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Virginia State Pharmacy Board v. Virginia Citizens Consumer Council

Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), was a case in which the United States Supreme Court held that a state could not limit pharmacists’ right to provide information about prescription drug prices.[1] This was an important case in determining the application of the First Amendment to commercial speech.

Virginia State Pharmacy Board v. Virginia Citizens Consumer Council
Argued November 11, 1975
Decided May 24, 1976
Full case nameVirginia State Board of Pharmacy, et al. v. Virginia Citizens Consumer Council, Incorporated, et al.
Citations425 U.S. 748 (more)
96 S. Ct. 1817; 48 L. Ed. 2d 346; 1976 U.S. LEXIS 55; 1976-1 Trade Cas. (CCH) ¶ 60,930; 1 Media L. Rep. 1930
Case history
PriorVa. Citizens Consumer Council, Inc. v. State Bd. of Pharmacy, 373 F. Supp. 683 (E.D. Va. 1974); probable jurisdiction noted, 420 U.S. 971 (1975).
Holding
States cannot limit consumer access to information about prescription drug prices.
Court membership
Chief Justice
Warren E. Burger
Associate Justices
William J. Brennan Jr. · Potter Stewart
Byron White · Thurgood Marshall
Harry Blackmun · Lewis F. Powell Jr.
William Rehnquist · John P. Stevens
Case opinions
MajorityBlackmun, joined by Burger, Brennan, Stewart, White, Marshall, Powell
ConcurrenceBurger
ConcurrenceStewart
DissentRehnquist
Stevens took no part in the consideration or decision of the case.
Laws applied
U.S. Const. amend. I

Background Edit

The Commonwealth of Virginia had a statute which prohibited pharmacists from advertising prescription drug prices, providing that those who did would be guilty of “unprofessional conduct”.[2] Drug prices varied throughout the state, as the District Court found.[1] The law was challenged by an individual consumer and consumer groups, who brought suit in the United States District Court for the Eastern District of Virginia.[1] Public Citizen's Litigation Group argued and won the case before the Supreme Court.[3]

Majority opinion Edit

Justice Blackmun, writing for the majority, began his opinion by giving a brief overview of the Virginia pharmacy regulation statutes, and then distinguished previous challenges to such regulations, explaining that such previous cases had been based on economic due process under the Fourteenth Amendment rather than on free speech grounds.[1] Blackmun reasoned that this case concerned not only commercial regulation, but the free flow of information. This case was just as much about the consumers’ right to receive information as it was about the pharmacists’ right to provide it, and that the right to free speech is just as much about the “listener” as it is about the “speaker”.[4]

 
Justice Blackmun, the author of Court's opinion.

Blackmun further described how the court had whittled down the “commercial speech” exemption through past precedent; for example, Bigelow v. Virginia,[5] in which the Court struck down a Virginia statute prohibiting the advertisement of out-of-state abortion procedures.[6] He also distinguished commercial speech from such “unprotected” categories of speech such as “fighting words” and obscenity. Nor does having a purely economic interest in the content of speech deprive the speaker or listener of the protection of the First Amendment. This is especially true for the consumers in this case, as the poor, elderly, and infirm needed access to such information to make informed decisions about how to get their prescriptions filled inexpensively. For such people in need, Blackmun reasoned, such information was more than simply a convenience. Furthermore, he stressed the importance of price advertising in a free market economy, because they serve to provide the underlying information for citizens to make private economic decisions.[7]

The Commonwealth of Virginia justified its enactment of the regulation on the grounds of maintaining the professionalism of pharmacists, asserting that aggressive price competition among pharmacists would make it difficult for pharmacists to provide the proper professional services. Blackmun responded that while regulation of the pharmacy profession was both necessary and within the prerogative of the several States through their police power, the statute promoted consumers’ ignorance, effectively keeping them in the dark about prescription drug prices. Blackmun dismissed this rationale as paternalistic, saying that if consumers had sufficient access to information regarding drug pricing and availability, it would only serve to aid them in their decisions about choosing a prescription drug supplier.[8]

