Bona Law Urges Tenth Circuit to Keep Competition in Contact Lens Industry

Bona Law attorneys Jarod Bona and Aaron Gott filed an amicus curiae brief on behalf of LD Vision Group urging the U.S. Court of Appeals for the Tenth Circuit to uphold a Utah law that protects online discounters who compete with other retailers and optometrists on price. LD Vision argued in its brief that the Utah Contact Lens Consumers Protection Act, which prohibits manufacturers from enforcing unilateral pricing policies and resale-price-maintenance agreements against retailers in sales to Utah consumers, is constitutional so long as the state does not interpret it in a way that favors Utah-based retailers in sales to consumers in other states.

The constitutional dispute that intersects with the state antitrust statute is based upon the dormant commerce clause, which limits the ability of states to act in such a way that imposes certain extraterritorial effects, discriminates against out-of-state economic interests, or imposes excessive burdens on interstate commerce.

The suit was brought by three major contact lens manufacturers, Alcon Laboratories, Johnson & Johnson, and Bausch & Lomb, challenging the statute as discriminatory against interstate commerce in violation of the dormant Commerce Clause of the U.S. Constitution. 1-800 Contacts and Costco Wholesalers intervened to support the law. The manufacturers appealed a district court decision denying a preliminary injunction against Utah Attorney General Sean Reyes from enforcing the law.

LD Vision was the only out-of-state retailer to file a brief in the case. The company owns such websites as LensDiscounters.com and OptiContacts.com. A three-judge panel will hear oral argument late August.