Loblaw, Inc. v. New York State Bd. of Pharmacy

• Decision Date: 07 March 1960
• Citation: 22 Misc.2d 131,202 N.Y.S.2d 711
• Parties: LOBLAW, INC., Plaintiff, v. NEW YORK STATE BOARD OF PHARMACY and Anthony L. Palladino (President), James S. Hill, Calvin Berger, Frederick F. Stevens, Thomas A. J. Rocchio, Edgar S. Bellis, Orrin O. Bigelow, Francis J. O'Brien, Mearl D. Pritchard, individually and and as members of the New York State Board of Pharmacy, and Kenneth S. Griswold, individually and as Secretary of The New York State Board of Pharmacy, The Education Department of The State of New York and The Board of Regents of The University of The State of New York, Defendants.
• Court: New York Supreme Court

Page 711

202 N.Y.S.2d 711

22 Misc.2d 131

LOBLAW, INC., Plaintiff, v. NEW YORK STATE BOARD OF PHARMACY and Anthony L. Palladino (President), James S. Hill, Calvin Berger, Frederick F Stevens, Thomas A. J. Rocchio, Edgar S. Bellis, Orrin O Bigelow, Francis J. O'Brien, Mearl D. Pritchard individually and and as members of the New York State Board of Pharmacy, and Kenneth S. Griswold, individually and as Secretary of The New York State Board of Pharmacy, The Education Department of The State of New York and The Board of Regents of The University of The State of New York, Defendants.

Supreme Court, Erie County.

March 7, 1960.

Jaeckle, Fleischmann, Kelly, Swart & Augspurger, Buffalo (Edwin F. Jaeckle and Joseph Swart, Buffalo, of counsel), Cahill, Gordon, Reindel & Ohl, New York City (Mathias F. Correa, Sheldon Oliensis, William E. Hegarty, Donald F. X. Finn, New York City, of counsel), for plaintiff.

Charles A. Brind, Jr., Albany (John P. Jehu, Elizabeth M. Eastman, George B. Farrington and Richard I. Nunez, Albany, of counsel), Louis J. Lefkowitz, Atty. Gen., of the State of New York (Paxton Blair, Solicitor Gen., Albany, and Henderson G. Riggs, Elmira, of counsel), for defendants.

Runals, Broderick, Shoemaker, Mathias & Rickert, Niagara Falls, and Emil Greenberg, Brooklyn (Clarence R. Runals and Thomas R. Mathias, Niagara Falls, of counsel), for Pharmaceutical Society of the State of New York, Inc., amicus curiae.

Martin, Clearwater & Bell, New York City (William F. Martin and Barton L. Ingraham, New York City, of counsel), for Medical Society of the State of New York, amicus curiae.

REID S. MOULE, Justice.

This is an action by the defendants for summary judgment. The plaintiff also seeks summary judgment (Rule 113, Rules of Civil Practice).

There appear to be no substantial questions of fact presented by the pleadings other than that the amended complaint alleges in paragraphs Tenth and Twelfth that Bayer Aspirin Tablets are not poisonous, deleterious and/or habit-forming within the meaning of Sec. 6816, subd. 2, par. c, of the Education Law. These allegations are put in issue by the answer but the defendants have not supported the denials by affidavits containing evidentiary facts as is required on such a motion (Shapiro v. Health Ins. Plan, 7 N.Y.2d 56, 62, 194 N.Y.S.2d 509, 514; O'Meara Co. v. National Park Bank, 239 N.Y. 386, 395, 146 N.E. 636, 638, 39 A.L.R. 747; Farrell v. Shelby Mutual Ins. Co., 18 Misc.2d 459, 461, 189 N.Y.S.2d 66, 68). Moreover, counsel for the defendants on the argument of these motions stated three times (pp. 19, 20, 28) that for the purposes of the motions no claim was made that Bayer Aspirin Tablets are a harmful remedy. These admissions are binding upon the defendants for they were made to avoid 'some question arising on the pleadings' (Gracie Square Realty Corp. v. Choice Realty Corp., 305 N.Y. 271, 278, 113 N.E.2d 416, 419; Lloyd v. R. S. M. Corp., 251 N.Y. 318, 320, 167 N.E. 456).

The action is brought for a judgment declaring that the plaintiff has the right to continue to sell Bayer Aspirin Tablets without first obtaining for its retail establishments registration certificates from the defendant, New York State Board of Pharmacy, and the right to make such sales through its employees who have not been issued licenses as pharmacists by the Board of Pharmacy or through employees who are not acting under the supervision of persons so licensed. Plaintiff also seeks a permanent injunction to restrain the defendants from proceeding against the plaintiff in any way which would interfere with its sale of Bayer Aspirin Tablets and from instituting any proceeding against the plaintiff under subd. 2 of Sec. 6823 of the Education Law.

In brief, the question here is the right of the plaintiff to sell prepackaged Bayer Aspirin Tablets in its chain of supermarkets in the State of New York without holding registration certificates issued by the Board of Pharmacy and through its unlicensed employees.

