Maryland Bd. of Pharmacy v. Sav-A-Lot, Inc.

Decision Date31 October 1973
Docket NumberSAV-A-LO,No. 2,INC,2
Citation270 Md. 103,311 A.2d 242
PartiesMARYLAND BOARD OF PHARMACY v., et al.
CourtMaryland Court of Appeals

Lee Stuart Thomson, Spec. Asst. Atty. Gen. (Francis B. Burch, Atty Gen. and Paul Walter, Asst. Atty. Gen., Baltimore, on the brief), for appellant.

George W. McManus, Jr., Baltimore, for appellees.

Maryland Pharmaceutical Association, Inc., Joseph S. Kaufman, Baltimore, on the brief, amicus curiae.

Public Citizen, Inc. and Health Research Group. Raymond T. Bonner, Washington, D. C. and Kalman R. Hettleman, Baltimore, on the brief, amicus curiae.

Legal Services for the Elderly Poor. Larry Gibson, Baltimore, and Bernard C. Durham and Jonathan A. Weiss, New York City, on the brief, amicus curiae.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

LEVINE, Judge.

We are presented here with a constitutional challenge to Maryland Code (1957, 1971 Repl.Vol.) Art. 43, § 266A(c)(4)(iv) 1 resulting from an equity suit brought by appellees in the Circuit Court of Baltimore City. It subsequently became an action at law upon being transferred to the Superior Court of Baltimore City in consequence of a demurrer to the equity bill. Following a trial on the merits, in the course of which the parties presented considerable evidence, the court (Carter, J.) wrote a thoroughly-considered opinion, and declared the statute unconstitutional as a violation of appellees' due process rights under the Fourteenth Amendment to the Federal Constitution.

Appellees, who are three corporations operating seven retail stores in Maryland, instituted the action. Five of these outlets trade under the name of Sav-A-Lot and are essentially variety stores that do not contain pharmacy departments. The other two stores, known as Leader Drugs, operate pharmacies. The dispute between the parties began when appellant (the Board) refused to sanction the use of the name, 'Say-A-Lot Drugs' for appellees' 'prescription-type drug store(s)' because of the prohibition enunciated in Art. 43, § 266A(c)(4)(iv). The controversy has now ripened into a broader issue- whether appellees may advertise prescription drug prices, as well as the terms proscribed by the statute that connote price discounts on such drugs.

Briefly summarized, the evidence in the trial court showed the following: Dr. Sidney Wolf, a specialist in internal medicine, a former staff member at the National Institutes of Health, and currently affiliated with an organization known as 'Health Research Group,' testified to the 'great variation in (prescription drug) prices(s) from store to store within a given city.' This testimony, which has neither been contradicted below nor is seriously challenged here, was amply supported by documentary evidence admitted by the trial court.

This witness also pointed out that senior citizens, many of whom are on 'maintenance' drugs, are prevented from 'shopping' for the lowest available prices by the statutory proscription against advertising. He testified that this is a matter of great concern for the elderly, the sick, and the economically disadvantaged, for it is such persons who are less mobile and therefore less able to survey drug stores for comparative prices. For these reasons, according to the witness, the consumer's present dilemma of identifying those stores which offer the lowest prices for prescription drugs would be solved by removing the prohibition against prescription drug advertising. This testimony was supported, in part, by Father Donald Wilson, whose parish church operates an apartment house for senior citizens in the City of Baltimore.

To counter this evidence, appellant produced Norman J. Levin, a pharmacist in Baltimore County and President of the Maryland Board of Pharmacy. He presented a number of reasons why in his opinion, and that of the entire Board, the statute was necessary. We shall allude to them later in this opinion.

In this Court, appellant renews its argument that the statute does not violate the Due Process Clause of the Fourteenth Amendment, and urges upon us that it is a reasonable exercise of the state's police power. Thus, the question we must answer is whether this statute, as an exercise of the state's police power, provides a real and substantial relation to the public health, morals, safety, and welfare of the citizens of this state, Liggett Co. v. Baldridge, 278 U.S. 105, 111-112, 49 S.Ct. 57, 73 L.Ed. 204 (1928); Stevens v. City of Salisbury, 240 Md. 556, 564, 214 A.2d 775 (1965); Davis v. State, 183 Md. 385, 393, 37 A.2d 880 (1944); Dasch v. Jackson, 170 Md. 251, 263, 183 A. 534 (1936). The wisdom or expediency of a law adopted in the exercise of the police power of the state is not subject to judicial review, and such a statute will not be held void if there are any considerations relating to the public welfare by which it can be supported, Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 48, 300 A.2d 367 (1973); Davis v. State, supra, 183 Md. at 397, 37 A.2d 880; State v. Seney Company, 134 Md. 437, 448, 107 A. 189 (1919). Hence, this statute carries with it a strong presumption of constitutionality, Gino's v. Baltimore City, 250 Md. 621, 636, 244 A.2d 218 (1968); Deems v. Western Maryland Ry., 247 Md. 95, 102, 231 A.2d 514 (1967); Magruder v. Hall of Rec'ds Comm., 221 Md. 1, 6, 155 A.2d 899 (1959).

