*1 OF PHARMACY MARYLAND BOARD SAV-A-LOT, INC. et al. Term, September 1973.] [No. 31, 1973.
Decided October J., argued was C. The cause before Barnes, Murphy, Digges JJ. McWilliams, Singley, Levine, Smith, Thomson, Special Attorney Lee Stuart Assistant General, Burch, Attorney with whom were Francis B. General, Walter, Paul Attorney General, Assistant brief,
on the appellant. *2 by Maryland
Amicus Curiae brief filed Pharmaceutical Association, Inc., Joseph S. on the brief. Kaufman Citizen,
Amicus Curiae brief filed Public Inc. and Group, Raymond Health Research T. Bonner and Kalman R. Hettleman bn the brief. by Legal
Amicus Curiae brief filed Services for the Gibson, Elderly Poor, Larry Bernard C. Durham and Jonathan A. Weiss on the brief. Jr., McManus,
George appellees. W. for Levine, J., opinion J., Smith, the Court. delivered the dissenting opinion dissents and page filed infra. presented We are challenge here with a constitutional Vol.) (c) (4) Maryland.Code (1957, Repl. Art. 266A§ (iv)1 resulting equity brought by appellees from an suit in City. subsequently Circuit Court of Baltimore It became upon being an action at law Superior transferred to the City consequence Court of Baltimore of a demurrer to the “(c) — power pharmacist 1. The Grounds. Board’s either to reprimand pharmacist suspend any or assistant or to or revoke his license shall be for following causes: "(4) (cid:127) Upon proof satisfactory Pharmacy to the Board of that a pharmacist pharmacist guilty grossly unprofessional assistant .or following part pharmacist The conduct. pharmacist acts on the of a or assistant hereby unprofessional grossly are declared to constitute conduct: “(iv) means, any by any The .to or form through any media, prices prescriptions, dangerous or for nonproprietary drugs, relating or fees for services thereto or reference price prescriptions specifically of said or whether or aas ’ rate, percentile. prevailing prices, the use ‘cut terms added). ‘discount,'-‘bargain' (émphasis or terms similar connotation." equity Following merits, bill. a trial on the the course of evidence, parties presented which the considerable the court J.) (Carter, thoroughly-considered opinion, wrote declared the as a violation statute unconstitutional appellees’ process rights due under the Fourteenth Amendment Federal to the Constitution.
Appellees, corporations operating who are three seven Maryland, retail stores in instituted action. Five of these outlets trade under the name oí Sav-A-Lot are variety essentially pharmacy stores do not contain departments. stores, The other Drugs, two known as Leader operate pharmacies. dispute parties began The between the Board) (the appellant when refused to sanction use of name, Drugs” appellees’ “prescription-type "Sav-A-Lot drug prohibition because of the enunciated Art. store[s]” (0(4) (iv). controversy 266A ripened has now into a ^ *3 — broader appellees issue whether may advertise prescription drug prices, proscribed as well by as the terms price the statute drugs. that connote on discounts such Briefly summarized, the in evidence the trial court showed following: Sidney Wolf, specialist the Dr. in internal medicine, a staff former member at the National Institutes Health, organization currently and affiliated with an Group.” known “great as "Health Research testified to the [prescription drug] in prices[sj variation from store to store city.” given testimony, within a This which has neither been seriously here, challenged contradicted below nor is was amply supported by by documentary evidence admitted the court. trial pointed citizens, many
This witness also out that senior drugs, whom are prevented on “maintenance” are from “shopping” prices by statutory for the lowest available the proscription against advertising. He testified that this is a great matter elderly, sick, concern for the the and the economically disadvantaged, persons for it is such who are less survey mobile and therefore drug less able stores for comparative prices. reasons, according For these to the witness, present identifying consumer’s dilemma of prices those stores which offer the prescription lowest 106 by removing prohibition against be would solved drug advertising. testimony This was Wilson, parish
supported, part, Father Donald whose operates apartment church an house for senior citizens City of Baltimore. evidence, appellant produced J. To counter this Norman Levin, County pharmacist in Baltimore and President of Maryland Pharmacy. presented Board of He a number of Board, why opinion, in his and that of the entire reasons necessary. We was shall allude to them later this statute opinion. Court, appellant argument renews its this violate the Due Process
statute does not
Clause of
Amendment,
urges upon
Fourteenth
us that
it is
police power. Thus,
of the state’s
reasonable exercise
statute,
question we must answer is whether this
as an
police power, provides
a real and
exercise of
state’s
public health, morals, safety,
relation to the
substantial
state, Liggett
Baldridge,
welfare of the citizens of this
v.Co.
