[Federal Register Volume 75, Number 45 (Tuesday, March 9, 2010)]
[Notices]
[Pages 10799-10803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4979]
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FEDERAL TRADE COMMISSION
[File No. 091 0062]
Transitions Optical, Inc.; Analysis to Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed Consent Agreement.
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SUMMARY: The consent agreement in this matter settles alleged
violations of federal law prohibiting unfair or deceptive acts or
practices or unfair methods of competition. The attached Analysis to
Aid Public Comment describes both the allegations in the draft
complaint and the terms of the consent order--embodied in the consent
agreement--that would settle these allegations.
DATES: Comments must be received on or before April 5, 2010.
ADDRESSES: Interested parties are invited to submit written comments
electronically or in paper form. Comments should refer to ``Transitions
Optical, File No. 091 0062'' to facilitate the organization of
comments. Please note that your comment--including your name and your
state--will be placed on the public record of this proceeding,
including on the publicly accessible FTC website, at (http://www.ftc.gov/os/publiccomments.shtm).
Because comments will be made public, they should not include any
sensitive personal information, such as an individual's Social Security
Number; date of birth; driver's license number or other state
identification number, or foreign country equivalent; passport number;
financial account number; or credit or debit card number. Comments also
should not include any sensitive health information, such as medical
records or other individually identifiable health information. In
addition, comments should not include any ``[t]rade secret or any
commercial or financial information which is obtained from any person
and which is privileged or confidential. . . .,'' as provided in
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and Commission Rule
4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing material for which
confidential treatment is requested must be filed in paper form, must
be clearly labeled
[[Page 10800]]
``Confidential,'' and must comply with FTC Rule 4.9(c), 16 CFR
4.9(c).\1\
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\1\ The comment must be accompanied by an explicit request for
confidential treatment, including the factual and legal basis for
the request, and must identify the specific portions of the comment
to be withheld from the public record. The request will be granted
or denied by the Commission's General Counsel, consistent with
applicable law and the public interest. See FTC Rule 4.9(c), 16 CFR
4.9(c).
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Because paper mail addressed to the FTC is subject to delay due to
heightened security screening, please consider submitting your comments
in electronic form. Comments filed in electronic form should be
submitted by using the following weblink: (https://public.commentworks.com/ftc/transitionsoptical) and following the
instructions on the web-based form. To ensure that the Commission
considers an electronic comment, you must file it on the web-based form
at the weblink: (https://public.commentworks.com/ftc/transitionsoptical). If this Notice appears at (http://www.regulations.gov/search/index.jsp), you may also file an electronic
comment through that website. The Commission will consider all comments
that regulations.gov forwards to it. You may also visit the FTC website
at (http://www.ftc.gov/) to read the Notice and the news release
describing it.
A comment filed in paper form should include the ``Transitions
Optical, File No. 091 0062'' reference both in the text and on the
envelope, and should be mailed or delivered to the following address:
Federal Trade Commission, Office of the Secretary, Room H-135 (Annex
D), 600 Pennsylvania Avenue, NW, Washington, DC 20580. The FTC is
requesting that any comment filed in paper form be sent by courier or
overnight service, if possible, because U.S. postal mail in the
Washington area and at the Commission is subject to delay due to
heightened security precautions.
The Federal Trade Commission Act (``FTC Act'') and other laws the
Commission administers permit the collection of public comments to
consider and use in this proceeding as appropriate. The Commission will
consider all timely and responsive public comments that it receives,
whether filed in paper or electronic form. Comments received will be
available to the public on the FTC website, to the extent practicable,
at (http://www.ftc.gov/os/publiccomments.shtm). As a matter of
discretion, the Commission makes every effort to remove home contact
information for individuals from the public comments it receives before
placing those comments on the FTC website. More information, including
routine uses permitted by the Privacy Act, may be found in the FTC's
privacy policy, at (http://www.ftc.gov/ftc/privacy.shtm).
FOR FURTHER INFORMATION CONTACT: Linda M. Holleran (202-326-2267),
Bureau of Competition, 600 Pennsylvania Avenue, NW, Washington, D.C.
20580.
SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec. 2.34 the
Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that
the above-captioned consent agreement containing a consent order to
cease and desist, having been filed with and accepted, subject to final
approval, by the Commission, has been placed on the public record for a
period of thirty (30) days. The following Analysis to Aid Public
Comment describes the terms of the consent agreement, and the
allegations in the complaint. An electronic copy of the full text of
the consent agreement package can be obtained from the FTC Home Page
(for March 3, 2010), on the World Wide Web, at (http://www.ftc.gov/os/actions.shtm). A paper copy can be obtained from the FTC Public
Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW, Washington,
D.C. 20580, either in person or by calling (202) 326-2222.
Public comments are invited, and may be filed with the Commission
in either paper or electronic form. All comments should be filed as
prescribed in the ADDRESSES section above, and must be received on or
before the date specified in the DATES section.
Analysis of Agreement Containing Consent Order to Aid Public Comment
The Federal Trade Commission has accepted for public comment an
Agreement Containing Consent Order to Cease and Desist (``Agreement'')
with Transitions Optical, Inc. (``Transitions''). The Agreement seeks
to resolve charges that Transitions used exclusionary acts and
practices to maintain its monopoly power in the photochromic lens
industry in violation of Section 5 of the Federal Trade Commission Act,
15 U.S.C. Sec. 45. Photochromic lenses are corrective ophthalmic
lenses that darken when exposed to the ultraviolet light present in
sunlight, and fade back to clear when removed from the ultraviolet
light.
The proposed Complaint that accompanies the Agreement
(``Complaint'') alleges that Transitions has used its monopoly power to
impose an exclusive-dealing policy on its customers since 1999. As a
result, Transitions has foreclosed rivals from key distribution
channels and limited competition in the relevant market, leading to
higher prices, lower output, reduced innovation and diminished consumer
choice.
The Commission anticipates that the competitive issues described in
the Complaint will be resolved by accepting the proposed Order, subject
to final approval, contained in the Agreement. The Agreement has been
placed on the public record for 30 days for receipt of comments from
interested members of the public. Comments received during this period
will become part of the public record. After 30 days, the Commission
will again review the Agreement and comments received, and will decide
whether it should withdraw from the Agreement or make final the Order
contained in the Agreement.
The purpose of this Analysis to Aid Public Comment is to invite and
facilitate public comment concerning the proposed Order. It is not
intended to constitute an official interpretation of the Agreement and
proposed Order or in any way to modify their terms. The Agreement is
for settlement purposes only and does not constitute an admission by
Transitions that the law has been violated as alleged in the Complaint
or that the facts alleged in the Complaint, other than jurisdictional
facts, are true.
I. The Complaint
The Complaint makes the following allegations.
A. Industry Background
This case involves the photochromic lens industry. Consumers of
corrective ophthalmic lenses (lenses used for vision correction and
worn in eyeglasses) have the option to purchase those lenses with a
photochromic treatment, which protects eyes from harmful ultraviolet
(``UV'') light. A ``photochromic lens,'' which is a corrective
ophthalmic lens with a photochromic treatment, will darken when it is
exposed to the UV light present in sunlight, and fade back to clear
when it is removed from the UV light.
In 2008, approximately 18 to 20 percent of all corrective
ophthalmic lenses purchased in the United States were photochromic, and
photochromic lenses totaled approximately $630 million in sales at the
wholesale level. Photochromic lenses have characteristics and uses
distinct from polarized lenses (which are designed to
[[Page 10801]]
remove glare) and fixed-tint lenses (e.g., prescription sunglasses).
Transitions produces its photochromic lenses in partnership with
lens manufacturers known as ``lens casters.'' Lens casters supply the
corrective ophthalmic lenses to Transitions, and Transitions uses
proprietary methods to apply patented photochromic dyes or other
photochromic materials to the lenses. Transitions then sells the
lenses, now photochromic, back to the lens casters. These lens casters
are Transitions' only direct customers.
