Corporate
Jul. 27, 2002
Eyewear Seller Attacks One-Stop-Shopping Ban
LOS ANGELES - Pearle Vision, one of the country's largest retail sellers of eyeglasses, is challenging the constitutionality of California laws that bar out-of-state optical companies from selling eyewear and offering eye examinations at the same location.
In a counterclaim filed Thursday in San Diego Superior Court, Pearle Vision Inc. and Pearle Visioncare Inc. contend that California Business & Profession Code sections 655 and 2556, as applied by the state, violate the federal Commerce Clause and Equal Protection and Due Process clauses of the First and Fourteenth Amendments.
"California's statutory framework is irrational because the discriminatory treatment in favor of in-state optometrists and against out-of-state optical companies in the sale of eyewear has no rational relationship to the health, safety or welfare of the public," the complaint states. California v. Cole National Corp., GIC-783135 (San Diego Super. Ct., filed July 25, 2002).
According to the complaint, a restrictive interpretation of the state law by Attorney General Bill Lockyer not only discriminates against out-of-state companies but raises the price of eyeglasses and inconveniences consumers.
Lockyer sued the eyecare company in February, alleging the unlicensed practice of optometry and use of deceptive marketing and unfair business practices. The state since has succeeded in getting Pearle Vision to put a disclaimer in its advertisements, making it clear that Pearle Vision only sells eyewear, while Visioncare provides eye exams.
But the basic principle of offering one-stop shopping remains in dispute.
Pearle Vision, represented by Thomas R. Malcolm of Jones, Day, Reavis & Pogue in Irvine, contends in its countersuit that California consumers are being victimized by the state's discriminatory laws "intended to deter the sales of high-quality, low-cost eyewear."
Moreover, according to the complaint, Pearle Vision and Pearle Visioncare have been operating jointly in the state since 1986, and it is only recently that the state decided that the relationship violated California law.
Out-of-state optical companies must go to great lengths to offer customers access to convenient eye examinations, the complaint says. Even when they do, they cannot match the same services that may be offered by in-state optometrists, the complaint says.
First, they must affiliate with a licensed healthcare service plan authorized to employ licensed optometrists. Second, they must distinguish between services offered by an optician and those offered by a health maintenance plan.
Pearle Vision is the second company to challenge the law. In a related action, LensCrafters Eyecare Centers of America and the National Association of Optometrists and Opticians sued the state earlier this month in the U.S. Eastern District Court in Sacramento over the state laws' constitutionality. Lenscrafters v. Lockyer, 02-1464 (E.D. Cal., filed July 5, 2002).
Susan Mc Rae
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