Virginia Pharmacy Board v. Virginia Citizens Consumer Council

Brief Fact Summary. A statute banning pharmacists from advertising the prices of prescription drug prices was found to be in violation of the First Amendment of the United States Constitution (Constitution) by the Supreme Court of the United States (Supreme Court).

Synopsis of Rule of Law. If there is a right to advertise, there is a reciprocal right to receive the advertising and it may be asserted by the consumers here.

Facts. Prescription drug consumers challenged a statute banning pharmacists from advertising the prices of prescription drug prices on behalf of the pharmacists. They claimed that the statute was unconstitutional and that the First Amendment of the Constitution entitled the consumers to receive the drug price information. The lower court invalidated the law on First Amendment constitutional grounds.

Issue. Whether the prescription drug consumers have standing to challenge the law?
Whether the advertisement of prescription drug prices is outside the protection of the First Amendment of the Constitution because it is commercial speech?

Held. Yes. Judgment of the lower court affirmed. Where exists, as here, the protection afforded by the First Amendment of the Constitution is to the communication, to its source and to its recipients both. If there is a right to advertise, there is a reciprocal right to receive the advertising and it may be asserted by the consumers here. Therefore, the prescription drug consumers do have standing to challenge the law.
No. Judgment of the lower court affirmed. The idea that the pharmacist wishes to communicate is merely, “I will sell you the X prescription at the Y price.” Speech does not lose its First Amendment protection because money is spent to project it as an advertisement. When drug prices vary as much as they do, information as to who is charging what becomes more than a convenience. This information (drug prices) is not harmful. The people will know their own best interests only if they are well informed. The best means to that end is to open the channels of communication by making such information available to the consumers rather than closing the modes of communication by not prohibiting such advertising. Therefore, the ban on advertising prices of prescription drugs is constitutional.

Dissent. In a democracy, the economic is subordinate to the political. The First Amendment of the Constitution does not mandate the Court’s “open door policy” toward such commercial advertising.

Discussion. Here the majority holds that speech is not taken out of the First Amendment’s protection merely because it is commercial in nature.