Loblaw, Inc. v. New York State Bd. of Pharmacy
| Citation | 12 A.D.2d 180,210 N.Y.S.2d 709 |
| Parties | LOBLAW, INC., Respondent, v. NEW YORK STATE BOARD OF PHARMACY, et al., Appellants. |
| Decision Date | 12 January 1961 |
| Court | New York Supreme Court — Appellate Division |
Louis J. Lefkowitz, Atty. Gen. (Paxton Blair and Henderson G. Riggs, Albany, of counsel), for appellants.
Charles A. Brind, Jr., Counsel, State Education Department, Albany (John P. Jehu, Elizabeth M. Eastman and George B. Farrington, Albany, of counsel), for appellants.
Jaeckle, Fleischmann, Kelly, Swart & Augspurger, Buffalo (Cahill, Gordon Reindel & Ohl, Mathias F. Correa and William E. Hegarty, New York City, of counsel), for respondent.
Clarence R. Runals and Thomas R. Mathias, Niagara Falls, for Pharmaceutical Society of State of New York, Inc., amicus curiae.
Before WILLIAMS, P. J., and BASTOW, GOLDMAN and HENRY, JJ.
The defendants, State Board of Pharmacy, et al., have appealed from a judgment in favor of the plaintiff which provides in effect that plaintiff may sell Bayer Aspirin Tablets in its retail stores in New York State without complying with certain provisions of the Education Law regulating the sale of drugs.
The technical name of the product commonly known as aspirin is acetylsalicylic acid. We shall refer to it as aspirin. It is not disputed that it is a drug. The manufacturer of Bayer Aspirin Tablets is the Sterling Drug Company. The plaintiff's only interest in this controversy is to establish the right to continue to sell these tablets in its retail stores.
A very informative discussion of the historical aspects of 'aspirin' may be found in the statement of facts and opinion written by Judge Learned Hand in Bayer Co., Inc. v. United Drug Co., D.C., 272 F. 505. At one time, the Bayer Company, Inc., the predecessor of Sterling Drug Co., owned the patent on the product known as aspirin and the common-law as well as the registered trademark in the name. However, this patent expired in 1917 and the registered trademark of the name expired through cancellation on November 30, 1918. Because of the manner in which the product was handled, sold and distributed by Bayer Co., Inc., and its predecessor, the exclusive right to use the name 'aspirin' was lost, and, of course, upon the expiration of the patent, the exclusive patent rights in the product were also lost. Thus, since 1917, neither Bayer Co., Inc. nor the Sterling Drug Co. has had exclusive rights in the product or in the name 'aspirin'. In the action brought by Bayer, the Court refused to enjoin the use of the name 'aspirin' by the United Drug Company, but did enjoin the use of the words 'genuine Aspirin.' This holding entailed a determination that Bayer had no exclusive rights either to manufacture aspirin or to the use of that name.
Plaintiff is a New York State corporation which operates many so-called retail supermarkets in this and other states. It has been selling pre-packaged 'Bayer Aspirin Tablets' for some years at its various stores without such stores being registered as pharmacies and without licensed and registered pharmacists supervising such sales (see Education Law, § 6805). All of this is conceded by plaintiff but it is contended that such registration and supervision is unnecessary for reasons which we shall discuss.
Article 137 of the Education Law regulates the sale and distribution of drugs in the State of New York. Inasmuch as aspirin is a drug, the provisions of the Article apply to it. They also apply to 'Bayer Aspirin Tablets', the product in question, unless these tablets are excepted from the operation of the Article as 'proprietary medicines.'
The plaintiff claims, and Special Term has found, that such tablets are 'proprietary medicines' and as such are exempt from the application of the Article. Plaintiff also contends that, in any event, any attempt to interfere with the free and unlicensed sale of these tablets is unreasonable, arbitrary, discriminatory and therefore unconstitutional.
In order to understand the purposes and scope of Article 137 of the Education Law, references to certain specific sections are necessary, with a foreword that the general purpose of the Article is the regulation of the sale and distribution of drugs in this state.
