Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council

Brief Fact Summary.

The Virginia Citizens Consumer Council challenged a Virginia statute that declared it “unprofessional conduct” for licensed pharmacists to advertise their prescription drug prices.

Synopsis of Rule of Law.

A state may not completely suppress the dissemination of truthful information about entirely lawful activity, even if it is commercial speech.

Facts.

Acting on behalf of prescription drug consumers, the Virginia Citizens Consumer Council challenged a Virginia statute that declared it “unprofessional conduct” for licensed pharmacists to advertise their prescription drug prices. The statute in question subjected pharmacists to license suspension or revocation. Prescription drug prices varied a lot within the same locality, in Virginia and nationally, sometimes by several hundred percent. The Virginia State Board of Pharmacy contends that the advertisement of prescription drug prices is outside the protection of the First Amendment because it is unprotected commercial speech.

Issue.

Is a statutory ban on advertising prescription drug prices by licensed pharmacists a violation of the First Amendment?

Held.

Yes, a statutory ban on advertising prescription drug prices by licensed pharmacists is a violation of the First Amendment.

Dissent.

Justice Rehnquist

Under the Court’s opinion, the way will be open not only for dissemination of price information but for active promotion of prescription drugs, liquor, cigarettes, and other products which have previously been thought desirable to discourage. Now, however, such promotion is protected by the First Amendment so long as it is not misleading or does not promote an illegal product or enterprise.

Concurrence.

Justice Stewart

The majority’s decision does not preclude governmental regulation of false or deceptive advertising.

Discussion.

In regards to commercial speech, freedom of speech protections apply just as they would to noncommercial speech. Even speech that is sold for profit or involves financial solicitations is protected. Although the Virginia State Board of Pharmacy has a legitimate interest in preserving professionalism among its members, it may not do so at the expense of public knowledge about lawful competitive pricing terms. In general, society has a strong interest in the free flow of commercial information.