Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc

• Citation: 48 L.Ed.2d 346,425 U.S. 748,96 S.Ct. 1817
• Decision Date: 24 May 1976
• Docket Number: No. 74-895,74-895
• Parties: VIRGINIA STATE BOARD OF PHARMACY et al., Appellants, v. VIRGINIA CITIZENS CONSUMER COUNCIL, INC., et al
• Court: United States Supreme Court

425 U.S. 748

96 S.Ct. 1817

48 L.Ed.2d 346

VIRGINIA STATE BOARD OF PHARMACY et al., Appellants,

v VIRGINIA CITIZENS CONSUMER COUNCIL, INC., et al.

No. 74-895.

Argued Nov. 11, 1975.

Decided May 24, 1976.

Syllabus

Appellees, as consumers of prescription drugs, brought suit against the Virginia State Board of Pharmacy and its individual members, appellants herein, challenging the validity under the First and Fourteenth Amendments of a Virginia statute declaring it unprofessional conduct for a licensed pharmacist to advertise the prices of prescription drugs. A three-judge District Court declared the statute void and enjoined appellants from enforcing it. Held:

1. Any First Amendment protection enjoyed by advertisers seeking to disseminate prescription drug price information is also enjoyed, and thus may be asserted, by appellees as recipients of such information. Pp. 756-757.

2. "Commercial speech" is not wholly outside the protection of the First and Fourteenth Amendments, and the Virginia statute is therefore invalid. Pp. 761-773.

(a) That the advertiser's interest in a commercial advertisement is purely economic does not disqualify him from protection under the First and Fourteenth Amendments. Both the individual consumer and society in general may have strong interests in the free flow of commercial information. Pp. 762-765.

(b) The ban on advertising prescription drug prices cannot be justified on the basis of the State's interest in maintaining the professionalism of its licensed pharmacists; the State is free to require whatever professional standards it wishes of its pharmacists, and may subsidize them or protect them from competition in other ways, but it may not do so by keeping the public in ignorance of the lawful terms that competing pharmacists are offering. Pp. 766-770.

(c) Whatever may be the bounds of time, place, and manner restrictions on commercial speech, they are plainly exceeded by the Virginia statute, which singles out speech of a particular content and seeks to prevent its dissemination completely. Pp. 770-771.

(d) No claim is made that the prohibited prescription drug advertisements are false, misleading, or propose illegal transactions, and a State may not suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and its recipients. Pp. 771-773.

373 F.Supp. 683, affirmed.

Anthony F. Troy, Richmond, Va., for appellants.

Alan B. Morrison, Washington, D. C., for appellees.

Mr. Justice BLACKMUN delivered the opinion of the Court.

The plaintiff-appellees in this case attack, as violative of the First and Fourteenth Amendments,¹ that portion of § 54-524.35 of Va.Code Ann. (1974), which provides that a pharmacist licensed in Virginia is guilty of unpro- fessional conduct if he "(3) publishes, advertises or promotes, directly or indirectly, in any manner whatsoever, any amountprice, fee, premium, discount, rebate or credit terms . . . for any drugs which may be dispensed only by prescription." ² The three-judge District Court declared the quoted portion of the statute "void and of no effect," Jurisdictional Statement, App. 1, and enjoined the defendant-appellants, the Virginia State Board of Pharmacy and the individual members of that Board, from enforcing it. 373 F.Supp. 683 (E.D.Va.1974). We noted probable jurisdiction of the appeal. 420 U.S. 971, 95 S.Ct. 1389, 43 L.Ed.2d 650 (1975).

I

Since the challenged restraint is one that peculiarly concerns the licensed pharmacist in Virginia, we begin with a description of that profession as it exists under Virginia law.

The "practice of pharmacy" is statutorily declared to be "a professional practice affecting the public health, safety and welfare," and to be "subject to regulation and control in the public interest." Va.Code Ann. § 54-524.2(a) (1974).³ Indeed, the practice is subject to ex- tensive regulation aimed at preserving gh professional standards. The regulatory body is the appellant Virginia State Board of Pharmacy. The Board is broadly charged by statute with various responsibilities, including the "(m)aintenance of the quality, quantity, integrity, safety and efficacy of drugs or devices distributed, dispensed or administered." § 54-524.16(a). It also is to concern itself with "(m)aintaining the integrity of, and public confidence in, the profession and improving the delivery of quality pharmaceutical services to the citizens of Virginia." § 54-524.16(d). The Board is empowered to "make such bylaws, rules and regulations . . . as may be necessary for the lawful exercise of its powers." § 54-524.17.

