Pennsylvania State Bd. of Pharmacy v. Pastor

• Citation: 272 A.2d 487,441 Pa. 186
• Parties: , 44 A.L.R.3d 1290 PENNSYLVANIA STATE BOARD OF PHARMACY v. Edward Robert PASTOR, Appellant.
• Decision Date: 07 January 1971
• Court: United States State Supreme Court of Pennsylvania

Page 487

272 A.2d 487

441 Pa. 186, 44 A.L.R.3d 1290

PENNSYLVANIA STATE BOARD OF PHARMACY v. Edward Robert PASTOR, Appellant.

Supreme Court of Pennsylvania.

Jan. 7, 1971.

David N. Savitt, John Patrick Walsh, Philadelphia, for appellant

Victor L. Schwartz, Asst. Atty. Gen., Harrisburg, for appellee.

William Tucker, Asst. Atty. Gen., Duke W. Dunbar, Atty. Gen., James P. Moore, Deputy Atty. Gen., Denver, Colo. Helgi Johanneson, Atty. Gen., Paul M. Sand, First Asst. Atty. Gen., Bismarck, N.D., Andrew Before BELL, C.J., and JONES, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

P. Miller, Atty. Gen., Anthony F. Troy, Asst. Atty. Gen., Richmond, Va., for Amicus Curiae.

OPINION OF THE COURT

ROBERTS, Justice.

Section 8(11) of the Pharmacy Act, Act of September 27, 1961, P.L. 1700, 63 P.S. § 390--8(11), makes it unlawful for a pharmacist to advertise the prices of dangerous or narcotic drugs. ¹ We are today called upon to determine whether this statute is constitutional.

The instant case arises as follows: In April of 1965 appellant's pharmacist license was revoked by the State Board of Pharmacy, ² after it found that he had placed a newspaper advertisement listing the prices his pharmacy charged for certain drugs. The revocation was appealed to the Court of Common Pleas of Dauphin County, sitting as the Commonwealth Court, appellant asserting that the statute prohibiting advertising was unconstitutional. The court upheld the statute's constitutionality, but remanded the case to the Board for specific findings on whether the drugs advertised were, in fact, dangerous or narcotic drugs. ³ See 85 Dauph. 174 (1966). The Board held further hearings and did find that certain of the advertised drugs ⁴ were 'dangerous drugs' within the meaning of the statute. ⁵ These findings were affirmed in part by the Court of Common Pleas of Dauphin County, ⁶ and the revocation Our adjudication begins with an acknowledgement that the day has long passed when the Due Process Clause of the Fourteenth Amendment could be used to indiscriminately strike down state economic regulatory statutes. It is certainly clear that the 'vague contours' of due process, see Adkins v. Children's Hospital, 261 U.S. 525, 567, 568, 43 S.Ct. 394, 405, 67 S.Ct. 785 (1923) (Holmes, J., dissenting), cannot be employed to engulf a State's efforts to, for example, set minimum hours for work, see Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), or set minimum wages for children, see Adkins v. Children's Hospital, supra, or prohibit employment agencies from collecting fees from employees, see Adams v. Tanner, 244 U.S. 590, 37 S.Ct. 662, 61 L.Ed. 1336 (1917). In a long line of cases, see Day-Brite Lighting v. Missouri, 342 U.S. 421, 423, 72 S.Ct. 405, 407, 96 L.Ed. 469 (1952) (citing cases), the Supreme Court of the United States has 'returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.' Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963). 'Deference to the legislative judgment' is now the federal watchword, see Daniel v. Family Security Life Insurance Co., 336 U.S. 220, 224 n.4, 69 S.Ct. 550, 553 n.4, 93 L.Ed. 632 (1949); United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 783, 82 L.Ed. 1234 (1938). 'It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.' Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955). See also Adams v. Tanner, 244 U.S. 590, 599--600, 37 S.Ct. 662, 665, 666, 61 L.Ed. 1336 (1917) (Brandeis, J., dissenting).

was reduced to a six month suspension. See 88 Dauph. 273 (1967). An appeal to the Superior Court resulted in a per curiam affirmance without opinion, Judge Hoffman filing a dissenting opinion setting forth his view that the statute is unconstitutional. See 213 Pa.Super. 227, 228--38, 247 A.2d 651, 652--656 (1968). We granted allocatur. ⁷

While this test may mean that in the federal courts the 'due process barrier to substantive legislation as to economic matters has been in effect removed,' ⁸ the same cannot be said with respect to state courts and state constitutional law. This difference between federal and state constitutional law represents a sound development, one which takes into account the fact that 'state courts may be in a better position to review local economic legislation than the Supreme Court. State courts, since their precedents are not of national authority, may better adapt their decisions to local economic conditions and needs. * * * And where an industry is of basic importance to the economy of a state or territory, extraordinary regulations may be necessary and proper. Hetherington, State Economic Regulation and Substantive Due Process of Law, 53 Nw.U.L.Rev. 226, 250 (1958) (footnote omitted).

