Congress may be taking up legislation regulating the sale of hearing aids this week. The Over-the-Counter Hearing Aid Act of 2017, sponsored by Rep. Marsha Blackburn (R-TN) in the House and Sen. Susan Collins (R-ME) and co-sponsored by Sen. Elizabeth Warren (D-MA), is expected to get considered before the House Energy and Commerce Committee. The legislation is supposed to allow the sale of some types of hearing aids over the counter, allowing consumers to purchase them without a prescription from audologist.
Congress can often use its authority to regulate in a way that expands competition and choices on behalf of consumers or it can, as it has far too often, enact legislation that restricts consumers choices against the best interests of consumers. For example, Congress legislated in the interests of consumers in 2004, enacting the Fairness in Contact Lens Consumers Act (FCLCA), promoting customer choice and competition in the sale of contract lens products. At times, Congress has done just the opposite, such as passing Dodd-Frank in 2010, that has resulted in fewer choices in financial services for consumers.
The hearing aid bill has some support among advocates of deregulation, such as the Niskanen Center, that argues “Under the status quo, state-level licensing boards grant audiologists hearing aid dispensing privileges, requiring consumers to pay additional fees for an evaluation, to have the hearing aid fitted, and restricting competitive entry into the national market. What’s more, audiologists often have exclusive contracts with manufacturers to sell just a handful of hearing aid models, slowing the pace of innovation.”
The Niskanen Center cites the support of the Consumer Technlogy Assocation (CTA) for the hearing aid bill because it will open the market for innovative new hearing aid products, allowing more consumer choices such as what happened with direct-to-consumer sales of eyeglasses and contact lenses.
The legislation has industry support, as indicated in a letter to Sen. Warren from Kristen Liu, director of advocacy and accessibility for Doppler Labs, a maker of PSAP hearing products and member company of CTA, who wrote, “Your proposed legislation for an over-the-counter hearing aid category could open the floodgates and encourage innovation in this space from new entrants, particularly the consumer electronics industry. With their resources, talent, and know how, companies like ours could help innovate hearing technologies and bring new products to market much more quickly.”
But the co-sponsorship of Sen. Warren, not known as a support of industry deregulation, raises questions from some advocates of deregulation. The concern is whether support by Warren signals the legislation could become a big government reglatory scheme affecting the sales of personal sound amplification devices (PSAPs) currently sold at retailers like Best Buy. PSAPs are devices sold to consumers, without need prescription from an audiologist like that of medical hearing aids and they are not subject to FDA regulation because they are not medically prescribed hearing aids. The very real concern is Congress subjecting those kinds of devices to FDA type medical regulation, limiting consumer choice to a variety of hearing-related products that are currently not regulated. Subjecting PSAPs and similar products would limit consumer choice and lock states out of any role in the process. Sen. Warren would push legislation regulating in this manner and then declare PSAPs to be over-the-counter devices, as if this were a new innovation.
A compromise is in order hearing. Congress can find a middle ground that would best serve the interest of consumers. The Chairman of the House Commerce Committee should push for a compromise that would make sure PSAPs remain unregulated by dropping the word “moderate” from the legislation making it applicable only to mild hearing loss. The Hearing Aid Bill be part of the larger legislation, reauthorizing the FDA to collect fees from drug and device manufacturers, that Congress must pass.
Americans elected this Congress, and its Republican majority, to legislate in the interest of consumers. The GOP leadership can do this, in the instance of the hearing aid bill, and make sure consumers can still purchase PSAPs while also deregulating the sale of medical hearing aids. Congress can and should do this, and make sure this legislation isn’t a Trojan Horse scheme to regulate hearing devices currently not subject to the heavy hand of government.