The Board is also the licensing authority. It may issue a license, necessary for the practice of pharmacy in the State, only upon evidence that the applicant is "of good moral character," is a graduate in pharmacy of a school approved by the Board, and has had "a suitable period of experience (the period required not to exceed 12 months) acceptable to the Board." § 54-524.21. The applicant must pass the examination prescribed by the Board. Ibid. One approved school is the School of Pharmacy of the Medical College of Virginia, where the curriculum is for three years following two years of college. Prescribed prepharmacy courses, such as biology and chemistry, are to be taken in college, and study requirements at the school itself include courses in organic chemistry, biochemistry, comparative anatomy, physiology, and pharmacology. Students are also trained in the ethics of the profession, and there is some clinical experience in the school's hospital pharmacies and in the medical center operated by the Medical College. This is "a rigid, demanding curriculum in terms of what the pharmacy student is expected to know about drugs." ⁴

Once licensed, a pharmacist is subject to a civil monetary penalty, or to revocation or suspension of his license, if the Board finds that he "is not of good moral character," or has violated any of a number of stated professional standards (among them that he not be "negligent in the practice of pharmacy" or have engaged in "fraud or deceit upon the consumer . . . in connection with the practice of pharmacy"), or is guilty of "unprofessional conduct." § 54-524.22:1. "Unprofessional conduct" is specifically defined in § 54-524.35, n. 2, Supra, the third numbered phrase of which relates to advertising of the price for any prescription drug, and is the subject of this litigation.

Inasmuch as only a licensed pharmacist may dispense prescription drugs in Virginia, § 54-524.48,⁵ advertising or other affirmative dissemination of prescription drug price information is effectively forbidden in the State. Some pharmacies refuse even to quote prescription drug prices over the telephone. The Board's position, however, is that this would not constitute an unprofessional publication.⁶ It is clear, nonetheless, that all advertising of such prices, in the normal sense, is forbidden. The prohibition does not extend to nonprescription drugs, but neither is it confined to prescriptions that the pharmacist compounds himself. Indeed, about 95% Of all prescriptions now are filled with dosage forms prepared by the pharmaceutical manufacturer.⁷

II

This is not the first challenge to the constitutionality of § 54-524.35 and what is now its third-numbered phrase. Shortly after the phrase was added to the statute in 1968,⁸ a suit seeking to enjoin its operation was instituted by a drug retailing company and one of its pharmacists. Although the First Amendment was invoked, the challenge appears to have been based primarily on the Due Process and Equal Protection Clauses of the Fourteenth Amendment. In any event, the prohibition on drug price advertising was upheld. Patterson Drug Co. v. Kingery, 305 F.Supp. 821 (W.D.Va.1969). The three-judge court did find that the dispensation of prescription drugs "affects the public health, safety and welfare." Id., at 824-825. No appeal was taken.

The present, and second, attack on the statute is one made not by one directly subject to its prohibition, that is, a pharmacist, but by prescription drug consumers who claim that they would greatly benefit if the prohibition were lifted and advertising freely allowed. The plaintiffs are an individual Virginia resident who suffers from diseases that require her to take prescription drugs on a daily basis,⁹ and two nonprofit organizations. ¹⁰ Their claim ithat the First Amendment entitles the user of prescription drugs to receive information that pharmacists wish to communicate to them through advertising and other promotional means, concerning the prices of such drugs.

Certainly that information may be of value. Drug prices in Virginia, for both prescription and nonprescription items, strikingly vary from outlet to outlet even within the same locality. It is stipulated, for example, that in Richmond "the cost of 40 Achromycin tablets ranges from $2.59 to $6.00, a difference of 140% (Sic )," and that in the Newport News-Hampton area the cost of tetracycline ranges from $1.20 to.$9.00, a difference of 650%.¹¹

The District Court seized on the identity of the plaintiff-appellees as consumers as a feature distinguishing the present case from Patterson Drug Co. v. Kingery, supra. Because the unsuccessful plaintiffs in that earlier case re pharmacists, the court said, "theirs was a prima facie commercial approach," 373 F.Supp., at 686. The present plaintiffs, on the other hand, were asserting an interest in their own health that was "fundamentally deeper than a trade consideration." Ibid. In the District Court's view, the expression in Valentine v. Chrestensen, 316 U.S. 52, 54-55, 62 S.Ct. 920, 921, 86 L.Ed. 1262, 1265-66 (1942), to the effect that "purely commercial advertising" is not protected had been tempered, by later decisions of this Court, to the point that First Amendment interests in the free flow of price information could be found to...