Legal Memorandum: Dispensing Contact Lenses by Mail in NJ

Issue: Under the laws of California, may a contact lens manufacturer dispense contact lenses by mail either directly to the consumer or to the consumer’s physician?

           Under California law, "[t]he right to dispense, sell or furnish prescription lenses at retail or to the person named in a prescription is limited exclusively to licensed physicians and surgeons, licensed optometrists, and registered dispensing opticians."  Cal. Bus. & Prof. Code § 2543 (1990).  "Dispensing opticians" are individuals, corporations or firms engaged in the business of filling prescriptions of physicians or optometrists for prescription lenses.*FN1  Id. § 2550 (Supp. 1993).  It is unlawful to dispense, replace, duplicate or change lenses without a prescription or order from a doctor or optometrist.*FN2  Id. §§ 2556, 3042 (1990).

Dispensing opticians must register with the Division of Allied Health Professions of the Medical Board of California.*FN3  Application for registration must be on forms prescribed by the Board, must be signed by the president or secretary of the corporation, and must contain the name under which the corporation proposes to do business and the business address.  Id. § 2551.  There is a $100 initial license fee.  Id. § 2565.  Further, each registrant must prominently and conspicuously display at each registered location the name and telephone number of the employee designated to handle customer complaints and inquiries.  Id. § 2554.

There is also a California statute which allows out-of-state pharmacies to ship, mail or deliver drugs or devices into California.  Id. § 4046.  The statute specifically provides, however, that "device" does not include contact lenses, id. § 4034.5(d) (Supp. 1993), and that it does not […]