105, 111-12,
57,
(1928);
S.
S. Ct.
73 L.
278 U.
Ed. 204
Salisbury, 240 Md.
107
adjudge
give
Constitution,
to
and thereby
so
effect
Kansas,
623,
Mugler
661,
273,
v.
123 U.
8 Ct.
31 L. Ed.
S.
S.
(1887);
385, 391,
State,
(1914);
205
124
Hiller v.
Md.
Statutes similar to that under here attack have been upheld grounds, Drug on Company constitutional Patterson (W.D. Supp. 1969); Kingery, Supermarkets v. 305 F. Va. 821 Sills, (1966). Super. Corp. 326, 93 N. 225 A. 2d Gen. v. J. 728 have, however, Other states declared such statutes unconstitutional, Pharmacy City, Florida v. Board Webb’s Inc., (Fla. 1969); Inc., 219 2d 681 City, So. Stadnik v. Shell’s (Fla. 1962); 140 871 So. 2d Pennsylvania State Board of 186, Pastor, (1971), 441 Pa. 272 2d Pharmacy v. A. 487 44 A.L.R.3d 1290. Other analogous states have resolved upon relying grounds, conflicts other see West Romaine Corp. App. Pharmacy, v. State Board 266 Cal. California 901, (1968); Rptr. 2d Oregon 72 Cal. 569 Newspaper Peterson, 116, 21 Ass’n v. Ore. 415 P. 2d Publishers (1966). Drug Company Kingery, supra, Patterson v. three-judge Virginia federal had court before it a statute subjected any pharmacist charge which unprofessional conduct who:
“issues, publishes, promotes, advertises or directly indirectly, whatsoever, or manner any amount, price, fee, premium, discount, rebate professional credit terms for services or for drugs containing any drugs narcotics or for dispensed only by prescription.” 305 F. Supp. at 823.
Relying principally upon the cases of Williamson v. Lee (1955) Optical Co., 483, 461, 348 U. S. 75 S. L. Ed. Ct. Examiners, and Semler Dental U. S. 55 S. Ct. (1935)
79 L. practice Ed. 1086 for the rationale that the — pharmacy professional pursuit “subject thus — regulation and control interest” the federal Virginia prohibition court against sustained the *5 prices advertising drugs retail a as police power. exercise of the state’s constitutional Jersey upheld Supermarkets, supra, In the New a court grossly unprofessional law declared as state which conduct: indirect, by any means, promotion, “The direct or any through any prices form and media of the prescription drugs and for narcotics or fees or for any relating services thereto or reference to the price drugs prescriptions of said or whether percentile prices specifically prevailing or or as a rate,’ ‘discount,’ ‘cut the use of the terms connotation”; ‘bargain,’ A. or terms of similar 2d at 732. reasoning part, applied Kingery the same as the the court plaintiffs
court, that the had not rebutted the and concluded constitutionality” “strong presumption with which statute was cloaked. Inc., Supreme supra, the City, Florida
In Stadnik v. Shell’s ruling which struck down affirmed a lower court Court promulgated by regulatory a measure unconstitutional State Board of name Pharmacy against “. . . the tranquilizing drugs antibiotics or other price or or only by dispensed means of purchased and can be which There, as physician,” 140 2d at 872. So. prescription from Pennsylvania Jersey cases cited Virginia, New in the that the statute by a contention above, was,met the court power. police It state’s reasonable exercise was a. however, holding that there was “no argument, rejected that administrative intrusion such justification an reasonable completely regulation is so rights when the private on Later, upon the benefit,” 140 2d 875. lacking So. Court, in Supreme Florida Stadnik, authority the Florida Inc., supra, declared City, Pharmacy v. Webb’s Board provided: statute unconstitutional retail employee of a pharmacist, owner “No any use communication drug shall establishment promote media to or advertise the use or sale of *6 following: the of
“(f) Any drugs require prescription.” omitted). (emphasis 2d at 681 So. Pastor, Pharmacy In Pennsylvania Board State of Pennsylvania Supreme
supra, the Court considered the constitutionality made of a statute which it unlawful vel non pharmacist prices dangerous for a advertise the of or to drugs. Elsewhere the statute defined as narcotic “dangerous” drugs dispensed only all which can be with a physician’s prescription. The court found that the statute objects” did not bear a “substantial relation to of the to directed, 494; 272 A. which it was 2d at thus it held the prohibited statute unconstitutional insofar as it the advertising “dangerous drugs,” of 272A. 2d at 495. here, arguing in constitutionality Board for the of the