Lens casters, in turn, resell the photochromic lenses to wholesale
optical laboratories (``wholesale labs'') and optical retailers
(``retailers''). Wholesale labs generally sell corrective ophthalmic
lenses, including photochromic lenses, to ophthalmologists,
optometrists, and opticians (collectively known as ``eye care
practitioners'') who are not affiliated with retailers. Wholesale labs
grind the lens according to the lens prescription, fit the lens into an
eyeglass frame, and deliver the frame with the finished lens back to
the eye care practitioner. In addition to these laboratory functions, a
wholesale lab will often employ a sales force to promote specific
lenses to eye care practitioners. Photochromic lens suppliers, such as
Transitions, use wholesale labs and their sales forces to market their
lenses because wholesale labs are the most efficient means for a
photochromic lens supplier to promote and sell its products to the tens
of thousands of independent eye care practitioners prescribing
photochromic lenses to consumers.
Retailers, on the other hand, combine both eye care practitioner
and laboratory services. They employ their own eye care practitioners
who deal directly with consumers. In addition, retailers grind and fit
lenses into eyeglass frames and deliver the frame with the finished
lens to the consumer. The retail channel is generally a more efficient
means for promoting and selling photochromic lenses to consumers than
comparable efforts through the wholesale lab channel because a single
sales effort to a large retailer can influence the prescribing behavior
of hundreds of eye care practitioners. Retailers range from large
national retail chains to smaller, regional ones.
This industry structure is reflected in the diagram below.
B. Transitions' Monopoly Power
Transitions has monopoly power in the relevant market for the
development, manufacture and sale of photochromic treatments for
corrective ophthalmic lenses in the United States. Transitions has
garnered a persistently high share of at least 80 percent of this
market over the past five years, and over 85 percent in 2008. The
photochromic lens industry has high barriers to entry, which include
significant product development costs and capital requirements,
substantial intellectual property rights, regulatory requirements, and
Transitions' anticompetitive and exclusionary conduct. Direct evidence
of Transitions' ability to exclude competitors and to control prices
confirms Transitions' monopoly power.
[GRAPHIC] [TIFF OMITTED] TN09MR10.015
C. Transitions' Conduct
Transitions has maintained its dominance, in significant part, by
implementing exclusive agreements and other exclusionary policies at
nearly every level of the photochromic lens distribution chain.
1. Exclusionary Practices with Direct Customers (Lens Casters)
In 1999, Corning Inc. introduced a new plastic photochromic lens,
Sunsensors[reg], which was a direct challenge to Transitions.
Transitions responded to this competitive threat by terminating the
first lens caster that began selling the new SunSensors[reg] lens,
Signet Armorlite, Inc. (``Signet''), and by adopting a general policy
not to deal with lens casters that sold or promoted a competing
photochromic lens. Transitions furthered its anticompetitive and
exclusionary efforts by, among other things: (i) entering into
exclusive agreements with certain lens casters; (ii) announcing to the
industry its policy of dealing only with lens casters that sold its
lenses on an exclusive basis; (iii) threatening to terminate lens
casters that did not want to sell its lenses on an exclusive basis; and
(iv) terminating a second lens caster, Vision-Ease Lens (``Vision-
Ease''), that developed a photochromic treatment, LifeRx[reg], to apply
to its own ophthalmic lenses. Because of Transitions' course of
conduct, even lens casters that have not signed exclusive agreements
have a clear understanding that they cannot sell or promote a competing
photochromic lens without being terminated by Transitions.
Transitions' exclusive policy is coercive to lens casters and acts
as a powerful deterrent against selling a competing photochromic
treatment because Transitions is such a large part of the photochromic
lens market. Losing the sales generated by Transitions' photochromic
lenses can jeopardize up to 40 percent of a lens caster's overall
profit. Additionally, losing the ability to sell Transitions'
photochromic lenses can endanger a lens caster's sales of clear lenses
because many retailers and wholesale labs (and their eye care
practitioner customers) prefer to buy both clear and photochromic
versions of the same lens.
[[Page 10802]]
For all these reasons, Transitions has succeeded in foreclosing
competitors from dealing with lens casters collectively accounting for
over 85 percent of photochromic lens sales in the United States. These
lens casters deal with Transitions on an exclusive basis and will not
do business with any other suppliers of photochromic treatments.
