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In re I/M/O Adoption of Amendments to N.J.A.C. 13:33-7.1(g) by the New Jersey State Board of Ophthalmic Dispensers and Ophthalmic Technicians

July 22, 2010

I/M/O ADOPTION OF AMENDMENTS TO N.J.A.C. 13:33-7.1(G) BY THE NEW JERSEY STATE BOARD OF OPHTHALMIC DISPENSERS AND OPHTHALMIC TECHNICIANS.


On appeal from the New Jersey State Board of Ophthalmic Dispensers and Ophthalmic Technicians.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 5, 2009

Before Judges Stern, Graves and J.N. Harris.

The National Association of Optometrists and Opticians (the Association), a nationwide organization representing the retail optical industry, challenges the validity of an amendment to N.J.A.C. 13:33-7.1(g) adopted on March 17, 2007, by the New Jersey Board of Ophthalmic Dispensers and Ophthalmic Technicians (the Board).*fn1 The amendment became effective on March 17, 2008, and requires all advertisements by ophthalmic dispensers to include the name and the New Jersey license number for at least one ophthalmic dispenser working at a business location, together with the business address and telephone number.

The Association claims the amendment is invalid because it "directly contravenes the Board's enabling act" and is "arbitrary and capricious" because it does not accomplish the Board's stated goals. After reviewing the record and applicable law in light of the arguments advanced on appeal, we affirm.

The Board was created by the Ophthalmic Dispensing Act, N.J.S.A. 52:17B-41.1 to -43 (the Act). The purpose of the Act is "to protect the public health, welfare and safety by providing for the regulation of the sale, dispensing and supplying of all ophthalmic appliances, eyeglasses, or ophthalmic lenses to the ultimate wearer or consumer in this State." N.J.S.A. 52:17B-41.1. Under N.J.S.A. 52:17B-41.13, the Board is authorized to adopt "reasonable rules and regulations" that are "necessary to give full force and effect to the provisions of [the Act] and to regulate the practice of ophthalmic dispensers and ophthalmic technicians," so long as "such rules and regulations are not inconsistent with the provisions of [the Act.]" The Board's rules and regulations are embodied in Title 13, Chapter 33 of the New Jersey Administrative Code.

On June 4, 2007, the Board proposed the following amendment to N.J.A.C. 13:33-7.1(g), a regulation concerning advertisements by ophthalmic dispensers:

All advertisements shall include, for at least one ophthalmic dispenser working at the business:

1. The ophthalmic dispenser's first name, or first initial or the first name, and the full last name;

2. The ophthalmic dispenser's business address and telephone number; and

3. The terms "N.J. License #" followed by the ophthalmic dispenser's license number.

Only the requirements in paragraphs one and three were new proposals. The proposed amendment was published in the New Jersey Register, together with the statement required by N.J.S.A. 52:14B-4(a)(2), on June 4, 2007. 39 N.J.R. 2197-98. The Board explained that the purpose of the proposed amendment was to protect consumers:

The Board proposes to amend N.J.A.C. 13:33-7.1 to require that advertisements for ophthalmic dispensing services include the name and New Jersey license number of at least one licensed ophthalmic dispenser working at the business. The Board has seen many advertisements for ophthalmic services that did not indicate the identity of the licensed ophthalmic dispenser who will provide services. The Board believes that, in order to protect consumers, advertisements must identify the licensed ophthalmic dispenser so that ...


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