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First Substitute S.B. 176
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Senate 3rd Reading Amendments 2-20-2006 rd/jlw
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Senate 2nd Reading Amendments 2-17-2006 rd/jlw
This document includes Senate 2nd Reading Floor Amendments incorporated into the bill
on Fri, Feb 17, 2006 at 5:02 PM by rday. -->
This document includes Senate 3rd Reading Floor Amendments incorporated into the bill
on Mon, Feb 20, 2006 at 11:19 AM by rday. -->
This document includes Senate 3rd Reading Floor Amendments (CORRECTED)
incorporated into the bill on Mon, Feb 20, 2006 at 11:54 AM by rday. -->
Senator Curtis S. Bramble proposes the following substitute bill:
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CONTACT LENS CONSUMER PROTECTION
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ACT
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2006 GENERAL SESSION
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STATE OF UTAH
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Chief Sponsor: Curtis S. Bramble
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House Sponsor:
Jeff Alexander
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LONG TITLE
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General Description:
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This bill enacts the Contact Lens Consumer Protection Act within the Utah Optometry
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Practice Act in relation to prescribing, marketing, selling, and certifying contact lenses.
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Highlighted Provisions:
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This bill:
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. defines "alternative channels of distribution," "brand," and "prescriber" for purposes
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of the Contact Lens Consumer Protection Act;
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. provides that a prescriber of contact lenses who prescribes a brand of contact lenses
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to a patient, which brand is not certified by affidavit as being available in a
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commercially reasonable and nondiscriminatory manner to prescribers and S. [
directly
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to, and generally within, all
] entities associated with prescribers and to .S alternative channels
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of distribution, may not also sell
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that brand to the same patient unless it is certified at the time of sale;
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. provides for exceptions to certification;
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. provides for a listing of all brands of contact lenses that have been certified to be
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made available to all prescribers;
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S. provides for manufacturer's conduct; .S
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. provides prohibitions; and
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. provides penalties for violations of the certification provisions.
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Senate 2nd Reading Amendments 2-17-2006 rd/jlw
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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ENACTS:
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58-16a-901, Utah Code Annotated 1953
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58-16a-902, Utah Code Annotated 1953
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58-16a-903, Utah Code Annotated 1953
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58-16a-904, Utah Code Annotated 1953
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58-16a-905, Utah Code Annotated 1953
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58-16a-906, Utah Code Annotated 1953
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58-16a-907, Utah Code Annotated 1953
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58-16a-908, Utah Code Annotated 1953
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58-16a-909, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
58-16a-901
is enacted to read:
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Part 9. Contact Lens Consumer Protection Act
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58-16a-901. Title.
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This part is known as the "Contact Lens Consumer Protection Act."
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Section 2.
Section
58-16a-902
is enacted to read:
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58-16a-902. Policy.
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It is the policy of the state that citizens who wear contact lenses pursuant to valid
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prescriptions should not be denied the opportunity to purchase their contact lenses from their
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retailer of choice.
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Section 3.
Section
58-16a-903
is enacted to read:
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58-16a-903. Definitions.
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As used in this part:
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(1) "Alternative channels of distribution" means S. [
a
] any .S mail order company,
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Internet
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retailer, pharmacy, buying club, department store, or mass merchandise outlet, without regard
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to whether it is associated with a prescriber S. , unless the account meets the definition of a
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competitor as provided for in this section .S .
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(2) "Brand" means manufacturer's brand or equivalent brand of the same lens made by
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the same manufacturer under federal law.
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S. (3) "Competitor " means an entity that manufactures contact lenses and wholesales
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those lenses in direct competition with any other manufacturer within the state.
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[
(3)
] (4) .S "Manufacturer" means a manufacturer, its parents, subsidiaries, affiliates,
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successors, and assigns.
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S. [
(4)
] (5) .S "Prescriber" means an individual licensed or authorized to prescribe contact
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lenses
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under this title.
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Section 4.
Section
58-16a-904
is enacted to read:
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58-16a-904. Prescribing contact lenses -- Branding.
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(1) A prescriber who prescribes to a patient a brand of contact lenses which is not
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certified by affidavit under Section
58-16a-905
, may not knowingly and intentionally then sell
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that brand to the same patient or have a financial or legal relationship with any other person S. or
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entity .S
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who sells the brand to the same patient.
