National Pharmacies, Inc. v. De Melecio
| Decision Date | 31 March 1999 |
| Docket Number | No. Civ. 95-1342(HL).,Civ. 95-1342(HL). |
| Parties | NATIONAL PHARMACIES, INC., Plaintiff, v. Carmen Feliciano DE MELECIO, Secretary Of Health, et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Jay A. Garcia-Gregory, Fiddler, Gonzalez & Rodriguez, San Juan, PR, for National Pharmacies, Inc., plaintiff.
Esther Castro-Schmidt, Gaztambide & Plaza, San Juan, PR, for Carmen Feliciano-De-Melecio, Honorable Carmen Feliciano de Melecio, as Secretary of Health of Puerto Rico, Department of Health of the Commonwealth of Puerto Rico, acting in her oficial capacity, defendant.
Johanna Emmanuelli-Huertas, Ponce, PR, for College of Pharmacists of Puerto Rico, defendant.
Juan R. Gonzalez-Munoz, Gonzalez Munoz & Quinones, Tridas, San Juan, PR, for Association of Pharmacy Owners of Puerto Rico, Inc., defendant.
Before the Court is Plaintiff National Pharmacies, Inc.'s ("National") request for declaratory and injunctive relief. National, a New Jersey corporation engaged in the business of filling medical prescriptions through the mail, challenges the constitutionality of certain Puerto Rico statutes which govern the pharmacy industry. National claims that these laws and their attempted enforcement by Defendants violate National's rights under the Dormant Commerce Clause and the First Amendment. Defendants are Carmen Feliciano, the Puerto Rico Secretary of Health; the Colegio de Farmaceúticos ("Colegio"), a quasi-public corporation charged with governing the conduct and defending the rights of pharmacists practicing in Puerto Rico; and the Asociación de Dueños de Farmacias de Puerto Rico ("Asociación"), a non-profit organization comprised of owners of retail pharmacies in Puerto Rico. The Puerto Rico Secretary of Justice has intervened as a defendant in this case.1 Also, the American Managed Care Pharmacy Association and Retired Persons Services, Inc. have filed amicus curae briefs in support of National's position. The parties have submitted extensive briefs, as well as a set of stipulated facts.2
In its complaint and motion for injunctive relief, National challenges sections 385, 396, 401, and 402 of the Pharmacy Act of Puerto Rico3 and section 433 of the chapter which creates the Colegio de Farmaceúticos.4 Section 385 requires that every practicing pharmacist be registered with the Board of Pharmacy5 and be a member of the Colegio. P.R.Laws Ann. tit. 20, § 385. Section 396 reads in pertinent part
Every establishment devoted, or which may hereafter be devoted, to the sale of medicines, chemical or pharmaceutical products, patent medicines, drugs wholesale or retail, or manufacture of medicines shall have to apply to the Secretary of Health for a license and the Secretary of Health shall have power to issue same after inspection of the establishment, provided the establishment, in the discretion of the Secretary of Health, meets the purposes and requirements of this chapter.
Id. § 396. Section 401 reads as follows: "In all cases where a pharmacist is practicing his profession he shall be a member of the College of Pharmacists of Puerto Rico, of age, shall manage in person the establishment under his supervision, and shall reside in the town in which he is practicing." Id. § 401. Section 402 requires that every pharmacy be managed by a pharmacist authorized to practice in Puerto Rico. The section further requires that the pharmacist may only be absent from the pharmacy for a limited number of hours per week. Id. § 402. Section 433 states
All pharmacists admitted to practice the profession by the Board of Pharmacists of Puerto Rico and those pharmacists to whom the Board of Pharmacists has issued special authorization to practice at a Commonwealth or municipal government health facility pursuant to the provisions of section 71 et seq. of this title shall be members of the College.
No person who is not a member thereof may practice the profession of pharmacists in the Commonwealth of Puerto Rico.
Id. § 433. The Secretary of Health is charged with inspecting pharmacies in Puerto Rico and with enforcing these laws. Id. § 383. National's general claim is that this statutory framework prevents it from doing business in Puerto Rico and that therefore the statutes unconstitutionally restrict interstate commerce.
