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Virginia State Board of Pharmacy v. Virginia Citizens Consumer Counsel

    Citation. 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346, 1976 U.S. 55.

    Brief Fact Summary. The Appellee, the Virginia Citizens Consumer Counsel (Appellee), an organization of prescription drug consumers challenged as violative of the First and Fourteenth Amendments of the United States Constitution (Constitution) a Virginia statute providing that a pharmacist licensed in Virginia is guilty of unprofessional conduct if he “publishes, advertises or promotes, directly or indirectly, in any manner whatsoever, any amount, price, fee, premium, discount, rebate or credit terms for any drugs which may be dispensed only by prescription.”

    Synopsis of Rule of Law. It is the content of the communication, rather than the speaker’s commercial or profit motivation that is determinative. If there is a kind of commercial speech that lacks all First Amendment protection it must be distinguished by its content.


    Facts. The Appellee an organization of prescription drug consumers challenged as violative of the First and Fourteenth Amendments of the Constitution a Virginia statute providing that a pharmacist licensed in Virginia is guilty of unprofessional conduct if he “publishes, advertises or promotes, directly or indirectly, in any manner whatsoever, any amount, price, fee, premium, discount, rebate or credit terms for any drugs which may be dispensed only by prescription.” Although drug prices varied strikingly throughout Virginia and even within the same locality, the challenged law effectively prevented the dissemination of any prescription drug price information, since only licensed pharmacists were authorized to dispense such drugs. A three-judge District Court held the law invalid.

    Issue. Is there a First Amendment constitutional exception for “commercial speech”?

    Held. A state may not completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information’s effect upon its disseminators and its recipients. As a result the decision of the lower court is affirmed and the law remains invalid.

    Dissent. Now, promotion of prescription drugs, liquor, cigarettes and other products, the use of which it has previously been thought desirable to discourage, will be protected by the First Amendment of the Constitution so long as such promotion is not misleading or does not promote an illegal product or enterprise.

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    Discussion. The majority opinion attacks the State of Virginia’s so-called protection of the pharmacist-consumer relationship. The Supreme Court of the United States (Supreme Court) noted that the State feared that consumers will travel from pharmacist to pharmacist in search of the largest discount and cheapest prescription, at the cost of forging a pharmacist-consumer relationship. The Supreme Court based its decision upon the fact that, only when best informed, will consumers make decision that are truly in their best interests. As a result, the lines of communication, including paid communication about a commercial product, should be generally open to First Amendment constitutional protection.

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