Consumers lose under Florida’s tone deaf licensing for hearing aid sales

August 17, 2018 | By TIMOTHY SNOWBALL

Originally published by The Hill, August 17, 2018.

Can a state require buyers of hearing aids to undergo time consuming and unnecessary tests—even testing that the U.S. Food and Drug Administration (FDA) has said provides no meaningful benefit—before being sold a hearing aid? That is the question asked by hearing care entrepreneur Dan Taylor in a federal constitutional lawsuit that was heard in an Orlando, Florida, courtroom this week.

Working from a small shop in downtown Melbourne, Taylor has sold hearing aids for 30 years. But Florida says no one but licensed “hearing aid specialists” can sell a hearing aid, and the licensed hearing aid sellers are required by law to perform antiquated hearing exams—tests that may have been state-of-the-art in the 1970s when the law was passed, but are, in many cases, unnecessary today.

Modern hearing aids contain sophisticated software that allows almost anyone to effectively select the right hearing aid, and at lower cost, using common tools such as personal computers and smartphones.Yet, Taylor and all hearing aid sellers face ruinous fines, or even jail time, if they don’t perform the unneeded tests. In short, Florida’s restrictions on hearing aid sellers and sales don’t benefit the public; they only stifle efficient or innovative hearing care and make it more difficult for consumers to access lower-cost services that can benefit them.

In protest, Taylor gave up his Florida Hearing Aid Specialists license last year and prepared to shutter his business. Then he got mad and filed a lawsuit in federal court in Florida, challenging the state’s burdensome regulations.

He is not seeking money; just a declaration that the state’s rules contradict federal regulations governing the sale of hearing aids and violate his right to earn an honest living free of unreasonable regulation. He is represented for free by Pacific Legal Foundation, which has brought successful constitutional lawsuits across the country challenging overreaching occupational licensing laws.

When Florida’s hearing aid sales requirements were established, hearing aid technology was far different than what exists today. Taylor’s case argues that they no longer are justified: when a law becomes so out of step with the times, it serves no legitimate purpose and infringes on the constitutional freedoms of consumers and entrepreneurs to work and trade.

Moreover, Florida’s hearing aid rules are at odds with federal law.

Congress has given the FDA authority over hearing aids. The agency governs the devices, including the conditions imposed by states on their sale. Federal regulations do not require a seller of hearing aids to have a license at all—and prohibit states from enacting licensing schemes that impose conditions on the sale of hearing aids that are “different from, or in addition to” the federal rules. That is exactly what Florida’s onerous sales procedures do.

Under the Supremacy Clause of the U.S. Constitution, federal law is the “supreme law of the land,” and states are prohibited from enacting contrary laws. The federal government has studied hearing aids such as those Taylor sells and determined that they pose no meaningful health or safety risks. Federal regulations lightly regulate their sale and supersede conflicting state laws.

Hearing loss affects an estimated 30 million people across America. Yet many of those people lack access to hearing aids because onerous and outdated state regulations limit who can sell them and how they are sold. Based upon the widespread need for hearing aids, it is likely that a win for Dan Taylor in this case means that someday you, or someone you know or love, will benefit from more competition, greater access and lower costs in hearing care.

Timothy Snowball is an attorney at Pacific Legal Foundation, which litigates to enforce the Constitution’s guarantee of individual liberty.