The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5192

May 12, 1977

STATE BOARD OF PHARMACY:

Promotion of prescription drugs.

DRUGGISTS:

Promotion of prescription drugs.

ADMINISTRATIVE LAW AND PROCEDURE:

Rule defining promotion.

WORDS AND PHRASES:

Promotion.

CONSTITUTION OF UNITED STATES:

First Amendment.

The rule promulgated by the State Board of Pharmacy prohibiting an advertisement offering price reductions on prescription drugs for a limited period of time is invalid.

Mr. Carl E. Cross, Jr.

Executive Secretary

State Board of Pharmacy

1033 South Washington Avenue

Lansing, Michigan 48926

You have asked for my opinion of whether the State Board of Pharmacy may enforce 1954 Administrative Code, 1976 AACS, R 338.495(3)(c), with respect to the following types of advertisements by a pharmacist:

1. An advertisement which offers a price reduction on certain prescription drugs for a limited period of time.

2. An advertisement which contains coupons for obtaining certain prescription drugs at a reduced price for a limited period of time.

3. An advertisement which offers customers a premium upon the filling of a new prescription.

The pharmacy act, 1962 PA 151; MCLA 338.1101 et seq; MSA 14.757(1) et seq, Sec. 15(1)(e), provides:

'The board may withhold, revoke, or suspend a license or certificate of registration issued under this act after giving reasonable notice and an opportunity to be heard to a person who has:

''(e) Promoted to the public in any manner a drug which may only be dispensed pursuant to a prescription.' (Emphasis added)

The controlled substances act of 1971, 1971 PA 196, as amended; MCLA 335.301 et seq; MSA 18.1071(1) et seq, Sec. 34(1)(d), provides as follows:

'A registration . . . to manufacture, distribute, prescribe or dispense a controlled substance may be denied, suspended or revoked by the administrator upon a finding of any of the following pertaining to an applicant for registration or a registrant:

''(d) He has promoted to the general public in any manner any controlled substance.' (Emphasis added)

Pursuant to those provisions, 1976 AACS, R 338.495 was promulgated by the State Board of Pharmacy to define the statutory term 'promoted.' 1976 AACS, R 338.495(3)(c), the pertinent part of that rule, provides as follows:

'Promotion includes, without limitation, the following:

''(c) A presentation to the general public of a prescription drug or device which contains coupons or expressions such as: 'special', 'this week only', 'limited offer', or any other inducement to create an urgent demand for a specific prescription drug or device.'

After 1976 AACS, R 338.495(3)(c) was promulgated, the United States Supreme Court considered the constitutionality of statutory restrictions on prescription drug price advertising in Virginia State Board of Pharmacy v Virginia Citizens Consumer Council, Inc, 425 US 748, 766; 96 S Ct 1817, 1828; 48 L Ed 2d 346, 361 (1976). The case involved a consumer challenge to a Virginia statute which declared it unprofessional conduct for a pharmacist to advertise the prices of prescription drugs and the court held that the statutory prohibition against prescription drug price advertising was unconstititional.

This decision, however, does not completely resolve the question since 1976 AACS, R 338.495 permits price advertising per se, but prohibits promotional advertising designed 'to create an urgent demand for a specific prescription drug.' Thus, it is still necessary to determine whether the limited restriction on price advertising is permissible.

It may first be noted that the promulgation of 1976 AACS, R 338.495(3)(c) is based upon an assumption that creation of an 'urgent demand' would lead to abuse of drugs contrary to the public health, safety and welfare. Although not raised by the parties, a similar point was considered by the court in Virginia, supra:

'An argument not advanced by the Board, either in its brief or in the testimony proffered prior to summary judgment, but which on occasion has been made to other courts, see, e.g., Pennsylvania State Board of Pharmacy v Pastor, 441 Pa 186, 272 A2d 487 (1971), is that the advertisement of low drug prices will result in overconsumption and in abuse of the advertised drugs. The argument prudently has been omitted. By definition, the drugs at issue here may be sold only on a physician's prescription. We do not assume, as apparently the dissent does, that simply because low prices will be freely advertised, physicians will overprescribe, or that pharmacists will ignore the prescription requirement.'

In Pennsylvania State Board of Pharmacy v Pastor, 441 Pa 186, 193-195; 272 A2d 487, 492 (1971), the case cited by the Supreme Court, the Pennsylvania Supreme Court stated:

'The sale of 'dangerous drugs' is a closely supervised business. All dangerous drugs must be dispensed, if at all, by a prescription, and a prescription, by definition, may only be issued by a duly licensed medical practitioner, see the Pharmacy Act, 63 P.S. Sec. 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. Sec. 780-4(x), which can subject the pharmacist to criminal penalties, see 35 P.S. Sec. 780-20, as well as the loss of his pharmacy license, see the Pharmacy Act, 63 P.S. Sec. 390-5.

'Therefore, to urge that allowing price advertisements of prescription drugs would increase the use of such drugs, one must assume either a) that partients are able to pressure doctors into prescribing drugs for them, or b) that pharmacists are willing to risk selling such drugs without a prescription. We think neither assumption valid. As the Supreme Court of Florida stated in a case striking down as unconstitutional a rule prohibiting price advertising of prescription drugs:

"The rule proceeds on the notion that the advertisement of a prescription drug will subject the physicians to some sort of irresistible pressures that will force them to prescribe drugs for their patients simply on the basis of patient demand and without regard to the physical well-being of the patient. This concept disregards completely the professional and ethical integrity of the medical profession in prescribing remedies for patients. Furthermore, it actually suggests the probability of unethical conduct.'

'Stadnik v Shell's City, Inc., 140 So2d 871, 875 (Fla. 1962).'

Also see Terry v California State Board of Pharmacy, 395 F Supp. 94 (1975), aff'd, 426 US 913; 96 S Ct 2617; 49 L Ed 368 (1976).

In Michigan, as in Virginia, Pennsylvania, Florida and California pharmacists may not dispense prescription drugs without a prescription and physicians may not precribe prescription drugs absent a proper medical purpose. A physician or pharmacist who does otherwise faces loss of professional licensure and possible criminal penalties. In view of those safeguards, concern over creating an artificial demand for prescription drugs is insufficient to support a restriction on otherwise constitutionally protected free speech.

In conclusion, it is my opinion that 1976 AACS, R 338.495(3)(c) is unconstitutional as an impermissible infringement on the United States Constitution first amendment rights of free speech enjoyed by pharmacists and their prospective customers.

Frank J. Kelley

Attorney General