2. Exclusionary Practices with Indirect Customers (Retailers and
Wholesale Labs)
In an effort to shut out its rivals, Transitions also directed its
exclusionary practices at its indirect customers: wholesale labs and
retailers. In 2005, in order to mitigate the new competitive threat
posed by Vision-Ease's introduction of LifeRx[reg], Transitions began
an exclusionary agreement campaign with major retailers. Transitions
induced over 50 retailers, including many of the largest chains, with
up-front payments and/or rebates to enter into long term exclusive
agreements that were difficult to terminate.
Transitions also has entered into over 100 agreements with
wholesale labs that require the wholesale labs to promote Transitions'
lenses as their ``preferred'' photochromic lens and to withhold normal
sales efforts for competing photochromic lenses in exchange for rebates
or other items of pecuniary value. Further, at least 50 percent of all
wholesale labs are owned by lens casters that sell only Transitions'
lenses. Because these lens casters generally use their wholesale labs
to promote and sell primarily their own brand of lenses, this further
impairs competitors' access to wholesale labs.
Additionally, Transitions' agreements with retailers and wholesale
labs generally provide a discount only if the customer purchases all or
almost all of its photochromic lens needs from Transitions. Because no
other supplier has a photochromic treatment that applies to a full line
of ophthalmic lenses, Transitions' discount structure impairs the
ability of rivals to compete for sales to these customers. It also
erects a significant entry barrier by limiting the ability of a rival
to enter the market with a new photochromic treatment that applies to
less than a full line of ophthalmic lenses.
Transitions' exclusionary practices with retailers and wholesale
labs foreclose rivals, in whole or in part, from a substantial share -
as much as 40 percent or more - of the retailer and wholesale lab
distribution channels.
D. Competitive Impact of Transitions' Conduct
Transitions' course of conduct harms competition by marginalizing
existing competitors and by deterring new entry. Faced with the threat
of termination by Transitions, no major lens caster operating in the
United States has been willing to carry the plastic SunSensors[reg]
lens since Transitions terminated Signet. Without access to effective
distribution, Corning has been unable to pose a competitive threat to
Transitions' monopoly, and has had little incentive to invest in
research and development to improve its product. Further, some lens
casters would likely develop and/or sell competing photochromic lenses,
but Transitions' exclusive dealing - particularly its ``all or
nothing'' ultimatum to lens casters - effectively deters new entrants.
Transitions' conduct at the wholesale lab and retailer levels also
has harmed competition. For example, Transitions deprived Vision-Ease
of access to many large retailers (one of the most efficient channels
for distributing photochromic lenses to consumers), which blunted the
force of its entry into the market and diminished its ability to
constrain Transitions' exercise of monopoly power. Potential entrants
observed Transitions' exclusionary campaign against Vision-Ease and
have been deterred from entering the market.
Further, Transitions' exclusionary policies at all levels of the
distribution chain deter potential competitors from entering the market
on an incremental basis. Transitions' ``all or nothing'' policy with
lens casters deters them from purchasing or developing a competing
photochromic treatment that can be applied to less than a full line of
ophthalmic lenses because the lens caster is unlikely to be able to
recoup the substantial profits it would have made from the sale of the
full line of Transitions' products. Similarly, the structure of
Transitions' discounts to retailers and wholesale labs - which are
generally conditioned on the customer's purchase of all or almost all
of Transitions' products - places competitors with less than a full
line of photochromic lenses at a disadvantage when competing for this
business.
Transitions' exclusionary practices have likely increased prices
and reduced output. For example, because it does not face effective
competition, Transitions has been able to ignore consumer demand and
refuse to supply its low-priced, private label photochromic lens in the
U.S. market, even though Transitions offers this product in other
markets.
Transitions' conduct has also harmed consumers by depriving rivals
of the incentive to innovate and to develop competing photochromic
lenses. If faced with more competition, Transitions would also likely
have a greater incentive to invest additional resources in research and
development.
There are no procompetitive efficiencies that justify Transitions'
conduct or outweigh its substantial anticompetitive effects.
