Pennsylvania State Board of Pharmacy v. Pastor , 441 Pa. 186 ( 1971 )

Dissenting Opinion by

Mr. Justice Jones:

At the outset I should like to state my understanding of the thrust of the Majority Opinion. Today the majority finds violative of due process only that portion of Section 8(11) of the Pharmacy Act, Act of September 27, 1961, P. L. 1700, 63 P.S. §390-8(11) prohibiting the advertisement of “dangerous drugs”. Owing to the unique statutory definitions chosen by the General Assembly and the interaction of state and federal law, the majority is able to equate drugs legitimately available only on prescription with “dangerous drugs.” Henceforth, the pharmacies in the Commonwealth will be permitted to advertise prescription drugs and not all those drugs loosely termed “dangerous drugs”. Though only prescription drugs may be advertised, I must nonetheless dissent.

The cornerstone of the Majority Opinion is the “unique purchasing structure” of the prescription drug industry whereby such drugs are available only upon a written or oral prescription from a duly licensed medical practitioner and filled by a licensed pharmacist. Thus, the majority is able to erect the required prescription as a bulwark against drug abuse; to do otherwise, the majority concludes, would impugn the professional integrity of either doctors or pharmacists. It may be true that the incidence of legitimate drug taking will not be increased but one must pause to consider the effect of the majority’s decision on the incidence of illegitimate drug consumption.

In an increasingly drug-oriented society it cannot be gainsaid that such advertising might very well “titillate an aberrant person”. Considering the thesis of many popular writers that advertising agencies can sell any product, including politicians, could not this prescription drug advertising have the side effect, albeit unintentional, of popularizing the illegal use of drugs? The blatant, multi-media advertising of prescription drugs that can be anticipated may very well have the effect of placing society’s stamp of approval on any and all drug usage. While it may be argued, owing to the already widespread use of narcotics, that my position would add but one more cup of water to the sea, such advertising may also be the straw to break society’s back. Thus, it is my belief that the majority’s analysis does not fully explore all the possible ramifications of this decision.

I further disagree with the majority’s dismissal of this Court’s rationale in Ullom v. Boehm, 392 Pa. 643, 142 A. 2d 19 (1958), because of the “unique purchasing structure” of prescription drugs. In distinguishing TJllom, the majority pays no heed to the spirit or essence of the TJllom opinion insofar as that case impugned the profession of optometry by recognizing the legislative determination to remove “from dealers the temptation to sell to the public, eye-damaging glasses in order to adhere to an arbitrarily established reduced budget”. 392 Pa. at 648-49, 142 A. 2d at 21. For some unarticulated reason the majority does not choose to demean pharmacists whereas this Court has already impugned optometrists. Just as an optometrist may sell “eye-damaging glasses in order to adhere to an arbitrarily established reduced budget”, so may a pharmacist sell prescription drugs without a prescription in order that his volume of drug sales at reduced prices will cover his costs.

For these reasons, I dissent and would affirm the revocation.