Panel Asked to Revive Challenge to Florida Hearing Aid Regulations

ATLANTA (CN) — A former Florida hearing aid specialist asked an 11th Circuit panel Wednesday to reinstate his lawsuit challenging rules regulating the sale of hearing aids in the Sunshine State, the nation’s largest market for the devices.

Robert Taylor, who worked as a licensed Florida hearing aid specialist for 30 years until he declined to renew his license in 2017, sued the Florida Board of Hearing Aid Specialists and the secretary of the Florida Board of Health, claiming the state’s “onerous, outdated, and unconstitutional regulations” unfairly limit access to hearing aids and unnecessarily increase costs.

The Elbert P. Tuttle U.S. Courthouse in Atlanta, home of the 11th Circuit Court of Appeals. (Photo via Wikipedia Commons)

In his complaint, Taylor called the state’s procedural and equipment mandates “antiquated” and alleged that state regulations imposing presale procedures on licensed hearing aid sellers, penalizing unlicensed sellers and banning the sale of hearing aids through the mail are expressly preempted by federal law.

A federal judge in Orlando dismissed Taylor’s case, finding he lacked standing to challenge the regulations since he is no longer a licensed hearing aid seller.

U.S. District Judge Gregory Presnell also ruled that Florida’s law penalizing the unlicensed sale of hearing aids is not preempted by federal regulations, which do not require hearing aid sellers to be licensed.

Arguing Wednesday morning on Taylor’s behalf in Atlanta, Anastasia Boden of the Pacific Legal Foundation told a three-judge 11th Circuit panel that the Florida statute, which also prohibits the sale of hearing aids without presale audiometric testing, is preempted by the 1976 medical device amendments to the federal Food, Drug and Cosmetic Act.

Boden urged the panel to reverse the lower court’s dismissal.

Arguing for the state, Florida Deputy Solicitor General Kevin Golembiewski told the panel that even if it overturns the district court’s finding that Taylor lacked standing to file his complaint, Taylor’s challenge fails on the merits.

“If the court does get to the merits, it should send [the case] back to the district court with direction to dismiss with prejudice,” he said.

U.S. Circuit Judges Stanley Marcus, R. Lanier Anderson III and David Ebel, sitting by designation from the 10th Circuit, sat on Wednesday’s panel. They were appointed by Bill Clinton, Jimmy Carter and Ronald Reagan, respectively.

The judges did not indicate when they will reach a decision in the case.

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