Section 6801, Subd. 14, states:
"Drugs' means:
It is not questioned that aspirin is included in all of these categories.
By virtue of Sec. 6802, the State Board of Pharmacy is given the power and duty to regulate and control the practice of pharmacology, the sale of drugs and the character and standard of drugs. "Pharmacology' is the science that treats of drugs and medicines, their nature, preparation, administration and effect.' Subd. 12, § 6801. Section 6805 requires that drugs be sold in licensed pharmacies or drug stores under the personal supervision of licensed pharmacists except under certain circumstances stated in that section, which are not here pertinent. Other sections of the Article apply to working hours and conditions; to adulteration, misbranding and substituting; when sales shall be only on prescription; the keeping of records; and the control of sale and distribution generally. Section 6816, under which the first phase of our problem arises, excepts certain products from the scope of the act. Subdivision 2 provides:
'Except as to the labeling of poison and to adulterating, misbranding and substituting, it [Article 137] shall not apply: * * * c. To the sale of proprietary medicines except those proprietary medicines which are poisonous, deleterious and/or habit forming.'
It is the claim of plaintiff, resisted by the defendants, that 'Bayer Aspirin Tablets' come within the definition of 'proprietary medicines' and are thus excluded from the operation and control of the Article.
There is no definition of 'proprietary medicines' in the statute. Therefore, we must look elsewhere in our efforts to determine what products the legislature intended these words to include. Dictionary definitions are not too helpful. In Webster's New International Dictionary (Merriam-Webster, 2d Ed., Unabridged), the adjective 'proprietary' is defined. 'Made and marketed by a person or persons having the exclusive right to manufacture and sell such; as a proprietary article, medicine or food.' The noun 'proprietary' is defined as 'One who has exclusive title to a thing; one who possesses the dominion or ownership of a thing in his own right.'
Maloy's Medical Dictionary for Lawyers (2d Ed.), defines 'proprietary':
It will be noticed that in these definitions, exclusive titles and rights are stressed. Of course there is no exclusive right of Sterling Drug Co. in aspirin. The plaintiff, however, contends that, although Sterling has no proprietary right to the drug aspirin, it has exclusive proprietary rights in the tablets known as 'Bayer Aspirin Tablets.' It is claimed that the tablets are of a special composition, color and design and are manufactured under a secret process; that the binder used is special and secret; that the quality of these tablets is superior to that of other aspirin tablets; and that they are more quickly dissolved. It is also claimed that large sums of money have been expended in advertising and educating the general public as to their quality and efficacy and that in purchasing them, the public relies on the manufacturer and not on the real or presumed skill of the vendor. The contention is that all of the these things have created the proprietary medicine known as 'Bayer Aspirin Tablets'.
There are various rules and standards which the courts have applied in determining whether a specific product is a proprietary medicine. Some of these decisions have been based on a technical or literal construction of the words themselves. These decisions reason that there must be a proprietary or exclusive right or interest in some proprietor patentee. See e. g., State v. Donaldson, 41 Minn. 74, 83, 42 N.W. 781, 784. Other authorities which have adopted this reasoning are: State ex rel. Missildine v. Jewett Market Co., 209 Iowa 567, 228 N.W. 288 (); 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 ().
Other courts approach the problem on the basis of the attitude of the general public in purchasing these products. In other words, has the manufacturer enhanced the name, design and style of merchandising, to the extent that the purchasing public accepts the product by name and reputation without more? This involves a consideration of prepackaging, trademarks, trade names, slogans and other factors. The application of these principles has resulted in what is sometimes termed the 'common usage' definition. Some of the determinations made under this general approach are: People v. Heron, 34 Cal.App.Supp.2d 755, 90 P.2d 154 (see especially the concurring opinion by Shaw, P. J.); Wrigley's Stores v. Michigan Board of Pharmacy, 336 Mich. 583, 59 N.W.2d 8; Kentucky Board of Pharmacy v. Cassidy, 115 Ky. 690, 74 S.W. 730.
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