Virginia State Pharmacy Board v. Virginia Citizens Consumer Council
Encyclopedia
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. This was an important case in determining the application of the First Amendment
to commercial speech
.
prescription drug prices, providing that those who did would be guilty of “unprofessional conduct”. Drug prices varied throughout the state, as the District Court
found. 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
. Public Citizen
's Litigation Group
argued and won the case before the Supreme Court.
, 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. 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”.
He further described how the court’s past precedent had whittled down the “commercial speech” exemption through past precedent; for example, Bigelow v. Virginia, , in which the Court struck down a Virginia statute prohibiting the advertisement of out-of-state abortion
procedures. 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.
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.
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.
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
. He 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.
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.
was the lone dissenter in this case. He lamented the majority’s decision to elevate the advertisement of products to the level of the ideological “marketplace of ideas
”, 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. 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.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1976), was a case in which the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
held that a state could not limit pharmacists’ right to provide information about prescription drug
Prescription drug
A prescription medication is a licensed medicine that is regulated by legislation to require a medical prescription before it can be obtained. The term is used to distinguish it from over-the-counter drugs which can be obtained without a prescription...
prices. This was an important case in determining the application of the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
to commercial speech
Commercial speech
Commercial Speech is speech done on behalf of a company or individual for the intent of making a profit. It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product...
.
Facts
The Commonwealth of Virginia had a statute which prohibited pharmacists from advertisingAdvertising
Advertising is a form of communication used to persuade an audience to take some action with respect to products, ideas, or services. Most commonly, the desired result is to drive consumer behavior with respect to a commercial offering, although political and ideological advertising is also common...
prescription drug prices, providing that those who did would be guilty of “unprofessional conduct”. Drug prices varied throughout the state, as the District Court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
found. The law was challenged by an individual consumer and consumer
Consumer
Consumer is a broad label for any individuals or households that use goods generated within the economy. The concept of a consumer occurs in different contexts, so that the usage and significance of the term may vary.-Economics and marketing:...
groups, who brought suit in the United States District Court for the Eastern District of Virginia
United States District Court for the Eastern District of Virginia
The United States District Court for the Eastern District of Virginia is one of two United States district courts serving the Commonwealth of Virginia...
. Public Citizen
Public Citizen
Public Citizen is a non-profit, consumer rights advocacy group based in Washington, D.C., United States, with a branch in Austin, Texas. Public Citizen was founded by Ralph Nader in 1971, headed for 26 years by Joan Claybrook, and is now headed by Robert Weissman.-Lobbying Efforts:Public Citizen...
's Litigation Group
Public Citizen Litigation Group
Public Citizen Litigation Group is a nationally prominent public interest law firm known for its Supreme Court and appellate practice. The group is the litigating arm of the non-profit consumer advocacy organization Public Citizen...
argued and won the case before the Supreme Court.
Majority opinion
Justice BlackmunHarry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
, writing for the majority, began his opinion by giving a brief overview of the Virginia pharmacy
Pharmacy
Pharmacy is the health profession that links the health sciences with the chemical sciences and it is charged with ensuring the safe and effective use of pharmaceutical drugs...
regulation statutes, and then distinguished previous challenges to such regulations, explaining that such previous cases had been based on economic due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
under the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
rather than on free speech grounds. 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”.
He further described how the court’s past precedent had whittled down the “commercial speech” exemption through past precedent; for example, Bigelow v. Virginia, , in which the Court struck down a Virginia statute prohibiting the advertisement of out-of-state abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
procedures. He also distinguished commercial speech from such “unprotected” categories of speech such as “fighting words
Fighting words
Fighting words are written or spoken words, generally expressed to incite hatred or violence from their target. Specific definitions, freedoms, and limitations of fighting words vary by jurisdiction...
” and obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
. 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
Free market
A free market is a competitive market where prices are determined by supply and demand. However, the term is also commonly used for markets in which economic intervention and regulation by the state is limited to tax collection, and enforcement of private ownership and contracts...
economy, because they serve to provide the underlying information for citizens to make private economic decisions.
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
Profession
A profession is a vocation founded upon specialized educational training, the purpose of which is to supply disinterested counsel and service to others, for a direct and definite compensation, wholly apart from expectation of other business gain....
was both necessary and within the prerogative of the several States through their police power
Police power
In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the general welfare, morals, health, and safety of their inhabitants...
, 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.
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
False advertising
False advertising or deceptive advertising is the use of false or misleading statements in advertising. As advertising has the potential to persuade people into commercial transactions that they might otherwise avoid, many governments around the world use regulations to control false, deceptive or...
. However, he held that the states could not suppress truthful information about a lawful economic
Economics
Economics is the social science that analyzes the production, distribution, and consumption of goods and services. The term economics comes from the Ancient Greek from + , hence "rules of the house"...
activity, simply out of fear of potential consequences.
Burger's concurrence
Chief Justice BurgerWarren E. Burger
Warren Earl Burger was the 15th Chief Justice of the United States from 1969 to 1986. Although Burger had conservative leanings, the U.S...
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
Physician
A physician is a health care provider who practices the profession of medicine, which is concerned with promoting, maintaining or restoring human health through the study, diagnosis, and treatment of disease, injury and other physical and mental impairments...
or law
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
. He 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.
Stewart's concurrence
Justice StewartPotter Stewart
Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...
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
Journalism
Journalism is the practice of investigation and reporting of events, issues and trends to a broad audience in a timely fashion. Though there are many variations of journalism, the ideal is to inform the intended audience. Along with covering organizations and institutions such as government and...
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.
Dissent
Justice RehnquistWilliam Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
was the lone dissenter in this case. He lamented the majority’s decision to elevate the advertisement of products to the level of the ideological “marketplace of ideas
Marketplace of ideas
The "marketplace of ideas" is a rationale for freedom of expression based on an analogy to the economic concept of a free market. The "marketplace of ideas" belief holds that the truth or the best policy arises out of the competition of widely various ideas in free, transparent public discourse, an...
”, feeling that this was an overextension of First Amendment doctrine. He used a type of slippery slope
Slippery slope
In debate or rhetoric, a slippery slope is a classic form of argument, arguably an informal fallacy...
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. He indirectly hearkened back to the Lochner era
Lochner era
The Lochner era is a period in American legal history in which the Supreme Court of the United States tended to strike down laws held to be infringing on economic liberty or private contract rights, and takes its name from a 1905 case, Lochner v. New York. The beginning of the period is usually...
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
Virginia General Assembly
The Virginia General Assembly is the legislative body of the Commonwealth of Virginia, and the oldest legislative body in the Western Hemisphere, established on July 30, 1619. The General Assembly is a bicameral body consisting of a lower house, the Virginia House of Delegates, with 100 members,...
, but that the protection of the First Amendment ought to be limited to political and social issues.