Blackmun concluded his opinion by explaining that states still retained the power to regulate some commercial speech, via content-neutral time, place, and manner regulations. Likewise, states retain the power to prohibit false or deceptive advertisements. However, he held that the states could not suppress truthful information about a lawful economic activity, simply out of fear of potential consequences.[9]

Burger's concurrence Edit

Chief Justice Burger concurred on largely practical grounds, citing the fact that since 95% of the prescriptions being filled required prepackaged medications, prepared by their manufacturers to be sold immediately. These drugs had a large enough market to be sold in such a manner, so the state’s justification based on professionalism carried little weight. Burger instead concentrated on limiting the scope of Blackmun’s majority opinion, stating that it did not extend to professional services such as medicine or law. Burger reasoned that since regulation of these professions governed a different set of risks, and since the services involved were unique and personalized to the client, the holding of this case should not apply to them.[10]

Stewart's concurrence Edit

Justice Stewart wrote a concurrence explaining how the holding of this did not limit the states’ ability to restrict deceptive or false advertising. He cited various libel cases to demonstrate that while the press cannot be harshly restricted for fear that journalists may occasionally get their facts wrong, an advertiser is much more likely to know whether or not the material he was publishing was true. Thus, states should have greater latitude in regulating the content of advertisements for the veracity of their content. Even though commercial advertising and ideological expression are clearly different, advertisements which convey truthful information are worthy of First Amendment protection, and the elimination of deceptive claims serves to further the goal of the free flow of accurate and reliable information.[11]

Rehnquist's dissent Edit

 
Justice Rehnquist, the author of the dissenting opinion.

Justice Rehnquist was the lone dissenter in this case.[12] He lamented the majority’s decision to elevate the advertisement of products to the level of the ideological “marketplace of ideas”,[13] feeling that this was an overextension of First Amendment doctrine. He used a type of slippery slope argument to describe the potential consequences of this decision; specifically, he worried that this ruling would allow the promotion of consumption of liquor, cigarettes, and other products which states had traditionally tried to discourage.[14]

He indirectly hearkened back to the Lochner era economic due process cases, accusing the court of writing its own economic policy into the law, when such a regulation should be within the police power of the state. He pointed to the potentially misleading nature of commercial speech, and suggested that consumers who truly needed such information could easily seek it out themselves.

He concluded by arguing that the majority has not only failed to accord proper weight to the judgment of the Virginia State Legislature, but that the protection of the First Amendment ought to be limited to political and social issues.[15]

References Edit

  1. ^ a b c d Va. State Pharmacy Bd. v. Va. Citizens Consumer Council, 425 U.S. 748 (1976).
  2. ^ Brian Bohnert; Bowling Green State University (November 28, 2011). "Virginia Board of Pharmacy v.s. Virginia Citizens Consumer Council". bgsu.edu.
  3. ^ David C. Vladeck; Loyola Marymount University (September 1, 2007). "The Difficult Case of Direct-To-Consumer Drug Advertising". lmu.edu.
  4. ^ Va. State Pharmacy Bd., 425 U.S. at 753-54.
  5. ^ Bigelow v. Virginia, 421 U.S. 809 (1975).
  6. ^ Va. State Pharmacy Bd., 425 U.S. at 759.
  7. ^ Va. State Pharmacy Bd., 425 U.S. at 765.
  8. ^ Va. State Pharmacy Bd., 425 U.S. at 770.
  9. ^ Va. State Pharmacy Bd., 425 U.S. at 771-73.
  10. ^ Va. State Pharmacy Bd., 425 U.S. at 773-74 (Burger, C.J., concurring).
  11. ^ Va. State Pharmacy Bd., 425 U.S. at 774-81 (Stewart, J., concurring).
  12. ^ Illinois Institute of Technology Chicago-Kent College of Law. "VIRGINIA PHARMACY BD. v. VIRGINIA CONSUMER COUNCIL". oyez.org.
  13. ^ William Rehnquist; Washington and Lee University School of Law (1976). "The Burger Court Opinion Writing Database Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc" (PDF). wustl.edu.
  14. ^ Va. State Pharmacy Bd., 425 U.S. at 781 (Rehnquist, J., dissenting).
  15. ^ Va. State Pharmacy Bd., 425 U.S. at 784-90 (Rehnquist, J., dissenting).

