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Financial Services Law Insights and Observations

FTC takes action against eye surgery provider

Federal Issues FTC Enforcement Advertisement UDAP Deceptive

Federal Issues

On January 19, the FTC announced an action against an Ohio-based eye surgery provider (respondent) concerning allegations that it engaged in “bait-and-switch” advertising. According to the FTC’s complaint, the respondent engaged in deceptive business practices by marketing eye surgery for $250, yet only 6.5 percent of patients who received consultations qualified for that price. According to the FTC, despite the advertising claims, for consumers with less than near-normal vision the company typically quoted a price between $1,800 and $2,295 per eye. The FTC also alleged that respondent neglected to tell consumers up-front that the promotional price was per-eye.

Under the terms of the decision and order, the respondent must, among other things, pay $1.25 million in redress to harmed customers. Additionally, the respondent is banned from using deceptive business practices and is required to make certain clear and conspicuous disclosures when advertising the surgery at a price or discount for which most consumers would not qualify. Specifically, such disclosures must include whether the price is per eye, the price most consumers pay per eye, and any requirements or qualifications needed to get the offered price or discount.

The Commission voted to issue the administrative complaint and accepted the consent agreement 3-1. Commissioner Christine S. Wilson issued a dissenting statement, arguing that there are “no clear rules” regarding the qualifications of eye surgery referenced in the complaint. She stated that she is “concerned that requiring the inclusion of specific medical parameters in advertisements, when those parameters could be either over- or under-inclusive depending upon the results of the consultation, could be more confusing than helpful.”

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