United Pharmacal Co. v. Mo Bd. of Pharmacy
| Decision Date | 19 December 2006 |
| Docket Number | No. SC 87316.,SC 87316. |
| Citation | 208 S.W.3d 907 |
| Parties | UNITED PHARMACAL COMPANY OF MISSOURI, INC., Appellant, v. MISSOURI BOARD OF PHARMACY, Respondent. |
| Court | Missouri Supreme Court |
R. Dan Boulware, R. Todd Ehlert, Sharon Kennedy, St. Joseph, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Sharon K. Euler, Asst. Atty. Gen., Kansas City, for Respondent.
Is the retail sale of veterinary drugs the "practice of pharmacy" regulated by the state board of pharmacy?
The state board of pharmacy administers and enforces the statutes and regulations relating to licensing and regulation of pharmacists and pharmacies. Sections 338.110 and 338.140.1 United Pharmacal Company of Missouri is a retail store that sells animal feeds and products.
For about 20 years, United Pharmacal has also sold federal legend drugs—i.e., prescription drugs—to consumers who have prescriptions from veterinarians for treatment of their animals. United Pharmacal does not sell or dispense drugs for human use. The company has engaged in this practice without a license from the pharmacy board and does not employ a licensed pharmacist.
In 1994 and 1997, the pharmacy board investigated United Pharmacal for selling animal legend drugs without a pharmacy license, each time taking no action. In 2000, however, a board staff member undertook a third investigation of United Pharmacal. The staff member concluded that this conduct is the practice of pharmacy, in violation of the Missouri Pharmacy Practices Act, chapter 338.
Based on this investigation, the pharmacy board issued a "Cease and Desist Warning" letter to United Pharmacal, declaring that the company's practices constituted the "practice of pharmacy" without a license in violation of sections 338.010.1 and 338.220. The letter ordered United Pharmacal to stop selling animal legend drugs to consumers without a pharmacy license and informed the company that violating the Act also constituted a crime.
In response, United Pharmacal filed a declaratory judgment action in the circuit court of Buchanan County seeking a declaration that the pharmacy board engaged in improper rulemaking and that the pharmacy board did not have authority to regulate United Pharmacal's activity. This Court held that venue was improper in Buchanan County, vacated the trial court's judgment, and remanded the case for transfer to the Cole County Circuit Court. United Pharmacal Company of Missouri, Inc. v. Missouri Board of Pharmacy, 159 S.W.3d 361, 363 (Mo. banc 2005).
On remand, United Pharmacal amended its petition requesting a declaration that the Act does not grant the pharmacy board the authority to regulate the retail sale of veterinary prescription drugs. United Pharmacal also argued that, if the circuit court determined the act regulated this activity, it would be unconstitutionally vague. United Pharmacal moved for summary judgment. The circuit court denied the motion and entered judgment, holding that the sale of veterinary legend drugs is within the pharmacy board's regulatory powers because it is "the practice of pharmacy." United Pharmacal appeals.
Because this action involves the validity of a statute, this Court has exclusive appellate jurisdiction. Mo. Const. art. V, section 3.
United Pharmacal presents two arguments on appeal: first, that the circuit court erred in holding that the retail sale of veterinary prescription drugs used for treating animals constitutes "the practice of pharmacy" under the Act; and, second, that the Act, as construed by the circuit court, violates due process because it is unconstitutionally vague and it fails to inform persons of ordinary intelligence that the retail sale of veterinary prescriptions drugs to consumers for use in animals is the "practice of pharmacy." This Court reviews this question of law de novo. Smith v. Shaw, 159 S.W.3d 830, 832 (Mo. banc 2005).
This controversy can be resolved by reading the statute. It is unnecessary to reach United Pharmacal's constitutional challenge.
The statutory language guides this Court's analysis. The goal of statutory analysis is to ascertain the intent of the legislature, as expressed in the words of the statute. American Healthcare Management, Inc. v. Director of Revenue, 984 S.W.2d 496, 498 (Mo. banc 1999) (citing Hyde Park Housing Partnership v. Director of Revenue, 850 S.W.2d 82, 84 (Mo. banc 1993)). This goal is achieved by giving the language used its plain and ordinary meaning. Id. When the legislative intent cannot be determined from the plain meaning of the statutory language, rules of statutory construction may be applied to resolve any ambiguity. Bosworth v. Sewell, 918 S.W.2d 773, 777 (Mo. banc 1996).
