SALT LAKE CITY, Utah—The “Contact Lens Consumer Protection Act” (S.B. 169) went into effect in Utah yesterday after a federal judge refused to side with allegations by Alcon, Bausch + Lomb, and Johnson & Johnson Vision Care that the law was unconstitutional. The law prevents contact lens manufacturers from requiring all contact lens distributors to adhere to Unilateral Pricing Policies (UPP) that establish minimum retail prices.

Signed by Utah Governor Gary Herbert on March 27, 2015, in response to the major contact lens manufacturers instituting UPP programs over the past two years, the law was challenged as unconstitutional by the three contact lens manufacturers, who filed lawsuits against Sean D. Reyes, the Attorney General of Utah, in the U.S. District Court of Utah, on Tuesday, April 14, 2015.

However, on Monday, May 11, 2015, U.S. District Court Judge Dee Benson for the District of Utah, allowed the law to go into effect as scheduled yesterday based on his opinion that the “plaintiffs have failed to satisfy the court that they have met the requirements for a preliminary injunction” and “the court is not persuaded at this stage in the litigation that the plaintiffs are likely to succeed on the merits.”

Contact lens manufacturers told VMail that they plan to appeal the decision. Johnson & Johnson Vision Care said, “We are appealing the Utah District Court’s ruling because we believe the Utah state law violates the Commerce Clause of the Constitution and is at odds with Supreme Court precedent. We stand behind our lawful business policy that makes pricing on Acuvue Brand products simpler and more transparent and allows consumers to make purchasing decisions based on quality, clinical need and cost. This policy gets rid of complicated and seldom-redeemed rebates and has resulted in lower prices for 65 percent of Acuvue Brand wearers. We remain committed to providing innovative and accessible eyecare options to patients.”

Alcon, in response to the decision, “respectfully disagrees with the Court’s ruling and intends to press its claim that the Utah law violates the U.S. Constitution. Alcon is evaluating the impact of the decision on current policies and practices. To the extent required, Alcon will modify its unilateral pricing policy to avoid any potential conflict with the Utah law.”

Bausch + Lomb said in response, “We disagree with the Utah District Court’s ruling and will appeal the decision, which allows the legislation to go into effect pending our challenge to the legality of Utah's law. Bausch + Lomb’s consumer-focused policy is intended to promote investment and enhance innovation in the contact lens industry, and the U.S. Supreme Court has recently recognized the benefits of similar policies. We believe that Utah’s law is not consistent with these principles and interferes with the contact lens market in a manner that violates the Commerce Clause of the Constitution.”

Bills similar to Utah’s anti-UPP law were also introduced in 14 other states, and while some remain pending, others have failed. (See “What’s the Status of State Bills Opposing UPP Policies?”) In addition, in related lawsuits, Costco Wholesale Corp. filed an anti-trust lawsuit in a California federal court against Johnson & Johnson Vision Care, and at least 15 anti-UPP class action lawsuits have also been filed in states throughout the country, as reported by VMail.