Opinion No. 75-160 (1975) Ag ( 1975 )

GENERIC SUBSTITUTES

A pharmacist may make a generic substitution either with the consent of the prescriber or the purchaser. However, for the actual drug entity to be changed it would require a new prescription. The Attorney General is in receipt of your request for an opinion wherein you ask: "Does 59 O.S. 353.21 [59-353.21] (1971), allow pharmacists to make a generic substitution of a prescribed drug with the consent of the purchaser although he does not have the consent of the prescribing physician?" Title 59 O.S. 353.21 [59-353.21] (1971) states: "It shall be unlawful for any pharmacist being requested to sell, furnish or compound any drug, medicine, chemical or other pharmaceutical preparation, by prescription or otherwise, to substitute or cause to be substituted therefor, without authority of the prescriber or purchaser, any other drug, medicine, chemical or pharmaceutical preparation." (Emphasis added) Sands on Sutherland Statutory Construction, 1A 21.14, discusses legislative composition. He states that "where two or more requirements must be fulfilled in order to comply with the statute, the conjunctive 'and' should be used." It is presumed that the use of the word "or" is disjunctive. The "ordinary use of the word 'or' in a statute is as a disjunctive that marks an alternative generally corresponding to 'either'." 2 C.J.S. 335. The Oklahoma Supreme Court has held the word "or" makes an alternative. Board of Education v. American Nat. Co., 275 P. 285 (1928); School District No. 9 of Tulsa County v. Board of Commissioners of Tulsa, 280 P. 807 (1929). It appears from the Oklahoma Supreme Court decisions and applying the above cited rule of statutory construction to 59 O.S. 353.21 [59-353.21] (1971), that the purchaser is entitled to authorize a pharmacist to make a generic substitution. It is clear, however, that 59 O.S. 353.1 [59-353.1](7) (1971) provides that only legally competent practitioners of medicine, dentistry, and osteopathy, podiatry, or veterinary medicine, are licensed to prescribe and administer drugs and medical supplies which are intended to be filled, compounded or dispensed by pharmacists. Therefore, it would not be permissible for a pharmacist with or without the consent of the purchaser to change the drug entity which had been prescribed. It is, therefore, the opinion of the Attorney General that your question be answered in the affirmative. A pharmacist may make a generic substitution either with the consent of the prescriber or the purchaser. However, for the actual drug entity to be changed it would require a new prescription. (Paul C. Duncan)