II. Legal Analysis
Exclusive dealing by a monopolist is condemned under Section 2 of
the Sherman Act, 15 U.S.C. Sec. 2, when the challenged conduct
significantly impairs the ability of rivals to compete with the
monopolist and thus to constrain its exercise of monopoly power.\2\
Agreements that foreclose key distribution channels are often found to
have this proscribed effect and are deemed illegal.\3\
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\2\ See, e.g., Aspen Skiing Co. v. Aspen Highlands Skiing Corp.,
472 U.S. 585, 605 & n.32 (1985) (exclusionary conduct ``tends to
impair the opportunities of rivals'' but ``either does not further
competition on the merits or does so in an unnecessarily restrictive
way'') (citations omitted); Lorain Journal Co. v. United States, 342
U.S. 143, 151-54 (1951) (condemning newspaper's refusal to deal with
customers that also advertised on rival radio station because it
harmed the radio station's ability to compete);United States v.
Microsoft Corp., 253 F.3d 34, 68-71 (D.C. Cir. 2001) (condemning
exclusive agreements because they prevented rivals from ``pos[ing] a
real threat to Microsoft's monopoly''); United States v. Dentsply
Int'l, Inc., 399 F.3d 181, 191 (3d Cir. 2005) (``test is not total
foreclosure but whether the challenged practices bar a substantial
number of rivals or severely restrict the market's ambit'');
LePage's, Inc. v. 3M, 324 F.3d 141, 159-60 (3d Cir. 2003) (same).
\3\ See, e.g., Microsoft, 253 F.3d at 64 (condemning exclusive
agreements that foreclosed rivals from ``cost-efficient''
distribution channels); LePage's, 324 F.3d at 159-60 (finding
``exclusionary conduct cut LePage's off from key retail
pipelines''). See also Richard A. Posner, ANTITRUST LAW 229 (2d ed.
2002) (noting that exclusive dealing may ``increase the scale
necessary for new entry, and . . . increase the time required for
entry and hence the opportunity for monopoly pricing'').
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The factual allegations in the Complaint are consistent with a
finding of monopoly power and competitive harm. Transitions' policy of
requiring exclusivity from its lens caster customers has foreclosed its
rivals from over 85 percent of available sales opportunities at this
level of the distribution chain. This foreclosure is particularly
significant because nearly all photochromic lenses are first sold by
lens casters - attempts to fabricate photochromic lenses at the
wholesale lab or retailer level have largely been abandoned as
uneconomical. The competitive impact of this exclusive dealing with
lens casters is amplified by Transitions' exclusionary practices with
retailers and wholesale labs, which
[[Page 10803]]
further foreclose rivals, in whole or in part, from as much as 40
percent or more of these downstream distribution channels. Transitions'
exclusionary conduct has thus likely caused higher prices, lower
output, and reduced innovation and consumer choice.
A monopolist may rebut a such a showing of competitive harm by
demonstrating that the challenged conduct is reasonably necessary to
achieve a procompetitive benefit.\4\ Any proffered justification, if
proven, must be balanced against the harm caused by the challenged
conduct.\5\
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\4\ E.g., Microsoft, 253 F.3d at 59.
\5\ Id.
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No procompetitive efficiencies justify Transitions' exclusionary
and anticompetitive conduct. Transitions cannot show that the exclusive
arrangements were reasonably necessary to achieve a procompetitive
benefit, such as protecting Transitions' intellectual property or
technical know-how, or preventing interbrand free-riding.\6\
Transitions does not transfer substantial intellectual property or
technical know-how to its customers, and even if it did, any such
transfer would likely be protected by existing confidentiality
agreements.
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\6\ ``Interbrand free-riding'' occurs when a manufacturer
provides services, training, or other incentives in the promotion of
its products for which it cannot easily charge its dealer, and that
dealer ``free-rides'' on these demand-generating services by
substituting a cheaper, more profitable product made by another
manufacturer that does not invest in comparable services. See
generally Howard P. Marvel, Exclusive Dealing, 25 J.L. & Econ. 1, 8
(1982).
