of optometrists out to protect their own profits by forcing people to get exams and buy glasses in a brick-and-mortar shop,” explained IJ Attorney Josh Windham. “Today’s ruling will finally give us the opportunity to prove that in court.”

Visibly’s vision test, which is the first FDA-cleared online visual acuity test on the U.S. market, allows people to test their vision to easily renew an expired prescription for glasses or contacts online. It does not replace a comprehensive eye exam by an eye doctor, but the American Academy of Ophthalmology only recommends that people over forty get comprehensive exams every few years, depending on their health conditions. Eyeglass prescriptions in South Carolina expire after only one year.

Nonetheless, South Carolina law forbids doctors from writing eyeglass prescriptions without physically interacting with the person who needs glasses. The law does not require that the doctor conduct an eye exam; it does not even require that the doctor (rather than an assistant or a receptionist) be the one who physically interacts with the customer. In other words, it works only to ban online tests like Visibly’s rather than protecting the public. 

The ban has been controversial since its inception and was initially vetoed by then-Governor Nikki Haley. Haley’s veto message was frank about what the law does: “I am vetoing this bill,” she wrote, “because it uses health practice mandates to stifle competition for the benefit of a single industry, . . . putting us on the leading edge of protectionism, not innovation.” Unfortunately, Gov. Haley’s message went unheeded and the Legislature overrode her veto.

“Visibly can’t wait to provide convenient, affordable vision tests to the people of South Carolina,” said Visibly CEO Brent Rasmussen.

“South Carolina’s constitution guarantees the right to earn an honest living without unnecessary government restrictions,” concluded IJ Senior Attorney Robert McNamara. “Today’s ruling gives us the ability to vindicate this basic constitutional right and establish that the state cannot ban safe and effective technological innovations simply because they might cut into the profits of some politically powerful group.”