Culver v. Nelson
| Decision Date | 29 May 1952 |
| Docket Number | No. 35595,35595 |
| Citation | 54 N.W.2d 7,237 Minn. 65 |
| Parties | CULVER et al. v. NELSON et al. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. Pure and concentrated vitamins or combinations of pure and concentrated vitamins, natural or synthetic, carried in an excipient, solid or liquid, and offered for sale as tablets, capsules, or in liquid form, are drugs within the meaning of M.S.A. c. 151.
2. Such vitamin preparations are not common household preparations sold exclusively for nonmedicinal purposes.
3. Such vitamin preparations are not excepted from the operation of M.S.A. c. 151 as nonhabit-forming, harmless, proprietary medicines.
4. Restriction of the sale of vitamin preparations consisting of pure and concentrated vitamins, natural or synthetic, carried singly or in combination with other vitamins in an excipient, solid or liquid, and offered for sale as tablets, capsules, or in liquid form, by pharmacists, as defined by M.S.A. c. 151, is not so foreign to the protection of the public health or welfare as to be violative of Minn.Const. art. 1, § 7, or art. 4, § 33.
Felhaber & Larson, St. Paul, for appellant.
J. A. A. Burnquist, Atty. Gen., Geo. B. Sjoselius, Deputy Atty. Gen., for respondents.
Plaintiff is a retail grocer doing business in the city of St. Paul. He brings this action, in his own behalf and in behalf of all others managing and operating retail food stores in the state of Minnesota, to obtain a declaratory judgment determining the proper construction to be placed on L.1937, c. 354, M.S.A. c. 151, insofar as it affects his right, and those of others similarly situated, to sell at retail tablets, capsules, or liquids containing vitamins in their original packages as prepared by the manufacturer or distributor without giving any directions as to their use except such as are given on or in the package in which they are offered for sale. It is admitted that plaintiff is not registered as a pharmacist or assistant pharmacist, and that he does not, in the operation of his food store, employ a pharmacist or assistant pharmacist. It is also conceded that each of the boxes, vials, or containers in which the tablets or capsules are offered for sale contains the information required under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. §§ 301--321b, 331--392, and the regulations issued thereunder and under the laws of this state.
Defendants are members of the state board of pharmacy. They contend that the products plaintiff seeks to offer for sale are drugs within the definition thereof contained in the state pharmacy law; that they may be sold only in a pharmacy under the personal supervision of a pharmacist or assistant pharmacist; and they have threatened to prosecute plaintiff if he sells the products here involved. 1
The products plaintiff proposes to sell are prepared by the manufacturer for sale in the form of tablets, capsules, or liquids and are composed of pure 2 or concentrated vitamins, natural or synthetic, carried in a neutral vehicle or excipient, solid or liquid. Each box, vial, or other container of tablets, capsules, or liquids bears on the label the name and address of the manufacturer or distributor, the tradename given to the product by the manufacturer or distributor, and a description of the contents of the container. Some of the samples introduced in evidence contain the words 'dietary supplement' or words of like import, indicating that the product is to be used as a dietary supplement intended to provide the minimum daily requirements of the type of vitamin contained in the tablet, capsule, or liquid. Others contain other directions. For instance, plaintiff's exhibits T, Y, and O, all of which are the same product, contain the statement: 'Dosage: Adults and Children--One * * * (capsule) daily, Or as directed by a physician.' (Italics supplied.) Several of the exhibits state that the minimum need for certain named vitamins has not yet been established.
The pertinent portions of our statute involved in this action are as follows:
'151.15 It shall be unlawful for any person to compound, dispense, vend, or sell at retail, drugs, medicines, chemicals, or poisons in any place other than a pharmacy, except as provided in this chapter.
'No proprietor of a pharmacy shall permit the compounding or dispensing of prescriptions or the vending or selling at retail of drugs, medicines, chemicals, or poisons in his pharmacy except under the personal supervision of a pharmacist or of an assistant pharmacist in the temporary absence of the pharmacist.'
'151.01 Subdivision 1. * * *
'Subdivision 2. The term 'pharmacy' means a drug store or other established place regularly registered by the state board of pharmacy, in which prescriptions, drugs, medicines, chemicals, and poisons are compounded, dispensed, vended, or sold at retail.
'Subdivision 3. The term 'pharmacist' means a natural person licensed by the state board of pharmacy to prepare, compound, dispense, and sell drugs, medicines, chemicals, and poisons.
'Subdivision 4. The term 'assistant pharmacist' means a natural person licensed as such by the state board of pharmacy prior to January 1, 1930, to prepare, compound, dispense, and sell drugs, medicines, chemicals, and poisons in a pharmacy having a pharmacist in charge.
'Subdivision 5. The term 'drug' means all medicinal substances and preparations recognized by the United States pharmacopeia and national formulary or any revision thereof, and all substances and preparations intended for external and internal use in the cure, mitigation, treatment, or prevention of disease in man or other animal, and all substances and preparations, other than food, intended to affect the structure or any function of the body of man or other animal.