Though other questions are presented which will be discussed, the two principal questions are: first, whether Bayer Aspirin Tablets are a 'proprietary medicine' not poisonous, deleterious or habit-forming (Ed.Law, Sec. 6816, subd. 2, par. c), and second, if the Bayer Aspirin Tablets are held not to be a proprietary medicine, whether the statutory provisions relied upon by the defendants as prohibiting the sale of the product in plaintiff's supermarkets are constitutional.

The defendants rely in support of their position on provisions of the Education Law. Section 6805, subd. 1 of that law provides that except as prescribed in Article 137, entitled 'Pharmacy', it shall be unlawful for any person to practice as a pharmacist, druggist, apprentice or storekeeper or to engage in dispensing drugs at retail within the state and that every place in which drugs are possessed for the purpose of dispensing at retail 'shall be a pharmacy, a drug store, or a registered store' and that no pharmacy, drug store or registered store shall operate as such 'until the proprietor has applied for and received a registration certificate from the board'.

The term 'drugs' is defined in subd. 14 of Sec. 6801 of the Education Law but it is unnecessary to consider the provisions of this section since the plaintiff does not contest the claim that Bayer Aspirin Tablets come within the statutory definition of drugs and conceded it on argument (p. 10).

It, however, maintains that they are a proprietary medicine excepted by subd. 2, par. c of Sec. 6816 of the Education Law from the coverage of the statutory law relied upon by the defendants. This subdivision provides that Article 137 of the Education Law shall not apply except as to the labeling of poison and to adulterating, misbranding and substituting: 'c. To the sale of proprietary medicines except those proprietary medicines which are poisonous, deleterious and/or habit forming.'

There is no statutory definition of the term 'proprietary medicines'. There are, however, decisions in this and other states in which this term has been considered. Some of the decisions follow what is generally referred to as the common usage meaning, while others give a more technical or restricted meaning to the term proprietary medicines. The plaintiff maintains that the Bayer Aspirin Tablets conform to both definitions.

At the outset, this court wishes it to be clear that this decision relates solely to one product and that is Bayer Aspirin Tablets. Each decision on whether or not a drug is a propreitary one depends solely on the circumstances of the individual case. The courts have consistently taken that view and so hold.

Before considering the question as to the meaning of the term 'proprietary medicines', the background of this litigation will be briefly discussed. The plaintiff, a New York corporation, through its president, states that it operates 228 grocery supermarkets in the states of New York, Pennsylvania, Ohio and West Virginia, of which 141 supermarkets are in New York. Plaintiff has sold certain proprietary medicines including Bayer Aspirin Tablets in all of its stores since 1950 and its right to do so has not been questioned except in the State of New York where in January, 1955, inspectors of the defendant New York State Board of Pharmacy entered twelve of its stores and left notices of alleged violations of the law in that Bayer Aspirin Tablets were being offered for sale in plaintiff's supermarkets. Following some correspondence and negotiations, plaintiff states that under duress, it discontinued the sale of the items listed in the notices in its New York supermarkets. Bayer Aspirin Tablets are a product, more fully described below, manufactured, packaged and distributed in many countries by the Sterling Drug, Inc., and its subsidiaries. It is stated that in 1958 a majority of all retail sales of Bayer Aspirin Tablets in the United States were made in nondrug outlets. For many years, the Sterling companies have spent many millions of dollars annually in advertising Bayer Aspirin Tablets in all media for advertising. They are sold in every state of the United States and the District of Columbia. Over 20,000,000 Bayer Aspirin Tablets are produced daily. In the year 1958 over five and a half billion Bayer Aspirin Tablets were sold in the United States.

The basic active ingredient of Bayer Aspirin Tablets is a chemical compound known as acetylsalicylic acid, now commonly referred to as aspirin. Dr. Maurice L. Tainter, a vice-president of Sterling Drug, Inc., and the director of its research subsidiary, in his affidavit gives a history of the discovery, development and refinement of acetylsalicylic acid, the patent of the product, the expiration of the patent, the registration of the word 'aspirin' in the United States Patent Office, the court decision holding that the name was in the public domain and could be used by its competitors with certain restrictions. He shows that the trademark consisting of the words 'Bayer' and 'Bayer' in the form of a cross and the word 'Genuine' used in the sale of its Bayer Aspirin Tablets are valid.

The defendants maintain (Griswold's affidavit) that aspirin is a synonym for acetylsalicylic acid; that it is a drug intended to affect and does affect the humand body; that it is a medicine in general use; that the ingredients of aspirin are the common property of pharamacists and pharamceutical manufacturers and that aspirin is listed in the Pharmacopeia (U.S.P. XV) and that aspirin tablets can be prepared by any pharmacist or pharmacal manufacturer and conclude that Bayer's Aspirin Tablets are not a proprietary medicine, and that this is so even though the substance used as a binder may affect the solubility of the tablets.

The current Pharmacopeia (U.S.P. XV) provides that aspirin tablets to meet the required tests must disintegrate in not more than fifteen minutes. Plaintiff shows (Winig affidavit, par. 34)...