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Legal Blotter
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III'" ---------Robert F. Steeves, director of APhA's legal division
professional solicitation Pharmacists, their professional societies and regulatory boards governing the practice of pharmacy are discussing now, or have discussed at some time, advertising of professional services, soliciting of professional practice or promoting of given drugs and other articles. To date, there is no judicially accepted framework covering such practices for the profession of pharmacy though there are statutes and regulations on the books in many of our states. Hopefully, present approaches are valid but we have yet to see what view a court will take when the issue is raised. Fundamentally, two approaches have been used. In one the state pharmacy board can promulgate rules and regulations governing the actions of pharmacists and pharmacies. This approach looks to the regulation of the profession and the manner in which it is practiced. Ordinarily the statute or regulation provides that a pharmacy premise permit or a pharmacist license may be revoked or suspended. The second approach involves the commodity or article itself. Thus the statute or regulation may be directed at narcotics, dangerous drugs as defined in a given statute, contraceptives and the like and it may apply to all persons. The penalty is usually a fine. The starting point here is the First Amendment to the Constitution of the United States which provides that "Congress shall make no law ... abridging the freedom of speech. or of the press." While the amendment speaks only of Congress, the same principle is applicable to state legislatures through the provisions of the 14th Amendment. However, freedom of speech and liberty of the press are not absolute or unqualified rights; they are subordinate to the greater rights of general public interest and are subject to reasonable restrictions when necessary to safeguard that interest. To us pharmacists, this means that freedom of speech is subject to reasonable rules governing the practice of our profession and the distribution of drugs. When the rights of free speech and liberty of the press come into conflict with a constitutional exercise of legislative powers, the validity of the legisla502
tion or regulation will depend on the balance of public interest factors involved. As a general rule a limitation on the right to advertise constitutes a taking of property without due process of law. However, standard legal references point out that "in the case of the professions, the right to restrict advertising is broad and clear." Thus, attorneys cannot "solicit professional employment by circulars, advertisements, through touters" or other means under the 27th Canon of Professional Ethics. This has been sustained against a ttack in the courts with the comment that its basis is that attorneys practice a profession and do not conduct a trade. A California court went on to point out-
tion, to aid in maintaining a high standard of professional ethics, to eliminate "bait" advertising as a means of competition and to protect the public from deception and imposition. With pharmacy the judicial picture follows a different pattern. In 1962 the Florida Supreme Court struck down a pharmacy board regulation prohibiting the advertisement of names and prices of prescription drugs. The basis of the court's decision was that the regulation was an unjustifiable attempt to prohibit price competition in the prescription drug business without any reasonable relation to public safety, health, morals or general welfare. The . Florida court concluded its discussion of the point by stating-
the basic ideal of that profession [law] is to render servtce and secure justice for those seeking its aid. It is not a business using bargain-counter methods to reap large profits for those who cond uct it.
There is simply no reasonable justification for such an administrative intrusion on private rights when the regulation is so completely lacking in public benefit.
Recently, the American Optometric Association submitted a summary of various points covered in optometry statutes to a Congressional committee which noted that 29 states had laws prohibiting advertising by optometrists and 35 states had laws specifically prohibiting price advertising. A number of court cases uphold the validity of these laws including aNew Jersey case which says the state may go so far as to "ban practices and procedures tending to unseemly competition and lowering of standards." Legislation or regulations promulgated by administrative boards under proper statutory authority prohibiting dentists from advertising prices for professional services have been upheld as a valid exercise of the police power. An Oregon court, in upholding such legislation, observed that a dentist is not dealing in commodities but is a member of a learned profession to which the rules of the market place do not apply. As regards physicians, the courts have upheld advertising limitations and have stated that the basis of the statutes or regulations is to protect the profession against commercial exploita-
Journal of the AM ER ICAN PHARMACEUTICAL ASSOCIATION
In the current legislative session the Florida legislature passed a measure which prohibits a pharmacist, owner or employee of a "retail drug establishment" from promoting or advertising the sale of any narcotics, central nervous system stimulants, tranqui1izers, barbiturates and other hypnotic and somnifacient drugs. This is a statutory prohibition and, while a regulation is no less the law, the statute is a specific and considered act of the legislature which may carry greater weight. Oklahoma has a statute prohibiting "price advertising of any service, commodity or material which requires a prior examination and/or prescription by and/ or from a person licensed to practice a healing art" to determine the proper service, commodity or material to be given to the user. This clearly encompasses all prescription-legend drugs and devices. A recent enactment in West Virginia gives the state pharmacy board the authority to withhold, revoke or suspend the license of any pharmacist who solicits professional practice directly or indirectly by promoting professional ability, experience, integrity or professional qualifications. This is an (continued on page 507)