statute, grounds support position: advances these to its
(1) advertising drug prices That the will increase the drugs, creating thereby demand for atmosphere an drug conducive to abuse.
(2) By encouraging “shop around,” consumers to advertising drug prices unlikely will they make it patronize only will pharmacy. Thus, one pharmacist will longer position no prescriptions to “monitor” to determine using whether the consumer antagonistic drugs.
(3) That, pharmacy profession since is a which affects welfare, health and state, in the exercise of its police power, may prohibit advertising prevent such rivalry demeaning profession. to the
(4) advertising That drug prices will result in in- pressure creased physicians on prescribe larger quan- medically tities than are indicated to enable their patients advantage to take quantity discounts.
The first reason asserted Board defense of the advertising drug prices
statute is that will increase dangerous drugs. Undoubtedly, the demand for the answer argument comprehensive regulatory this is found provisions Maryland scheme reflected other of the Code.2 being here, In the face of a contention similar to that made Pennsylvania Supreme Pastor, supra, Court said: “We must therefore conclude that because of the pharmaceutical highly regulated structure profession, and the that the consumer fact cannot purchases, appear unlikely choose his it would most prices of retail would, could, any impact have on the consumption drugs. ...” 272 A. demand or such *7 2d at 493. apposite
We think that conclusion is here. argument The second made the Board is that drug prices encourage “shop of will consumers to around,” preventing pharmacists monitoring thus from prescriptions. contending, only In so the Board derives support upon limited from the two cases which it relies most heavily, Drug Company and Kingery Patterson v. Vol.) 43, (1957, Repl. prohibits persons 1971 Art. 122 2. Code from § practicing accordance with by the medicine unless licensed Board of Medical Examiners law; many stringent requirements imposed by the 269 of § provides only persons supervision registered Art. that under 43 the of a pharmacist drugs; persons duly approved by that may prepare or other the Board provides person pharmacy maintain no shall without a § proper certificate, one who is not a registered pharmacists and dentists who are own may pharmacy charge and registered pharmacist; not leave a time in of permits only that same section compound prescriptions, physicians to as well as permitted personally compound dispense their prescriptions; requirements 249-289 of Art. contain other §§ protect general health, safety designed regard the welfare of the with (a) compounding dispensing drugs; to the Art. 287 makes § any person possess any dangerous it unlawful for unless practitioner; controlled substance validly pursuant prescription obtained to a valid or order from a likewise, by fraud, it is unlawful to obtain such substance deceit, of 266A forgery, (b); (v) misrepresentation or Art. and subsection § (c) (4) any type advertising by pharmacists prohibits that im- § plies professional superiority over others. Sills, respect Supermarkets Corp. supra. both With Gen. claim, in Kingery: to a similar the court said “ pharmacists, probably minority, ... Some systematically prescriptions by family monitor allergic records to avoid reactions or antagonistic drugs, simultaneous use of of which patient’s may Although doctor be aware. monitoring completely is not because of effective mobility availability of customers and the nonprescription drugs may antagonistic, be public.” Supp. it is a benefit to the 305 F. at 824 (emphasis added). Supermarkets,
And in supra, the court stated: urged patient’s “It was records are pharmacist only reviewed purpose checking prices prescriptions previously on filled Perhaps for the customer. may practice many pharmacists, but there be infrequent pharmacist instances where a does ‘monitor’ the prescription purpose possibly for the detecting antagonistic drug. of an Infrequent may be, they as such may justify occasions enactment of 225 A. 2d [the at 737 statute].” added). (emphasis *8 noting the restraint that is reflected in those two
statements, might we observe “monitoring” that is one of the upon two reasons which each of those cases rested its decision.
