Did Governor Herbert Violate the U.S. Constitution With the Contact Lens Consumer Protection Act? A


The recent legislative session in Utah received a lot of media attention for its signing into law policies like reinstating firing squads for the death penalty or increasing protections against discrimination from housing and employment for the LGBTQ population. But one piece of law that didn’t get talked about quite as much may still be quite significant for the state, since now several contact lens companies have each hired their own Utah attorney to represent them in Utah court, claiming that the new law banning unilateral pricing policies is in violation of the U.S. Constitution.

For those of us who aren’t a Utah attorney, immersed in business world or who are too lazy to Google it, a unilateral pricing policy is simply a way by which a manufacturer can control the price of its products by setting a minimum cost. A form of “resale price maintenance,” the policy enables a manufacturer to influence the price of its products by dealers and resellers without a formal contract. If that hardly sounds fair to you, you can imagine why the Utah legislature was keen to pass the Contact Lens Consumer Protection Act.

But if you’re a contact lens manufacturer like Alcon, Johnson & Johnson, or Bausch & Lomb, this law sounds outrageous. The consequences you see to banning your ability to set a minimum price go beyond reduced profits; it will potentially “reduce access for patients to new technologies and decrease breakthrough innovation” by manufacturers. It can compromise patient care, since under FDA regulations, contact lenses are considered “a medical device that requires a prescription and regular follow-up care from a licensed eye-care professional.”

So what does a Utah attorney have to say about it? The ones representing the contact lens companies are naturally making statements like the law’s being in violation of the Commerce Clause in the Constitution, while UPPs to be “a commonly used and lawful pricing policy.”

Still, a Utah attorney like business litigator Clay Alger knows it’s not about what’s commonly used—it’s about the laws on the books and precedent set by Supreme Court cases that will ultimately decide this new policy’s fate. It’s true that the contact lens manufacturers might have a foothold in the case against the state by arguing that the CLCPA is “attempting to regulate national commerce and discriminating against out-of-state corporations.” But whether the judge hearing the case will buy that, alongside the arguments made that UPPs “reduce consumer prices” and inhibits “complicated and confusing pricing schemes,” and are therefore in the best interest of the consumers, will have to wait until the case unfolds in court.

If there’s one thing this issue makes obvious it is how easy it is to leverage the claim to protecting public health and promoting consumers interests to get what one wants. Was the legislative action claiming to be a “consumer protection act” really protecting consumers? Or do the contact lens companies have a genuine interest in setting prices? Your answer may depend on a personal level of cynicism, but we’re hopeful that for the sake of justice and freedom, the legal answer isn’t dependent on the how cynical the hearing adjudicator may be.

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