'151.26 * * * nothing in this chapter shall prevent the sale of common household preparations and other drugs, chemicals, and poisons sold exclusively for use for non-medicinal purposes.
'Nothing in this chapter shall apply to or interfere with the manufacture, wholesaling, vending, or retailing of non-habit forming harmless proprietary medicines when labeled in accordance with the requirements of the state or federal food and drug act; nor to the manufacture, wholesaling, vending, or retailing of flavoring extracts, toilet articles, cosmetics, perfumes, spices, and other commonly used household articles of a chemical nature, for use for non-medicinal purposes.'
Plaintiff contends (1) that the vitamin products which he proposes to sell in his food store constitute food or food products and are not drugs within the meaning of our statute; (2) that if such products are drugs within the meaning of our statute they are exempt from the operation thereof for the reason that they are common household preparations and are sold exclusively for use for nonmedicinal purposes; (3) that they are exempt from our statute for the reason that they are nonhabit-forming, harmless, proprietary medicines; and (4) that if the Minnesota pharmacy act restricts to pharmacists the sale of vitamin products offered for sale as dietary supplements the statute is unconstitutional.
1. There is agreement among counsel for the respective parties that our statutory definition of the term 'drug', § 151.01, subd. 5, breaks down into three parts or categories, namely (a) medicinal substances and preparations recognized by the United States pharmacopoeia and national formulary or any revision thereof; (b) substances and preparations intended for external and internal use in the cure, mitigation, treatment, or prevention of disease in man or other animal; and (c) substances and preparations, other than food, intended to affect the structure or any function of the body of man or other animal.
(a) It is undisputed that the following vitamins are recognized by the United States pharmacopoeia: Vitamin A; Vitamin B1, Thiamin or Aneurin; Vitamin B2 or G, Riboflavin; Vitamin P-P, Nicotinic Acid or Amide; Vitamin C, Ascorbic Acid; Vitamin D2, Activated Ergosterol; Vitamin D3, Activated 7-dehydrocholesterol; Vitamin K (Synthetic) Menadione.
Some vitamins are not yet recognized by the United States pharmacopoeia or national formulary. Among these are the following: Vitamin B6, Pyridoxine; Vitamin Bc, Folic Acid; Vitamin K1.
All of the exhibits offered by plaintiff contain some of the vitamins recognized by the United States pharmacopoeia, and most of them contain several of such vitamins in various amounts and combinations. Plaintiff contends that none of the preparations he intends to offer for sale are recognized by the United States pharmacopoeia, but we do not consider that fact of controlling significance. If the constituent elements of these preparations are drugs within the meaning of our statute, the mere fact that several drugs compounded together are dispensed in a neutral excipient does not destroy their classification as a drug, nor will the fact that the United States pharmacopoeia or national formulary fails to recognize such combination of vitamins, which it does recognize separately, or that it is combined with other vitamins or some other neutral excipient, take it outside the category of drugs as defined by our statute. We are convinced that the products which plaintiff wishes to offer for sale come within the first category of our statutory definition of a drug. Nor does the fact that the United States pharmacopoeia recognizes other substances such as water, salt, sugar, honey, and many others which are normally used as food but may at times be used for medicinal purposes detract from the fact that the recognition of the vitamins described above sufficiently brings these vitamins within the statutory definition of a drug insofar as the first requirement of the...
To continue reading
Request your trial
-
Loblaw, Inc. v. New York State Bd. of Pharmacy
... ... 288 (now changed by statute); State v. Zotalis, 172 Minn. 132, 214 N.W. 766; State v. Wakeen, 263 Wis. 401, 57 N.W.2d 364; Culver v. Nelson, 237 Minn. 65, 54 N.W.2d 7; State v. Combs, 169 Or. 566, 130 P.2d 947; State v. Stephens, 102 Mont. 414, 59 P.2d 54 (but statute declared ... ...
-
State v. Red Owl Stores, Inc.
... ... , 818 we said that it means 'belonging or pertaining to a proprietor; relating to a certain owner or proprietor.' In the more recent case of Culver v. Nelson, 237 Minn. 65, 74, 54 N.W.2d 7, 12, we observed, 'While it is difficult to exactly define proprietary medicines, it is much less difficult ... ...
-
Loblaw, Inc. v. New York State Bd. of Pharmacy
... ... 74, 42 N.W. 781; State v. Zotalis, 172 Minn. 132, 214 N.W. 766; State v. F. W. Woolworth Co., 184 Minn. 51, 237 N.W. 817, 76 A.L.R. 1202; Culver v. Nelson, 237 Minn. 65, 54 N.W.2d 7; State v. Red Owl Stores, Inc., 253 Minn. 236, 92 N.W.2d 103; State v. Combs, 169 Or. 566, 130 P.2d 947. There ... ...
-
State v. Red Owl Stores, Inc.
... ... Page 109 ... case in which the law is discussed in Culver v. Nelson, 237 Minn. 65, 54 N.W.2d 7. There the plaintiff sought a declaratory judgment to establish that the retail sale of vitamins by one not ... ...