S.C. Judge Dismisses Opternative Lawsuit Challenging State Law on Online Eye Tests

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COLUMBIA, S.C.—A lawsuit brought here in 2016 by Opternative Inc. challenging the constitutionality of a state law related to telehealth and online refractive eye tests was dismissed by a state court judge late last week. Judge DeAndrea Gist Benjamin of Common Pleas court found that Opternative had “failed to demonstrate that it had standing to bring this claim,” according to the decision filed by the court. The judge’s decision also noted that “South Carolina-licensed ophthalmologists can presumably make their own decisions about whether and how to use—or not use—Opternative’s online technology to assist them in their provision of lawful corrective-lens prescriptions to their patients.”

The suit was filed by the Institute for Justice (IJ) on behalf of Opternative. South Carolina’s Department of Labor, Licensing and Regulation and Board of Medical Examiners were the defendants in the suit.

Opternative plans to appeal the judge’s ruling, Institute for Justice senior attorney Robert McNamara told VMAIL on Monday. “We absolutely expect to appeal,” he said in an email. “South Carolina passed a law prohibiting Opternative from operating its business in the state—that is the definition of an ‘injury,’ and we expect the appellate courts to see it the same way.”

Opternative brought its lawsuit in October 2016, as VMAIL reported, in an attempt to have the South Carolina law overturned and to permit South Carolina-licensed eyecare professionals to write corrective-lens prescriptions based upon Opternative’s online technology. At the time, Opternative said the South Carolina law “effectively prohibits South Carolina-licensed ophthalmologists from using [Opternative technology] to issue any prescriptions at all. The purpose of this new law is not to protect the public health or safety but instead to protect the profits of established businesses.”

The South Carolina legislate passed the legislation early in 2016 after overriding then-Governor Nikki Haley’s veto of the bill after its first trip through the legislature. Opternative said earlier this month that it now offers eye tests in 34 states.