Thus Pennsylvania, like other state 'economic laboratories,' see New State Ice Co. v. Liebmann, 285 U.S. 262, 280, 311, 52 S.Ct. 371, 375, 387, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting), has scrutinized regulatory legislation perhaps more closely than would the Supreme Court of the United States. ⁹ We have held unconstitutional Through all these cases we have been guided by the proposition that 'a law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained.' Gambone v. Commonwealth, 375 Pa. at 551, 101 A.2d at 637. It is with this test, and the above principles, in mind that we now move to consider the constitutionality of the instant statute.

for example, an act regulating car rental agencies as a public utility, see 359 Pa. 25, 58 A.2d 464 (1948), an act forbidding 359 Pa. 258 58 A.2d 464 (1948), an act forbidding gasoline stations from displaying price signs in excess of a certain prescribed size, see Gambone v. Commonwealth, 375 Pa. 547, 101 A.2d 634 (1954), an act forbidding the sale of carbonated beverages made with sucaryl, see Cott Beverage Corp. v. Horst, 380 Pa. 113, 110 A.2d 405 (1955), ¹⁰ an act forbidding the sale of ice-milk milk shakes, see Commonwealth ex rel. Woodside v. Sun Ray Drug Co., 383 Pa. 1, 116 A.2d 833 (1955), and an act forbidding nonsigners from selling fair traded items below the price specified in price maintenance contracts, see Olin Mathieson Chemical Corp. v. White Cross Stores, Inc., 414 Pa. 95, 199 A.2d 266 (1964).

Regulating the advertising of retail drugs is by no means unique to Pennsylvania. The federal government, for example, has regulations pertaining to advertising prescription drugs, although there is no prohibition on advertising the prices of such drugs. See 21 C.F.R. 1.105. In addition, several states have statutes similar to Pennsylvania's, forbidding pharmacists from advertising the prices of prescription drugs. ¹¹ Two court decisions have been reported sustaining such provisions: Patterson Drug Co. v. Kingery, 305 F.Supp. 821 (W.D.Va.1969) (three-judge court), and Supermarkets General Corporation v. Sills, 93 N.J.Super. 326, 225 A.2d 728 (1966); in one state the provision has been held unconstitutional: Florida 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). Nor is the pharmaceutical profession the only one in which price advertising is forbidden. Optometrists, for example, are also forbidden from engaging in such advertising, see the Act of May 18, 1956, P.L. 1631, § 2, 63 P.S. § 237, and we have sustained this prohibition, see Ullom v. Boehm, 392 Pa. 643, 142 A.2d 19 (1958).

The Commonwealth, and amici, urge that we uphold the instant prohibition. ¹² The following reasons are given: 1) By prohibiting the advertisement of narcotics and dangerous drugs, we can help keep them out of the public eye, thus diminishing their use. 2) Price advertising, by encouraging consumers to 'shop around,' increases the possibility that an individual will no longer use only one pharmacy. Thus the pharmacist will no longer be able to 'monitor' prescriptions to determine whether the consumer is taking antagonistic drugs. 3) Price advertising may encourage small retailers to buy unusually large quantities of drugs, so as to obtain a lesser price. As a result, drugs may stay on the pharmacist's shelf for an extended period of time during which they may deteriorate. Examining each reason in turn, however, we will find that none meet the test set out The first reason--diminishing the demand for, and use of, dangerous drugs--is the reason primarily relied upon by the Commonwealth, as well as the trial court: '(T)he promotion and advertising of dangerous drugs and narcotics would certainly to a degree titillate an aberrant person and create an atmosphere of easy availableness.' State Board v. Pastor, 85 Daup. 174, 179 (1966). No one can quarrel with this goal, but closer examination does not demonstrate that the advertising prohibition bears a substantial relation to it.

in Gambone, supra: Whether the means employed--the prohibition of retail price advertising of prescription drugs--bears a 'substantial relation to the objects sought to be obtained.'

The sale of 'dangerous drugs' is a closely supervised business. All dangerous drugs must be dispensed, if at all, by a prescription, ¹³ and a prescription, by definition, may only be issued by a duly licensed medical practitioner, see the Pharmacy Act, 63 P.S. § 390--2(8), (9). Thus it is the physician, not the consumer, who determines what 'dangerous drugs' may be purchased. Further, the sale of a dangerous drug without a prescription is a prohibited act, see the Drug, Device and Cosmetic Act, 35 P.S. §...