External links Edit

  • Text of Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) is available from: Findlaw  Justia  Library of Congress  Oyez (oral argument audio) 

virginia, state, pharmacy, board, virginia, citizens, consumer, council, 1976, case, which, united, states, supreme, court, held, that, state, could, limit, pharmacists, right, provide, information, about, prescription, drug, prices, this, important, case, det. Virginia State Pharmacy Board v Virginia Citizens Consumer Council 425 U S 748 1976 was a case in which the United States Supreme Court held that a state could not limit pharmacists right to provide information about prescription drug prices 1 This was an important case in determining the application of the First Amendment to commercial speech Virginia State Pharmacy Board v Virginia Citizens Consumer CouncilSupreme Court of the United StatesArgued November 11 1975Decided May 24 1976Full case nameVirginia State Board of Pharmacy et al v Virginia Citizens Consumer Council Incorporated et al Citations425 U S 748 more 96 S Ct 1817 48 L Ed 2d 346 1976 U S LEXIS 55 1976 1 Trade Cas CCH 60 930 1 Media L Rep 1930Case historyPriorVa Citizens Consumer Council Inc v State Bd of Pharmacy 373 F Supp 683 E D Va 1974 probable jurisdiction noted 420 U S 971 1975 HoldingStates cannot limit consumer access to information about prescription drug prices Court membershipChief Justice Warren E Burger Associate Justices William J Brennan Jr Potter StewartByron White Thurgood MarshallHarry Blackmun Lewis F Powell Jr William Rehnquist John P StevensCase opinionsMajorityBlackmun joined by Burger Brennan Stewart White Marshall PowellConcurrenceBurgerConcurrenceStewartDissentRehnquistStevens took no part in the consideration or decision of the case Laws appliedU S Const amend I Contents 1 Background 2 Majority opinion 3 Burger s concurrence 4 Stewart s concurrence 5 Rehnquist s dissent 6 References 7 External linksBackground EditThe Commonwealth of Virginia had a statute which prohibited pharmacists from advertising prescription drug prices providing that those who did would be guilty of unprofessional conduct 2 Drug prices varied throughout the state as the District Court found 1 The law was challenged by an individual consumer and consumer groups who brought suit in the United States District Court for the Eastern District of Virginia 1 Public Citizen s Litigation Group argued and won the case before the Supreme Court 3 Majority opinion EditJustice Blackmun writing for the majority began his opinion by giving a brief overview of the Virginia pharmacy regulation statutes and then distinguished previous challenges to such regulations explaining that such previous cases had been based on economic due process under the Fourteenth Amendment rather than on free speech grounds 1 Blackmun reasoned that this case concerned not only commercial regulation but the free flow of information This case was just as much about the consumers right to receive information as it was about the pharmacists right to provide it and that the right to free speech is just as much about the listener as it is about the speaker 4 nbsp Justice Blackmun the author of Court s opinion Blackmun further described how the court had whittled down the commercial speech exemption through past precedent for example Bigelow v Virginia 5 in which the Court struck down a Virginia statute prohibiting the advertisement of out of state abortion procedures 6 He also distinguished commercial speech from such unprotected categories of speech such as fighting words and obscenity Nor does having a purely economic interest in the content of speech deprive the speaker or listener of the protection of the First Amendment This is especially true for the consumers in this case as the poor elderly and infirm needed access to such information to make informed decisions about how to get their prescriptions filled inexpensively For such people in need Blackmun reasoned such information was more than simply a convenience Furthermore he stressed the importance of price advertising in a free market economy because they serve to provide the underlying information for citizens to make private economic decisions 7 The Commonwealth of Virginia justified its enactment of the regulation on the grounds of maintaining the professionalism of pharmacists asserting that aggressive price competition among pharmacists would make it difficult for pharmacists to provide the proper professional services Blackmun responded that while regulation of the pharmacy profession was both necessary and within the prerogative of the several States through their police power the statute promoted consumers ignorance effectively keeping them in the dark about prescription drug prices Blackmun dismissed this rationale as paternalistic saying that if consumers had sufficient access to information regarding drug pricing