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(2) For purposes of this chapter, Subsection (1) does not apply to:
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(a) rigid gas permeable lenses;
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(b) bitoric gas permeable lenses;
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(c) bifocal gas permeable lenses; and
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(d) keratoconus lenses
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S. (e) custom soft toric lenses that are manufactured for an individual patient and are not
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mass marketed or mass produced; and
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(f) custom designed lenses that are manufactured for an individual patient and are not
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mass marketed or mass produced .S .
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(3) This section supercedes conflicting sections.
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Section 5.
Section
58-16a-905
is enacted to read:
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58-16a-905. Certification of availability of contact lenses.
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(1) Beginning June 1, 2006, a manufacturer of contact lenses doing business in the
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state may certify by affidavit to the Attorney General those brands of contact lenses produced,
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marketed, distributed, or sold by the manufacturer that are made available in a commercially
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reasonable and nondiscriminatory manner to prescribers and entities associated with prescribers
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and S. [
directly
] .S to S. [
, and generally within, all
] .S alternative channels of distribution.
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(2) If a manufacturer certifies its lenses under Subsection (1), it shall also file a copy of
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the affidavit required under Subsection (1) with the S. [
State Board of Optometry
] Optometrist
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Licensing Board .S and the S. [
State
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Board of Medical Examiners
] Physicians Licensing Board .S .
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(3) Subsections (1) and (2) also apply any time a brand is made available.
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(4) Any time a brand certified under Subsection (1) ceases to be made available after
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June 1, 2006, the manufacturer shall immediately certify that fact by affidavit to:
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(a) the Attorney General;
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(b) the S. [
State Board of Optometry
] Optometrist Licensing Board .S ; and
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(c) the S. [
State Board of Examiners
] Physicians Licensing Board .S .
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Section 6.
Section
58-16a-906
is enacted to read:
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58-16a-906. Publication of list of certified lenses.
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(1) In order for a prescriber to determine which brands of contact lenses may be
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prescribed and sold to the same patient under this part, the S. [
State Board of Optometry
]
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Optometrist Licensing Board .S and the
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S. [
State Board of Medical Examiners
] Physicians Licensing Board .S shall make available to
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all prescribers a listing of all brands
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of contact lenses certified under Section
58-16a-905
.
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(2) A prescriber shall determine whether a brand of contact lenses is certified under
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Section
58-16a-905
prior to selling or facilitating the sale by another person with whom the
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prescriber has a financial or legal relationship of the brand of lenses to a patient to whom he
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prescribed that brand.
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Section 7.
Section
58-16a-907
is enacted to read:
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58-16a-907. Manufacturers' conduct.
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(1) A manufacturer may exercise its independent business judgment to open or
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maintain an account with any seller of contact lenses as long as the manufacturer does not
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discriminate based on whether the S. [
channel of trade
] account .S is directly or indirectly
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affiliated with a
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prescriber.
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(2) Subject to the limitation of Subsection (1), nothing in Sections
58-16a-905
and
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58-16a-906
is intended to require a manufacturer to:
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(a) S. sell to a competitor;
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(b) .S sell contact lenses to different contact lens distributors or customers at the same
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price;
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S. [
(b)
] (c) .S open or maintain any account for a contact lens seller found to be in
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violation of
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applicable state and federal laws regarding the sale of contact lenses;
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S. [
(c)
] (d) .S decide whether S. [
its
] a low volume .S account with a contact lens
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seller is a direct account or handled
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through a distributor; or
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S. [
(d)
] (e) .S sell lenses that are being test marketed on a limited basis in one geographic
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area to
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customers in all geographic areas.
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Section 8.
Section
58-16a-908
is enacted to read:
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58-16a-908. Prohibitions.
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(1) A person may not directly or indirectly provide or offer to provide to a prescriber as
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an inducement to prescribe a brand of contact lenses a gift, gratuity, cash, or other item or
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service of monetary value, including any action, commitment, or agreement, intended to have
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or having the effect of prohibiting or otherwise inhibiting competition in the sale of contact
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lenses.
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(2) Subsection (1) does not apply to items or service of an educational nature or of de
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minimus monetary value.
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Section 9.
Section
58-16a-909
is enacted to read:
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58-16a-909. Penalties for violations.
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(1) Knowingly and intentionally violating Section
58-16a-904
or Subsection
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58-16a-906
(2) is considered unprofessional conduct.
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(2) (a) Making a wrongful certification under Section
58-16a-905
is a class A
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misdemeanor.
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(b) The attorney general may bring a civil action or seek an injunction and a civil
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penalty against a person making a wrongful certification under Section
58-16a-905
.
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