SALT LAKE CITY, Utah—In response to last month’s passage of the “Contact Lens Consumer Protection Act” in Utah, three leading contact lens manufacturers (Alcon, Bausch + Lomb, and Johnson & Johnson Vision Care) have filed lawsuits to stop that state’s attorney general from enforcing the new law.

Scheduled to go into effect on May 12, 2015, the law was signed on March 27, 2015, by Utah Governor Gary Herbert in response to the major contact lens manufacturers instituting Unilateral Pricing Policy (UPP) programs over the past two years. The new law in Utah, as well as other similar bills proposed in a number of other states (see “What’s the Status of State Bills Opposing UPP Policies?”), intend to stop contact lens manufacturers from pursuing UPP programs.

Lawsuits filed by the contact lens manufacturers in the U.S. District Court of Utah on Tuesday, April 14, 2015, allege that the Utah law violates the U.S. Constitution.

In its lawsuit filed against Sean D. Reyes, the Attorney General of Utah, Johnson & Johnson Vision Care alleges that “the statute violates the Commerce Clause of the United States Constitution” because of “aggressive lobbying by in-State commercial interests . . . to regulate the nationwide contact lens market.”

In a statement provided to VMail, Johnson & Johnson Vision Care said, “Our Unilateral Pricing Policy (UPP) lowers prices for Acuvue brand consumers and gets rid of complicated and seldom-redeemed rebates. The policy is working: 65% of Acuvue Brand wearers have realized reduced prices since our pricing policy was implemented.

“In support of our policy, we have filed suit in Utah Federal District Court to invalidate a Utah state law that singles out one product – contact lenses – and makes it illegal for contact lens manufacturers to implement a UPP – a commonly used and lawful pricing policy. We believe the state law violates the Commerce Clause of the Constitution and is at odds with Supreme Court precedent on pricing policies like ours.

“Utah is the only state with this law, and we believe very strongly that it is misguided and bad for contact lens wearers. We believe the law undermines our intent to reduce consumer prices and allows complicated and confusing pricing schemes to continue. As the legal process moves forward, consumers in Utah will continue to have access to Acuvue Brand contact lenses.”

Similarly, Alcon, in its lawsuit, alleges “the Amendment violates the Commerce Clause of the United States Constitution by regulating purely extraterritorial conduct, impermissibly discriminating against out-of-state interests, and placing burdens on interstate commerce that are clearly excessive in relation to local benefits.”

Alcon, in a statement provided to VMail, said, “By removing a company’s right to set a unilateral pricing policy, the state of Utah has overstepped its bounds under the constitution. It has passed a law that controls activity out of state and interferes with programs and practices that benefit patients, eyecare professionals, and the marketplace for vision care products.

“We believe that if the Utah law is enacted it will reduce access for patients to new technologies and decrease breakthrough innovation from contact lens manufacturers. Further, it will make it harder to ensure that contact lenses are sold by retailers who share Alcon’s concerns for quality eye health and patient care. It is important to note that contact lenses are regulated by the FDA as a medical device that require a prescription and regular follow-up care from a licensed eyecare professional.”

Bausch + Lomb’s lawsuit also alleges that Utah’s Contact Lens Consumer Protection Act violates the Commerce Clause of the Constitution. In a statement provided to VMail, the company said, “Bausch + Lomb believes that the Utah statute violates the U.S. Constitution by improperly attempting to regulate national commerce and by discriminating against out-of-state corporations. The company has filed a challenge to the law in the Utah federal court to seek vindication of its rights to decide how to conduct its business.”

The lawsuits seek a preliminary injunction barring enforcement of the new law, a declaration that the law is invalid and unconstitutional, and an appropriate schedule for permanent injunctive relief.

Prior to these lawsuits filed by the contact lens manufacturers this week, 15 anti-UPP class action lawsuits have also been filed in states throughout the country, as reported by VMail, March 30, 2015.