Legal Memorandum: Dispensing Contact Lenses by Mail in TX

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

           In Texas, dispensing opticians or ophthalmic dispensers*FN1 provide contact lens dispensing services and products to the public upon a physician’s or optometrist’s prescription.  Tex. Rev. Civ. Stat. arts. 4551-1, § 3(d); 4552-1.02(5) (Supp. 1993).  A contact lens dispenser must register with the Texas Board of Health, id. at art. 4551-1, § 4(a), (b), and must pay a fee, complete no more than thirty hours of classroom training and pass an examination, id. §§ 7(a); 8(a), (b).  Texas does not appear to recognize out-of-state licensure.  Advertising of prescription lenses is subject to various restrictions in Texas.  See id. at art. 4552-5.09. 

Contact lens dispensing functions include the fabrication, ordering, mechanical adjustment, dispensing, sale and delivery of the contact lenses to the consumer.  Id. at art. 4551-1, § 3(2).  A seemingly conflicting provision provides, however, that the statute does not "require . . . that a person be registered under this Act in order to engage in the sale or dispensing of contact lenses."  Id. § 13(g).  Further, a person who works in a wholesale laboratory (manufacturing facility) fabricating contact lenses need not register if the lenses are not sold directly to the public.  Id.  Nor does the Act prevent a firm from employing a registered dispenser to perform the dispensing functions at the location where the dispensing occurs.  Id. § 13(c).  Doctors and optometrists are also not subject to the dispensing requirements.  Id. § 13(a).

Due to the apparently conflicting statutory provisions, it is unclear whether contact lens dispensing may be […]