Proprietary Ass'n v. Board of Pharmacy, A--129

• Decision Date: 21 June 1954
• Docket Number: No. A--129,A--129
• Citation: 16 N.J. 62,106 A.2d 272
• Parties: PROPRIETARY ASS'N et al. v. BOARD OF PHARMACY et al.
• Court: New Jersey Supreme Court

Page 62

16 N.J. 62

106 A.2d 272

PROPRIETARY ASS'N et al. v. BOARD OF PHARMACY et al.

No. A--129.

Supreme Court of New Jersey.

Argued May 3, 1954.

Decided June 21, 1954.

Joseph H. Stamler, Sp. Deputy Atty. Gen., for appellants (Grover C. Richman, Jr., Atty. Gen., attorney).

James F. Hoge, of the New York Bar, New York City, for respondents (Thomas J. Brogan, Jersey City, Atty., George M. Chapman and William F. Weigel, of the New York Bar, New York City, of counsel).

The opinion of the court was delivered by

JACOBS, J.

The Law Division granted, Inter alia, the plaintiffs' prayer for a declaratory judgment defining the phrase 'patent or proprietary medicines' in R.S. 45:14--29, N.J.S.A. See 27 N.J.Super. 204, 99 A.2d 52 (1953). The appeal taken by the defendants to the Appellate Division was certified to this court under R.R. 1:10--1.

New Jersey's Pharmacy Act (R.S. 45:14--1 et seq., N.J.S.A.) directs that drugs, medicines and poisons shall be sold only under the personal supervision of a registered pharmacist, but contains an express exception in favor of the making and vending of nonpoisonous patent or proprietary medicines. See R.S. 45:14--29, N.J.S.A. Unlike modern statutes in many other states it contains no legislative definitions or listings of illustrative patent or proprietary medicines. Heretofore our courts have had occasion to determine whether particular items came within the restrictive provisions of the act or within the general exception; in each instance the court exercised its judicial function in traditional fashion by passing upon the actual case before it without more. Thus in Crescent Bottling Works v. Board of Pharmacy, 121 N.J.Eq. 237, 189 A. 57 (E. & A.1937), 'Duke's Magnesia Citro-Tartrate' was held to be a drug or medicine which was outside the statutory exception; in Board of Pharmacy v. Hutchin, 160 A. 214, 10 N.J.Misc. 641 (Sup.Ct.1932), essence of peppermint and sweet spirits of nitre were held to be medicines saleable only under the supervision of a pharmacist; in Kratky v. Board of Pharmacy, 147 A. 726, 7 N.J.Misc. 970 (Sup.Ct.1929), there was a similar holding with respect to camphorated oil and essence of peppermint; and in Board of Pharmacy v. Abramoff, 141 A. 587, 6 N.J.Misc. 437 (Sup.Ct.1928), camphorated oil in closed containers bearing the imprint of a licensed pharmacist was held to be not saleable by a grocer or other ordinary tradesman. In Board of Pharmacy v. Braunstein, 2 N.J.Misc. 545 (Sup.Ct.1924), the imposition of a penalty upon a grocer for selling tincture of iodine was sustained; and in Board of Pharmacy v. Morhauser, 96 N.J.L. 16, 114 A. 552 (Sup.Ct.1921), a penalty for the sale of 'Lysol' in premises not supervised by a pharmacist was likewise sustained. In Board of Pharmacy v. Quackenbush, 39 A.2d 28, 22 N.J.Misc. 334 (C.P.1940), 'Vitamin Plus' was held by Judge Davidson to be a food rather than a medicine and therefore saleable in the defendant's department store; but see Culver v. Nelson, 237 Minn. 65, 54 N.W.2d 7 (1952), where the Minnesota Supreme Court held that the vitamins at issue before it were neither ordinary foods nor proprietary medicines but were medicines saleable only under the supervision of pharmacists.

Notwithstanding the foregoing, the plaintiffs in the instant matter chose not to seek any adjudication with respect to any particular item; on the contrary, they simply prayed that the court define the meaning of 'patent medicines,' 'proprietary medicines' and 'domestic remedies,' although the prayer with respect to 'domestic remedies' was later withdrawn. In its opinion (27 N.J.Super., at page 218, 99 A.2d at page 59) the Law Division defined patent and proprietary medicines to mean:

'Completely compounded packaged drugs, medicines and non-bulk chemicals which are held out for sale and sold by or under the authority of the proprietor thereof directly to the general public and the packages of which drugs, medicines and non-bulk chemicals bear, or are accompanied by, printed matter specifying affections, symptoms or purposes for which the remedies are recommended and the directions for their use, and with respect to which ownership is claimed or asserted by the proprietor thereof as to name, composition or process of manufacture, by secrecy, patent, trademark, copyright, or in any other manner which may be the basis for legal action by the proprietor with respect to said drugs, medicines and non-bulk chemicals in any of the courts of this state.'