The parties have stipulated to the following facts: Plaintiff National owns and operates a mail-order pharmacy in New Jersey. National is properly registered under the appropriate New Jersey laws and is registered with the Drug Enforcement Administration of the United States Department of Justice. National employs a number of pharmacists who are properly licensed and registered under the relevant laws of New Jersey. National is also registered in twenty-two states as a nonresident pharmacy. National is subject to inspection and audits by authorities from New Jersey, the DEA, and those states where it is registered as a nonresident pharmacy. National's customer base consists of patients throughout the United States. These customers mail their prescriptions to National. The company's pharmacists in New Jersey then fill the prescriptions and mail them out to the customers. There is thus no face-to-face contract between pharmacist and patient. National does not own or operate a pharmacy in Puerto Rico. None of its pharmacists reside in Puerto Rico, are licensed to practice here, or are members of the Colegio. In January 1994 National entered into a contract with Blue Cross of Puerto Rico, a health insurance provider. Pursuant to this agreement, National would fill the prescriptions of Blue Cross' clients by mail.6
In addition to the above-mentioned stipulated facts, the record indicates the following: In 1992, the Colegio filed an administrative complaint with the Department of Health against Blue Cross of Puerto Rico. The administrative claim alleged that Blue Cross was beginning a marketing campaign to offer a mail-order pharmacy service to its customers and that such a service violated the pharmacy laws of Puerto Rico.7 In September 1994, the Colegio moved to dismiss this administrative claim and filed a claim against Blue Cross for declaratory and injunctive relief in Puerto Rico Superior Court. In its Superior Court complaint, the Colegio alleged that Blue Cross' program to provide prescription medicines through the mail meant that prescriptions would be filled by a pharmacist not licensed to practice in Puerto Rico and working at a pharmacy not authorized to do business in Puerto Rico.8 Therefore, the Colegio claimed, Blue Cross' practice violated the pharmacy laws of Puerto Rico.
During this same time period, the Colegio and the Asociación were attacking the mail-order business on another front. The presidents of both organizations wrote to the Secretary of Health to complain about the mail-order pharmacy business and to inquire as to the Department of Health's position on this practice.9 The Secretary of Health asked her general counsel for an opinion on the legality of this business. In her counsel's response he opined that the Pharmacy Act provides that only a pharmacy registered in Puerto Rico which employs a pharmacist who is a member of the Colegio can fill a prescription in Puerto Rico. Moreover, the Act requires that the pharmacist be present at the place where the pharmacy operates in Puerto Rico and that the pharmacist reside in the town where he is practicing. The Secretary's counsel concluded that therefore the practice of filling prescriptions outside of Puerto Rico and delivering them by mail to the customers violated the Pharmacy Act.10 Based on this opinion, the Secretary of Health wrote back to the Colegio and the Asociación on November 29, 1994. In her letters she stated that the mail-order pharmacy business violated Puerto Rico law and that any member of either organization who was aware of this practice should file an administrative complaint with the Department of Health.11 In January 1995, the Asociación brought an administrative complaint before the Department of Health against Blue Cross, National, other mail-order pharmacies, and other organizations that sponsored health plans which offered this service. The complaint alleged that mail-order pharmacy violated Puerto Rico law.12 The administrative claim has since been stayed, and the Superior Court case has been dismissed.13 The administrative claim was stayed pending the resolution of the case before this Court. The Superior Court case was dismissed without prejudice, by agreement of the parties. It appears that the Superior Court case dismissal — like the stay in the administrative case — was entered in deference to the resolution of the controversy presently before this Court.14
Faced with this hostility to its modus operandi, National brought the present action. It alleges that the above-cited statutes constitute protectionist measures which prevent it from conducting business in Puerto Rico. Therefore, National argues, these statutes unconstitutionally limit interstate commerce in violation of the Dormant Commerce Clause. National also argues that the Puerto Rico statutes are preempted by the federal Comprehensive Drug Abuse Prevention and Control Act of 1970.15 National seeks declaratory and injunctive relief. Defendants have opposed this request, arguing that National does not have standing to bring this claim; that the practice of pharmacy is a profession and not a part of interstate commerce; and that the subject laws constitute a legitimate exercise of Puerto Rico's police powers over the health and welfare of its citizens.
The Secretary of Justice argues that National lacks standing to bring this claim.16 He argues that National's claims are hypothetical and that it has not suffered any concrete injuries. Standing, one of the most complex areas in the field of federal jurisdiction, is a threshold...
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