III'" ---------Robert F. Steeves, director of APhA's legal division
professional solicitation Pharmacists, their professional societies and regulatory boards governing the practice of pharmacy are discussing now, or have discussed at some time, advertising of professional services, soliciting of professional practice or promoting of given drugs and other articles. To date, there is no judicially accepted framework covering such practices for the profession of pharmacy though there are statutes and regulations on the books in many of our states. Hopefully, present approaches are valid but we have yet to see what view a court will take when the issue is raised. Fundamentally, two approaches have been used. In one the state pharmacy board can promulgate rules and regulations governing the actions of pharmacists and pharmacies. This approach looks to the regulation of the profession and the manner in which it is practiced. Ordinarily the statute or regulation provides that a pharmacy premise permit or a pharmacist license may be revoked or suspended. The second approach involves the commodity or article itself. Thus the statute or regulation may be directed at narcotics, dangerous drugs as defined in a given statute, contraceptives and the like and it may apply to all persons. The penalty is usually a fine. The starting point here is the First Amendment to the Constitution of the United States which provides that "Congress shall make no law ... abridging the freedom of speech. or of the press." While the amendment speaks only of Congress, the same principle is applicable to state legislatures through the provisions of the 14th Amendment. However, freedom of speech and liberty of the press are not absolute or unqualified rights; they are subordinate to the greater rights of general public interest and are subject to reasonable restrictions when necessary to safeguard that interest. To us pharmacists, this means that freedom of speech is subject to reasonable rules governing the practice of our profession and the distribution of drugs. When the rights of free speech and liberty of the press come into conflict with a constitutional exercise of legislative powers, the validity of the legisla502
tion or regulation will depend on the balance of public interest factors involved. As a general rule a limitation on the right to advertise constitutes a taking of property without due process of law. However, standard legal references point out that "in the case of the professions, the right to restrict advertising is broad and clear." Thus, attorneys cannot "solicit professional employment by circulars, advertisements, through touters" or other means under the 27th Canon of Professional Ethics. This has been sustained against a ttack in the courts with the comment that its basis is that attorneys practice a profession and do not conduct a trade. A California court went on to point out-
tion, to aid in maintaining a high standard of professional ethics, to eliminate "bait" advertising as a means of competition and to protect the public from deception and imposition. With pharmacy the judicial picture follows a different pattern. In 1962 the Florida Supreme Court struck down a pharmacy board regulation prohibiting the advertisement of names and prices of prescription drugs. The basis of the court's decision was that the regulation was an unjustifiable attempt to prohibit price competition in the prescription drug business without any reasonable relation to public safety, health, morals or general welfare. The . Florida court concluded its discussion of the point by stating-
the basic ideal of that profession [law] is to render servtce and secure justice for those seeking its aid. It is not a business using bargain-counter methods to reap large profits for those who cond uct it.
There is simply no reasonable justification for such an administrative intrusion on private rights when the regulation is so completely lacking in public benefit.
Recently, the American Optometric Association submitted a summary of various points covered in optometry statutes to a Congressional committee which noted that 29 states had laws prohibiting advertising by optometrists and 35 states had laws specifically prohibiting price advertising. A number of court cases uphold the validity of these laws including aNew Jersey case which says the state may go so far as to "ban practices and procedures tending to unseemly competition and lowering of standards." Legislation or regulations promulgated by administrative boards under proper statutory authority prohibiting dentists from advertising prices for professional services have been upheld as a valid exercise of the police power. An Oregon court, in upholding such legislation, observed that a dentist is not dealing in commodities but is a member of a learned profession to which the rules of the market place do not apply. As regards physicians, the courts have upheld advertising limitations and have stated that the basis of the statutes or regulations is to protect the profession against commercial exploita-
Journal of the AM ER ICAN PHARMACEUTICAL ASSOCIATION
In the current legislative session the Florida legislature passed a measure which prohibits a pharmacist, owner or employee of a "retail drug establishment" from promoting or advertising the sale of any narcotics, central nervous system stimulants, tranqui1izers, barbiturates and other hypnotic and somnifacient drugs. This is a statutory prohibition and, while a regulation is no less the law, the statute is a specific and considered act of the legislature which may carry greater weight. Oklahoma has a statute prohibiting "price advertising of any service, commodity or material which requires a prior examination and/or prescription by and/ or from a person licensed to practice a healing art" to determine the proper service, commodity or material to be given to the user. This clearly encompasses all prescription-legend drugs and devices. A recent enactment in West Virginia gives the state pharmacy board the authority to withhold, revoke or suspend the license of any pharmacist who solicits professional practice directly or indirectly by promoting professional ability, experience, integrity or professional qualifications. This is an (continued on page 507)