The defendants contend that this definition gives rise to uncertainties and controversies which will entail new and extensive litigation, and they point to conflicting opinions among the plaintiffs' own witnesses as to whether particular items fall within the definition as originally proposed by the plaintiffs and as largely adopted by the Law Division. We incline to the view that the definition is so sweepingly broad as to embrace all drugs and medicines sold directly to the general public so long as they are compounded and packaged in original containers which bear specifications of their purposes and directions for their use and the private labels of their manufacturers or distributors. Thus viewed, it would nullify earlier court decisions such as Crescent Bottling Works v. Board of Pharmacy, supra, where Duke's Magnesia Citro-Tartrate was held to be an adulteration of milk of magnesia and saleable only under the supervision of pharmacists; it is hardly conceivable that any such legislative purpose may be gleaned from R.S. 45:14--29, N.J.S.A., which, although a revision of earlier legislation, was enacted in December 1937, after the court decisions were rendered. In any event, we are satisfied that under the particular circumstances presented, the Law Division should not have rendered its definition and, indeed, should not have rendered any general definition unrelated to a particular item involved in a case or controversy requiring adjudication. Cf. N.J.S. 2A:16--61, N.J.S.A.; Johnston v. Board of Adjustment, Westfield, 118 N.J.L. 298, 300, 192 A. 457 (Sup.Ct.1937); Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 243, 73 S.Ct. 236, 97 L.Ed. 291, 296 (1952); Wisconsin Pharmaceutical Ass'n v. Lee, 264 Wis. 325, 58 N.W.2d 700 (Sup.Ct.1953). The important underlying problems are legislative in nature and new enactments which clearly fix our State's current social policies and embody adequate definitions are urgently needed. In the meantime, however, our courts ought to confine themselves in this field to their customary function of deciding particular cases involving such individual items as may, from time to time, properly be presented for adjudication.

The record contains considerable testimony bearing on the issue as to whether the sale of drugs in original containers bearing private trade names or labels and instructions for their use should be confined to pharmacies. The defendants point out that all pharmacists have formal education and training, are obliged to meet minimum standards not only with respect to their educational training but also with respect to their drug stores, and are equipped to identify the ingredients of drugs, to answer appropriate inquiries, and to furnish cautionary information and advice. They contrast this with ordinary retail tradesmen who need have no formal training or education and who might not be equipped to read or understand labels on packaged drugs which may contain special instructions for their keeping, important expiration dates, or listings of ingredients under unfamiliar terminology.

On the other hand, the plaintiffs contend that completely packaged medicines bearing private trade names or labels and proper directions for their use may, from society's point of view, be sold just as well in ordinary retail stores as in drug stores having pharmacists in charge. They refer, as did the Law Division, to decisions such as State v. Donaldson, 41 Minn. 74, 42 N.W. 781 (1889), where the Supreme Court of Minnesota in holding that 'Ayer's Sarsaparilla' and 'Fellows' Compound Syrup of Hypophosphites' were patent or proprietary medicines saleable anywhere, said that no skill or science was called for on the part of the seller; that any one could make the sale so long as he could 'read the label on the package and make change with the purchaser'; and that the articles could as properly 'be sold by a grocer or drygoods merchant' as by a pharmacist. This view may be contrasted, however, with those expressed in later opinions of the same court. See State v. Zotalis, 172 Minn. 132, 214 N.W. 766 (Sup.Ct.1927); State v. F. W. Woolworth Co., 184 Minn. 51, 237 N.W. 817, 76 A.L.R. 1202 (Sup.Ct.1931); Culver v. Nelson, supra. In the Zotalis case the court held that aspirin in a container bearing a label stating that it held five-grain aspirin tablets, that a does was one or two tablets, and that it was distributed by a designated laboratory and chemical company of Minneapolis, was not a 'proprietary or patent medicine' and was saleable only in pharmacies. In the course of its opinion the court acknowledged that no technical skill was required in making the sale but pointed out that 'the pharmacist knows where to procure a pure and genuine article.' In the Woolworth case the court held that milk of magnesia manufactured by Sykes-Rigney Company of Philadelphia could not be sold in the defendant's retail general store in Minneapolis where no licensed pharmacist was employed. In discussing the role of the pharmacist in the sale of drugs and medicines in the original packages of the manufacturer, the court said (184 Minn. 51, 237 N.W. 819):

'But the examination of the quality of medicines sold is not the sole purpose of having a pharmacist in charge. Many poisonous drugs and medicines may be sold in original packages. The pharmacist knows what drugs are poisonous. He is required to keep a record of sales of numerous poisonous preparations. If...