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A concern about interbrand free-riding also does not justify the
substantial anticompetitive effects found here. The vast majority of
Transitions' promotional efforts are brand specific, reducing the
significance of any free-riding concern.\7\ While Transitions'
marketing efforts may generate some consumer interest in the product
category as a whole - and not just in Transitions' own products - this
is a part of the natural competitive process. This type of consumer
response does not raise a free-riding concern sufficient to justify the
substantial anticompetitive effects found here.\8\
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\7\ See United States v. Dentsply Int'l, Inc., 277 F. Supp. 2d
387, 445 (D. Del. 2003), aff'd in rel. part, 399 F.3d at 196-97;
Marvel, Exclusive Dealing, 25 J.L. & Econ. at 8 (explaining that an
interbrand free-riding justification ``does not apply if the
promotional investment is purely brand specific. In such cases, the
dealer will not be in a position to switch customers from brand to
brand.'').
\8\ See In re Polygram, 136 F.T.C. 310, 361-62 (2003), aff'd,
416 F.3d 29, 37-38 (D.C. Cir. 2005).
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III. The Order
The proposed Order remedies Transitions' anticompetitive and
exclusionary conduct and imposes certain fencing-in requirements that
are designed to prevent de facto exclusive dealing.\9\ Paragraph II of
the Order addresses the core of Transitions' exclusionary conduct and
seeks to lower entry barriers and to restore competition. Paragraph III
requires Transitions to implement an antitrust compliance program,
which includes providing notice of this Order to Transitions'
customers. Paragraphs IV-VI impose reporting and other compliance
requirements. The Order expires in 20 years unless otherwise indicated.
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\9\ We use the term ``de facto exclusive dealing'' to refer to
practices that significantly deter a customer from purchasing or
selling a competing photochromic lens.
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Paragraph II.A prohibits Transitions from adopting or implementing
any agreement or policy that results in ``exclusivity'' with lens
casters, or its ``Direct Customers.'' ``Exclusivity'' is defined in the
Order to include any requirement that a customer limit or refrain from
dealing with a competing photochromic lens, as well as any requirement
that a customer give Transitions' products more favorable treatment as
compared to a competitor's products.
Paragraph II.B allows Transitions to enter into exclusive
agreements with retailers and wholesale labs (``Indirect Customers''),
provided certain safeguards are met. Specifically, any exclusive
agreements with Indirect Customers must: i) be terminable without
cause, and without penalty, on 30 days written notice; ii) be available
on a partially exclusive basis, if requested by the customer; and iii)
not offer flat payments of monies in exchange for exclusivity. These
provisions, along with Paragraph II.E, which prohibits Transitions from
bundling discounts, are designed to enable a competitor or entrant to
compete for a customer's business, even if it does not offer a
photochromic treatment that applies to a full line of ophthalmic
lenses. Creating conditions conducive to effective entry on an
incremental basis is likely to hasten new entry and to restore
competition.
Under Paragraph II.C, Transitions may not limit its customers from
communicating or discussing a competing photochromic lens with
consumers and others. This Paragraph also requires Transitions to allow
a lens caster or another customer that sells Transitions' photochromic
treatment on a particular brand of lens to sell a competitors'
photochromic treatment on the same brand.
Paragraph II.D has two provisions designed to prevent de facto
exclusive dealing through pricing policies. First, Transitions cannot
offer market share discounts, i.e., discounts based on the percentage
of a customer's sales of Transitions' lenses as a percentage of all
photochromic lens sales. Second, Transitions cannot offer discounts
that are applied retroactively once a customer reaches a specified
threshold. For example, Transitions may provide a discount on sales
beyond 1000 units but it may not lower the price of the first 999 units
if and when the customer buys the 1000\th\ unit. The provisions in
Paragraph II.D, along with Paragraph II.E, will be in effect for 10
years.
Notwithstanding any provision of the Order, Paragraph II.G
explicitly allows Transitions to provide volume discounts that reflect
certain cost differences, and to offer discounts to meet competition.
It also allows Transitions to require that any monies it provides to
customers be used solely for the manufacture, promotion or sale of
Transitions lenses.
Finally, Paragraph II.F prohibits Transitions from retaliating
against a customer that purchases or sells Transitions lenses on a non-
exclusive basis.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2010-4979 Filed 3-8-10; 7:23 am]
BILLING CODE 6750-01-S