Again, we think the correct answer argument to this Pastor, supra. found There aptly the court stated: believe, “We however, do not that this asserted [monitoring] reason is sufficient to sustain the prohibition. produced Commonwealth has no evidence extent, any, indicate the if to which pharmacists prescriptions, monitor and even the courts accepted which have this rationale have admitted monitoring that is ‘infrequent’ and ‘not completely Further, primarily it is the effective.’ physician’s duty to be certain that he is not prescribing drugs antagonistic already to those being patient. taken Indeed, his it appear would Legislature that if the inwas fact concerned about prescribing antagonistic drugs, it wotild have chosen a route more than simply prohibiting direct prices. of their . . 272 .” 2dA. at 493 (emphasis added).
Similarly, produced here no evidence was “to indicate the extent, any, pharmacists if to which prescriptions.” monitor strongly suspect We monitoring, may that which have been past, hardly common in today. exists The President of unfamiliarity the Board disclosed with this term when first asked to define it. Given the diversification of modern retailing practices mobility and society, quite of our it is likely physician that is better able to monitor the possible ingestion antagonistic than pharmacist. Therefore, context, in this we too are unpersuaded legislative employed means have a objects “real or they substantial relation” for which allegedly designed. are argues pharmacy profession
The Board next that since is a welfare, which affects the health and the state prohibit practices unseemly tend to result possibly advertising, lowering professional and Unquestionably, major upon premise standards. this is the Kingery Supermarkets, supra, both were decided. pharmacist’s position The Board likens the to that of physicians, opthalmologists, State, supra, Davis v. optometrists, opticians, Boehm, Pa. Ullom (1958); 142 A. Optical Co., supra, 2d Williamson v. Lee dentists, Examiners, supra. It Semler v. Dental also *9 beauty to the school says position is similar its Bd., supra, operators Salisbury Beauty in Schools v. St. constitutionality statutory upheld of the we where charging prices for the clinical work prohibition against analogy beauty The does performed by in schools. students schools, pharmacies, are here, beauty unlike apply since not relationship engaged with the consumer. in a business we Salisbury, said:
“ engaged in business_ are not . . . The schools engaged in public, are supplying to the but services practitioners of the qualifying students to become added). (emphasis art. . . .” 268Md. at 59 predominately- later, pharmacies are As we shall observe retailing enterprise. engaged in a below,
Furthermore,
Judge
in the court
noted
Carter
professional aspects
comparison
appellant’s
of the
inapposite.
medicine,
State,
pharmacy
supra,
and
Davis
Semler, supra,
in
and
were confronted
The Courts
Davis
advertising
upon
gullible public
with the effect
professional
was concerned
services.
