An attempt by LensCrafters, Cole Vision Corp., U.S. Vision and the National Association of Optometrists and Opticians (a trade group) to throw out a 1967 Tennessee O.D. law failed, as the highest court in the land refused to hear the case.

The Tennessee law states that optometrists are not permitted to practice or offer to practice in, or in conjunction with any retail store or other commercial establishment where merchandise is displayed or offered for sale. However, Tennessee O.D.s are allowed to lease office space within a retail store or other commercial establishment where merchandise is displayed or offered for sale if the O.D.s office has a separate entrance from the store and if the O.D. practices independently from the store.

The catalyst for the case was a lawsuit filed by LensCrafters in 1998 against the Tennessee Board of Optometry and the state of Tennessee after an O.D. who was leasing an office at a Tennessee LensCrafters store was fined by the board because his office did not have a separate entrance from the retail store. The plaintiff argued that the 1967 law is discriminatory, as private-practice O.D.s can have optical shops in their offices, but retailers cannot have O.D.s practice within their retail space. LensCrafters also stated that the law restricts interstate commerce. (See News Review, LensCrafters is Back in Tennessee Court, June 15, 2005.)

In 2003, the U.S. District Court for the Middle District of Tennessee ruled in favor of the board and the state. The court said that LensCrafters was comparing apples to oranges in that a retail store is not the same as a private optometric practice. The court also said that the then 36-year-old law did not inflict financial injury on LensCrafters and that states are justified in controlling who may practice optometry and under what conditions in the interest of public welfare.

LensCrafters appealed the decision, but the U.S. Circuit Court of Appeals for the 6th Circuit upheld the original decision this past April. This prompted the aforementioned retailers to appeal the decision to the U.S. Supreme Court, where their petition for a hearing was refused.

Vol. No: 143:03Issue: 3/15/2006