Youngs Drug Products Corp. v. Bolger
| Decision Date | 07 October 1981 |
| Docket Number | Civ. A. No. 80-1165. |
| Citation | 526 F. Supp. 823 |
| Parties | YOUNGS DRUG PRODUCTS CORP., Plaintiff, v. William F. BOLGER, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Francis J. O'Toole, Henry A. Hubschman, Washington, D. C., Jerold S. Solovy, Robert L. Graham, Christopher L. Varner, Frances H. Krasnow, Jenner & Block, Chicago, Ill., for plaintiff.
Asst. U. S. Atty. John D. Bates, Washington, D. C., for defendants.
The plaintiff manufactures, sells, and distributes contraceptive products, marketing them through sales to wholesale distributors and chain warehouses for resale to retail pharmacists. It publicizes the desirability and availability of its product line by means of a sales force, and advertisements in trade publications and popular magazines of nationwide distribution. However, the plaintiff has apparently found its marketing strategy insufficient to reach many of its potential customers. Plaintiff now seeks to supplement its "mix" of marketing tools by arranging promotional activities in conjunction with its wholesalers and retailers. The proposed promotional activities relevant to this case are efforts to mail to the public, on an unsolicited basis, three types of mailings. One type is informational pamphlets promoting the desirability and availability of prophylactics in general, and Youngs' products in particular. The second type is flyers exclusively or substantially devoted to promoting prophylactics in general, those made by Youngs, and/or those stocked (and perhaps discounted) by a particular drugstore or chain of drugstores. The third type is multi-page, multi-item flyers mailed out by a drugstore or chain and promoting a large variety of products available and perhaps on discount there, including prophylactics. The plaintiff, its wholesalers and retailers seek to send both types of flyers not just to a drugstore's already-known customers, but to the public.
Youngs has submitted samples of the flyers and promotional materials sought to be mailed. See Exhibit C. There is no dispute that the materials at issue in this case are tasteful expressions on a subject matter that obviously could lend itself to communications that some would find offensive.1 However, in this case, not only are the materials not obscene, there is no suggestion that they treat the subject matter of the desirability and availability of contraceptive products in a pandering, suggestive, or graphic way. Accordingly, the Court's opinion is limited to materials similar to those submitted by the plaintiff.
Youngs' proposed promotional campaign clashes with the clear express language of 39 U.S.C. § 3001(e), which reads in full:
Youngs' promotional campaign also conflicts with Postal Service regulations interpreting the reach of the statute. Section 123.434 of the Domestic Mail Manual reads, in pertinent part:
Unsolicited advertisements for articles or things which are designed, adapted or intended for preventing conception are nonmailable, except ... when the mailer has no commercial interest in any such item.2
In early 1979, the Postal Service traced an allegation of an unsolicited mailing of advertisements for contraceptive products to the Ketchum Drug Company of New York City, a wholesaler of Youngs' product line. The Service warned Ketchum that the mailing violated the statute. Youngs and Ketchum noted in letters to the Service their view that under Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), the Service could not constitutionally restrict the mailing of a drugstore circular listing on the back page a notice that the pharmacy carried prophylactics, with quantities and prices. The letter further stated that "this circular lists many many items and TROJAN is just one among many traditional drugstore items listed." At that time Youngs also furnished the Service with a copy of a flyer devoted exclusively to promoting contraceptives on sale at $5.49 at a particular drugstore, and requested the Service's legal opinion on the mailability of both types of flyers, as well as of promotional pamphlets. The Service rejected the view of Youngs and Ketchum in a letter of February 15, 1980. A reasonable reading of that letter is that it addressed all three types of mailings with respect to which there had been recent correspondence between Youngs and the Service, stating the Service's position that the mailing on an unsolicited basis of both types of flyers, as well as promotional pamphlets, would violate 39 U.S.C. § 3001(e). Thereafter, the plaintiff filed this action, claiming that the statute in question unconstitutionally violates the First, Fifth and Ninth Amendments to the United States Constitution, and that Youngs and Ketchum were refraining from distributing advertisements mentioning, promoting or explaining Youngs' products because of the Service's warning. On July 10, 1981 the Court denied Youngs' motion for a preliminary injunction.3
The Court concludes that the statute in question, by its plain language, prohibits all three types of mailings in this case.4 Hence, the Court must reach the issue of the constitutionality of the statute as applied to these mailings, in particular, whether the absolute statutory ban on all three types of mailings violates the First Amendment.
The Court notes the opinion in Associated Students, supra, which held the statute at issue unconstitutional as applied to mailers who seek to inform addressees, on an unsolicited basis, about the desirability and availability of birth control devices and practices, but have no personal economic interest in doing so. As noted above, the Service has acquiesced in that interpretation.
That case set forth various points concerning the constitutionality of the statute that bear repeating here. First, the statute constitutes a prior restraint of expression, against the constitutional validity of which there is a "heavy presumption." Associated Students, supra at 21 (citing, inter alia, Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963)). Second, "the use of the mails is an important and necessary element of the First Amendment right to free speech...." Id. (citing, inter alia, Blount v. Rizzi, 400 U.S. 410, 416, 91 S.Ct. 423, 428, 27 L.Ed.2d 498 (1971)). Third, "the prohibition of unsolicited, mailed information about contraceptives ... denies to many persons the knowledge, otherwise lacking, necessary to enable them to make an informed decision as to whether to bear children," an outcome which is troubling from the point of view of constitutional law since, under the holdings of Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) and Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), "individuals have a fundamental right to privacy and personal choice in matters of sex and family planning ... encompassing ... the decision regarding whether and what types of methods of contraception and family planning may be used to prevent conception." Associated Students at 22. The final relevant point from that opinion is its conclusion that, applying the law to the "unsolicited advertisement" language of the statute in question, "the only reasonable interpretation which ... will preserve the constitutionality of the statute, is one which recognizes the inherent difference between commercial solicitation on one hand and informative editorializing on the other." Id. at 23.
In this case all three types of proposed mailings are commercial solicitations. Accordingly, this Court must consider this case not only in the light of the considerations that formed the basis of the Associated Students opinion, but, more importantly, within the framework set forth by the Supreme Court for commercial speech cases. Moreover, the issue in this case is complicated further because, while on the one hand, this mailer, because of its commercial interest, has less freedom than the Associated Students mailers from regulation of its efforts to communicate with the public as it sees fit, on the other hand, these mailings, particularly the flyers, appear to be less explicit and less potentially offensive to sensitive addressees than was the detailed booklet on birth control and abortion practices and resources in Associated Students.
In a series of cases from the last few years, the Supreme Court has made clear that commercial speech enjoys First Amendment protection. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 ...
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Bolger v. Youngs Drug Products Corp
...truthful information bearing on their ability to discuss birth control and to make informed decisions in this area. Pp. 70-75. 526 F.Supp. 823 (1981), David A. Strauss, Washington, D.C., for appellants. Jerold S. Solovy, Chicago, Ill., for appellee; Robert L. Graham and Laura A. Kaster, Chi......