Court Davis
psychology
“knowledge
physician would use
of mass
hopes
appealing
to the emotions
skill
Likewise,
credulous,”
Furthermore, professions none of the other is as involved retailing with pharmacy. as is part effort on the professional Board to demonstrate aspects pharmacy of witness, its Levin, sole Mr. Board, President of the failed completely. testimony replete His is with references to pharmacy’s retail characteristics. In describing how advertising draws the consumer pharmacy, into the he said: passes door, exposed
“Once he he is he is purchase anything vulnerable to in else the store. game, And you might this is whole retail say, today. This is what the retail business It a is. is prices method to the items at of that place will induce them to come buy into the things them, you all the other trying are to sell of deceitful, and that is what people certain lecherous prescription want to do with the business.” (emphasis added).
Ironically, he, Mr. Levin himself, admits that has an advertising program conjunction group with a of other proprietors, and said pharmacy that have a that “[w]e does pretty prescriptions.” (emphasis added). fine business Later, “unfortunately” he druggists also admitted that are essentially Furthermore, agreed retailers. he that aon average, only prescriptions national compounded, 10%of are also, Supermarkets Sills, 735; Corp. supra, see Gen. but this was not the case his store. No evidence was submitted to show representative that this statistic is not Maryland. says the State of Mr. Levin also he has not posting harm prices drugs noticed as a result of required by the National Economic Stabilization Act. testimony pharmacy
Mr. Levin’s underscores the fact that rapidly evolving is exclusively into almost a retail business prescription drugs where only constitute about 11% the above, only drug stores;3 as noted volume of chain sales drugs compounded. prescription are The retail 10% of pharmaceutical were noted aspects business also Likewise, Department study prepared by of Justice.4 Requirements “Posting Internal Revenue Services’s Prescription Drugs” notes:5 Retailers of drugs is considered dispensing “The therefore, isit covered activity, to be retail base regulations requiring that Price Commission a professional prices posted. The fact drugs dispense is employed pharmacist and does those incidental the sale of the transaction." alter retail nature *11 added). (emphasis beyond pharmacy the regulation of extends When the safety products, pharmacists and the qualifications of profession, aspects of encompasses the commercial and arise, validity Milligan questions of constitutional serious 491, Registration Pharmacy, Mass. Board of (1965). N.E.2d
Supermarkets, supra, the case cited the Board its reasoning leading authority, supports lends a final our and appellants: arguments coup grace to the made de both pharmacy “The field of an admixture of professional The and functions. commercial practicing profession by pharmacist, while drugs rendering compounding the incidental already made, reference been to which has services May 29, Druggist, at 17. 3. American major Department effect believes that “The of Justice 4. advertising price legislation regulations prohibiting competition resulting engage price with reduce incentives is to retailer added). Paper Policy public.” (emphasis higher Research costs to the Department Regarding of Justice State the United States Statement of Restrictions on Drugs (Summer, Advertising Prescription Retail 1971). Service, Treasury, Economic Stabilization Revenue U.S. Internal 5. Prescription Drugs,” “Posting Requirements Program, for Retailers (Rev. 9-72) Washington, D. C. Publication S-3010 engaged also is in a commercial requiring venture merchandising marketing techniques. This dichotomy recognized has been professions, other with legislation the result regulating the sustained', aspects commercial thereof has not been (citations omitted).
“Additionally, though statutory proscription of advertising professional services has been upheld, may it be observed respective courts were' professions concerned with exclusively rendering involved the of a service rather than vending of- commodities. See Oregon Semler v. State Board Examiners, of Dental supra. The sought various courts to foster a personal relationship predicated upon a confidence rendering in the one the service rather than a relationship upon price. based That rationale seems inapplicable pharmacy. pharmacist dispenses commodity quality of which is strictly regulated by state statutes . . . .” 225 A. 2d at 737. sum, specific statute at bar bears no relation to the
wholly permissible regulation professional services affecting health Rather, prohibits and welfare. it goods of consumer scope sold within the pharmacist’s activity. such, retail As it cannot be constitutionally particular sanctioned on the basis advanced *12 here.
