Revco Southeast Drug Centers, Inc. v. North Carolina Board of Pharmacy , 21 N.C. App. 156 ( 1974 )

CARSON, Judge.

The summary judgment entered by the trial court contained extensive findings of fact and three conclusions of law. To summarize the conclusions of law, the court held as follows: 1. That G.S. 90-57.1 did not grant authority to the Board to regulate the advertising of prescription drugs. 2. That even if the statute did authorize the Board to adopt regulations concerning advertising, it was unconstitutional as an unlawful delegation of legislative power without sufficiently clear standards and guidelines. 3. Even if the legislature did authorize the Board to regulate advertising, and even if such delegation of authority were valid, that the Code was in violation of the North Carolina Constitution and the United States Constitution because there was no substantial, rational relationship to the public health or safety or the general welfare. Based on the findings of fact and the above cited conclusions of law, the court held that Section 8 of the Code is invalid and inoperative and of no force and effect.

We hold that the third conclusion of law entered by the trial court was erroneous. While the plaintiffs had alleged that there was no rational or substantial relationship to the public health and welfare, the defendant in its answer denied this allegation. The defendant further introduced into evidence statements in opposition to the motion for summary judgment. One of these affidavits was from the Dean of the School of Pharmacy at the University of North Carolina at Chapel Hill, and the other was from the Secretary-Treasurer of the North Carolina Board of Pharmacy. Each of these two affidavits stated that restriction of advertising of prescription drugs was in the public interest. A factual dispute was put forth by the pleadings and the affidavits, and it should have been resolved by the court or a jury as appropriate. In any event it was not a subject for summary judgment.

The next question presents a more substantial problem. Assuming, without deciding, that the General Assembly can prohibit the advertising of prescription drugs or special treatment to a class of persons in the selling or administering of said drugs, we are confronted with the question of whether this authority may be delegated to an administrative agency such as the Board of Pharmacy. In the case of State v. Harris, 216 N.C. 746, 6 S.E. 2d 854 (1940), our Supreme Court held that legislative standards must be the guides for administrative agencies in setting forth rules and regulations. There, a dry-cleaning board was established to promulgate whatever rules and regulations it decided to be related to public health, safety, and welfare of the people. In that case, at page 754, it was held that:

In licensing those who desire to engage in professions or occupations such as may be proper subjects of such regulation, the Legislature may confer upon executive officers or bodies the power of granting or refusing to license persons to enter such trades or professions only when it has prescribed a sufficient standard for their guidance. 16 C.J.S., Páge 373, and cases cited. Where such a power is left to the limited discretion of a board, to be exercised without the guide of legislative standards, the statute is not only discriminatory, but must be regarded as an attempted delegation of the legislative function offensive both to the State and the Federal Constitution.

Similar results were reached in the Board of Trade v. Tobacco Co., 235 N.C. 737, 71 S.E. 2d 21 (1952), where the Kinston Tobacco Board of Trade had been set up to make “reasonable rules and regulations” for the economic and efficient handling of leaf tobacco sales. While pointing out that the legislature has the authority to regulate within constitutional limits the sale of leaf tobacco, the court held that this is a nondelegable power and that the power to regulate may be delegated to an administrative agency only to the extent of filling in the details within the general scope and express purposes of the statutes prescribing the standards. A similar result was reached in the case of Harvell v. Scheidt, Comr. of Motor Vehicles, 249 N.C. 699, 107 S.E. 2d 549 (1959), where the legislature purported to give power to the Department of Motor Vehicles to suspend the license of anyone who was an habitual offender of the traffic laws. Since no guidelines were provided to interpret the words “habitual violator,” it was held that this was an unconstitutional delegation of legislative authority.

G.S. 90-57.1 contains no specific guidelines for the Board to follow. It merely refers to the establishment and maintenance of a high standard of integrity and dignity in the practice of the profession. The guidelines, if they can be considered guidelines,' do not meet the constitutional standards of certainty to allow the Board to adopt such rules. Without such guidelines, G.S. 90-57.1 is an unlawful attempt to delegate legislative authority and is in violation of the North Carolina Constitution.

In view of our holding that G.S. 90-57.1 is unconstitutional, we do not decide the remaining questions of whether the General Assembly may prohibit the advertising of prescription drugs or the preferential treatment of certain classes of persons in the sale of such products.

The judgment of the trial court is modified to conform with this opinion and, as so modified, is affirmed.

Chief Judge Brock and Judge Morris concur.