Nevertheless, if a statute purporting to have been enacted to protect the public morals or the public safety has no real or substantial relation to those objects or is a palpable invasion of rights secured by fundamental law, it is our duty to so adjudge and thereby give effect to the Constitution, Mugler v. Kansas, 123 U.S. 623, 661, 8 S.Ct. 273, 31 L.Ed. 205 (1887); Hiller v. State, 124 Md. 385, 391, 92 A. 842 (1914); State v. Hyman, 98 Md. 596, 615, 57 A. 6 (1904).

Statutes similar to that under attack here have been upheld on constitutional grounds, Patterson Drug Company v. Kingery, 305 F.Supp. 821 (W.D.Va.1969); Supermarkets Gen. Corp. v. Sills, 93 N.J.Super. 326, 225 A.2d 728 (1966). Other states have, however, declared such statutes unconstitutional, Elorida Board of Pharmacy v. Webb's City, Inc., 219 So.2d 681 (Fla.1969); Stadnik v. Shell's City, Inc., 140 So.2d 871 (Fla.1962); Pennsylvania State Board of Pharmacy v. Pastor, 441 Pa. 186, 272 A.2d 487 (1971), 44 A.L.R.3d 1290. Other states have resolved analogous conflicts relying upon other grounds, see West Romaine Corp. v. California State Board of Pharmacy, 266 Cal.App.2d 901, 72 Cal.Rptr. 569 (1968); Oregon Newspaper Publishers Ass'n v. Peterson, 244 Or. 116, 415 P.2d 21 (1966).

In Patterson Drug Company v. Kingery, supra, a three-judge federal court had before it a Virginia statute which subjected any pharmacist to a charge of unprofessional conduct who:

'issues, publishes, advertises or promotes, directly or indirectly, in any manner whatsoever, any amount, price, fee, premium, discount, rebate or credit terms for professional services or for drugs containing narcotics or for any drugs which may be dispensed only by prescription.' 305 F.Supp. at 823.

Relying principally upon the cases of Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955) and Semler v. Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086 (1935) for the rationale that the practice of pharmacy is a professional pursuit-and thus 'subject to regulation and control in the public interest'-the federal court in Virginia sustained the prohibition against advertising the retail prices of prescription drugs as a constitutional exercise of the state's police power.

In Supermarkets, supra, the New Jersey court upheld a state law which declared as grossly unprofessional conduct:

'The promotion, direct or indirect, by any means, in any form and through any media of the prices for prescription drugs and narcotics or fees or for services relating thereto or any reference to the price of said drugs or prescriptions whether specifically or as a percentile of prevailing prices or by the use of the terms 'cut rate,' 'discount,' 'bargain,' or terms of similar connotation'; 225 A.2d at 732.

In part, the court applied the same reasoning as the Kingery court, and concluded that the plaintiffs had not rebutted the 'strong presumption of constitutionality' with which the statute was cloaked.

In Stadnik v. Shell's City, Inc., supra, the Florida Supreme Court affirmed a lower court ruling which struck down as unconstitutional a regulatory measure promulgated by the State Board of Pharmacy against advertising '. . . the name or price of tranquilizing drugs or antibiotics or other drugs which can be purchased and dispensed only by means of a prescription from a physician,' 140 So.2d at 872. There, as in the Virginia, New Jersey and Pennsylvania cases cited above, the court was met by a contention that the statute was a reasonable exercise of the state's police power. It rejected that argument, however, holding that there was 'no reasonable justification for such an administrative intrusion on private rights when the regulation is so completely lacking in public benefit,' 140 So.2d at 875. Later, upon the authority of Stadnik, the Florida Supreme Court, in Florida Board of Pharmacy v. Webb's City, Inc., supra, declared unconstitutional a statute which provided:

'No pharmacist, owner or employee of a retail drug establishment shall use any communication media to promote or advertise the use or sale of any of the following:

'(f) Any drugs which require a prescription.' 219 So.2d at 681 (emphasis omitted).

In Pennsylvania State Board of Pharmacy v. Pastor, supra, the Pennsylvania Supreme Court considered the constitutionality vel non of a statute which made it unlawful for a pharmacist to advertise the prices of dangerous or narcotic drugs. Elsewhere the statute defined as 'dangerous' all drugs which can be dispensed only with a physician's prescription. The court found...

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