Section 338.010, defining the "practice of pharmacy," provides in relevant part:
1. The "practice of pharmacy" shall mean the interpretation and evaluation of prescription orders; the compounding, dispensing and labeling of drugs and devices pursuant to prescription orders; the participation in drug selection according to state law and participation in drug utilization reviews; the proper and safe storage of drugs and devices and the maintenance of proper records thereof; consultation with patients and other health care practitioners about the safe and effective use of drugs and devices; and the offering or performing of those acts, services, operations, or transactions necessary in the conduct, operation, management and control of a pharmacy. No person shall engage in the practice of pharmacy unless he is licensed under the provisions of this chapter. . . . This chapter shall also not be construed to prohibit or interfere with any legally registered practitioner of medicine, dentistry, podiatry, or veterinary medicine, or the practice of optometry in accordance with and as provided in sections 195.070 and 336.220, RSMo, in the compounding or dispensing of his own prescriptions. (Emphasis added).
Section 338.210, defining "pharmacy," is also relevant to this Court's analysis. It provides in part:
1. Pharmacy refers to any location where the practice of pharmacy occurs or such activities are offered or provided by a pharmacist or another acting under the supervision and authority of a pharmacist, including every premises or other place:
(1) Where the practice of pharmacy is offered or conducted;
(2) Where drugs, chemicals, medicines, prescriptions, or poisons are compounded, prepared, dispensed or sold or offered for sale at retail;
(3) Where the words "pharmacist", "apothecary", "drugstore", "drugs", and any other symbols, words or phrases of similar meaning or understanding are used in any form to advertise retail products or services;
(4) Where patient records or other information is maintained for the purpose of engaging or offering to engage in the practice of pharmacy or to comply with any relevant laws regulating the acquisition, possession, handling, transfer, sale or destruction of drugs, chemicals, medicines, prescriptions or poisons.
. . . . .
The pharmacy board asserts that United Pharmacal's sale of veterinary legend drugs constitutes "the dispensing" of drugs that require a prescription and, therefore, is the "practice of pharmacy" under section 338.010. Under the board's analysis, United Pharmacal would also qualify as a pharmacy under section 338.210. The board argues that section 338.010 applies to any entity that dispenses prescription drugs, and since the statute does not specifically exempt the sale of veterinary drugs, United Pharmacal's activity is regulated under the Act.
United Pharmacal maintains that its activity is not regulated because the Act does not expressly empower the pharmacy board to regulate the sale of drugs for animal use pursuant to veterinary prescriptions. United Pharmacal relies on section 338.010's inclusion of "consultation with patients and other health care practitioners" as the practice of pharmacy, arguing that this demonstrates a legislative intent to limit the Act's scope to drugs dispensed for human use. United Pharmacal bolsters its argument by pointing to other portions of the Act, specifically to section 338.220, which contains a list of eleven classifications for pharmacy licenses, none of which applies to persons or businesses engaged in the retail sale of veterinary drugs.2
These arguments highlight the statute's ambiguity. Both parties' arguments are supported by parts of section 338.010. For example, section 338.010 can be construed broadly, as the pharmacy board suggests, to encompass the sale of all prescription drugs because it does not exempt veterinary drugs. Because "drug" is not defined in the statute, its meaning is ascertained from the dictionary definition. One definition of "drug" is "a substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animal." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1993). This definition supports the board's contention that veterinary drugs are within the Act.
Despite this definition, the statute does not expressly state that veterinary drugs are covered under the statute. There is no express language giving the pharmacy board authority to regulate United Pharmacal's activity. Internal ambiguity also results from section 338.010's reference to "consultation with patients" as the "practice of pharmacy." This language appears to limit the scope of the statute to human patients, notably because of the "consultation" language and based on the dictionary definition of "patient"—"a sick individual esp. when awaiting or under the care and treatment of a physician or surgeon," or "a client for medical service (as of a physician or dentist)." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1993). This definition of "patient" suggests that the statute is limited to drugs dispensed for human use.
Section 338.010 creates further ambiguity by providing an...
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