and availability it would only serve to aid them in their decisions about choosing a prescription drug supplier 8 Blackmun concluded his opinion by explaining that states still retained the power to regulate some commercial speech via content neutral time place and manner regulations Likewise states retain the power to prohibit false or deceptive advertisements However he held that the states could not suppress truthful information about a lawful economic activity simply out of fear of potential consequences 9 Burger s concurrence EditChief Justice Burger concurred on largely practical grounds citing the fact that since 95 of the prescriptions being filled required prepackaged medications prepared by their manufacturers to be sold immediately These drugs had a large enough market to be sold in such a manner so the state s justification based on professionalism carried little weight Burger instead concentrated on limiting the scope of Blackmun s majority opinion stating that it did not extend to professional services such as medicine or law Burger reasoned that since regulation of these professions governed a different set of risks and since the services involved were unique and personalized to the client the holding of this case should not apply to them 10 Stewart s concurrence EditJustice Stewart wrote a concurrence explaining how the holding of this did not limit the states ability to restrict deceptive or false advertising He cited various libel cases to demonstrate that while the press cannot be harshly restricted for fear that journalists may occasionally get their facts wrong an advertiser is much more likely to know whether or not the material he was publishing was true Thus states should have greater latitude in regulating the content of advertisements for the veracity of their content Even though commercial advertising and ideological expression are clearly different advertisements which convey truthful information are worthy of First Amendment protection and the elimination of deceptive claims serves to further the goal of the free flow of accurate and reliable information 11 Rehnquist s dissent Edit nbsp Justice Rehnquist the author of the dissenting opinion Justice Rehnquist was the lone dissenter in this case 12 He lamented the majority s decision to elevate the advertisement of products to the level of the ideological marketplace of ideas 13 feeling that this was an overextension of First Amendment doctrine He used a type of slippery slope argument to describe the potential consequences of this decision specifically he worried that this ruling would allow the promotion of consumption of liquor cigarettes and other products which states had traditionally tried to discourage 14 He indirectly hearkened back to the Lochner era economic due process cases accusing the court of writing its own economic policy into the law when such a regulation should be within the police power of the state He pointed to the potentially misleading nature of commercial speech and suggested that consumers who truly needed such information could easily seek it out themselves He concluded by arguing that the majority has not only failed to accord proper weight to the judgment of the Virginia State Legislature but that the protection of the First Amendment ought to be limited to political and social issues 15 References Edit a b c d Va State Pharmacy Bd v Va Citizens Consumer Council 425 U S 748 1976 Brian Bohnert Bowling Green State University November 28 2011 Virginia Board of Pharmacy v s Virginia Citizens Consumer Council bgsu edu David C Vladeck Loyola Marymount University September 1 2007 The Difficult Case of Direct To Consumer Drug Advertising lmu edu Va State Pharmacy Bd 425 U S at 753 54 Bigelow v Virginia 421 U S 809 1975 Va State Pharmacy Bd 425 U S at 759 Va State Pharmacy Bd 425 U S at 765 Va State Pharmacy Bd 425 U S at 770 Va State Pharmacy Bd 425 U S at 771 73 Va State Pharmacy Bd 425 U S at 773 74 Burger C J concurring Va State Pharmacy Bd 425 U S at 774 81 Stewart J concurring Illinois Institute of Technology Chicago Kent College of Law VIRGINIA PHARMACY BD v VIRGINIA CONSUMER COUNCIL oyez org William Rehnquist Washington and Lee University School of Law 1976 The Burger Court Opinion Writing Database Virginia Board of Pharmacy v Virginia Citizens Consumer Council Inc PDF wustl edu Va State Pharmacy Bd 425 U S at 781 Rehnquist J dissenting Va State Pharmacy Bd 425 U S at 784 90 Rehnquist J dissenting External links EditText of Virginia State Pharmacy Board v Virginia Citizens Consumer Council 425 U S 748 1976 is available from Findlaw Justia Library of Congress Oyez oral argument audio Retrieved from https en wikipedia org w index php title Virginia State Pharmacy Board v Virginia Citizens Consumer Council amp oldid 1175152326, wikipedia, wiki, book, books, library,

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