There is no in the merit Board’s fourth contention that advertising the drug prices subject physicians would pressure by patients prescribe their larger quantities drugs medically than indicated to enable the latter to avail quantity Supreme themselves of discounts. The Court of in Inc., Florida City, supra, provided Stadnik v. Shell’s an appropriate answer to this contention:
“ proceeds . . . The rule the on notion that the prescription drug advertisement of a subject will physicians the pressures to some sort of irresistible their prescribe for will them force patient demand and simply the basis of patients on well-being of the physical regard to the without completely disregards the concept patient. This integrity medical ethical professional and patients. for prescribing remedies profession in probability actually suggests Furthermore, the it has more actuality, the rule unethical conduct. prohibiting regulation to an economic resemblance drug prescription business in price competition the guarding the regulation to a than it does 2d at 875. health.” 140So. drugs is earlier, prescription the sale of we indicated
As correctly Thus, as thoroughly regulated in this state. Pennsylvania the court below by both observed consumer, Pastor, who physician, not the in it is the court prescribed any, or drugs, if are to be what determines argument reasons, For these administered. generate drugs will retail greater in a demand consumption result
increased upholding support the statute. provides no challenges arguments, Board Aside from the above Pastor, authority process” issue analysis the “due controlling. The Judge unquestionably found Carter standard the constitutional of its contention is that thrust striking down the applied the court Pastor followed Pennsylvania not the same as that statute is or this Court. Supreme of the United States Court either distinguished Pennsylvania argues court that the The Board Supreme Court their and the state courts between arguments in handling process economic respective of due maintains, Furthermore, since the Board regulation cases. regulatory legislation would be found type this reasoning Supreme of recent Court under the constitutional so, says, it cases, Maryland statute. This is must the so testing police rule in Maryland applies the same because Supreme power as does the Court. sure, Pennsylvania did state that: court
To be *13 118
“ . Supreme . . Court of the United States has [T]he original proposition ‘returned to the constitutional that courts do not substitute their social and judgment legislative economic beliefs for the bodies, (citations pass who are elected to laws.’ omitted). legislative judgment’ ‘Deference to the is watchword, (citations omitted). now the federal ‘It enough there is an evil at hand for correction, might thought and that it be that the legislative particular way measure was a rational Optical to correct it.’ Williamson Lee Oklahoma, Inc., 483, 488, 461, 464, 348 U.S. 75 S.Ct. (1955). 563 Tanner, 99 L.Ed. See also Adams v. 244 590, 599-600, 662, 665, 666, U.S. 37 S.Ct. 61 L.Ed. (1917)(Brandéis, J., dissenting). 1336 may “While this test mean the federal process courts ‘due barrier to substantive legislation as to economic matters has been removed,’ effect the same cannot be said with respect to state courts and state constitutional law. This difference between federal and state represents development, constitutional law a sound one which takes into account the fact that ‘state position in a courts better review local Supreme legislation economic than the Court. State courts, precedents since their are national authority, may adapt their local better decisions to ” economic conditions and needs.’ 272A. 2d at 490. Supreme This trend in the dealing Court decisions with the Due matters,” distinguished Process Clause “economic as personal rights, from has received much attention from the McCloskey, commentators. Economic Due Process and the Supreme Reburial, Sup. Court: An Exhumation and 1962 Ct. 34, presents comprehensive Rev. review subject, Stern, do Yesteryear— Problems Commerce and Due Process, (1951) 4 Vand. L. Rev. 446 and Brooklyn L. Rev. (1971). We development traced the this federal-state distinction Board, Brooks v. State Md. 98, 110-12, 195 (1963). A. 2d 728 *14 dichotomy
Despite reference to the federal-state the Pastor, disagree drawn from it we with the conclusion Pennsylvania unlike Board test that of Maryland. following leave no statements Pastor that both follow the same test: doubt
“Through
guided by
all these cases we have been
proposition
purports
that ‘a law which
to be an
police power
exercise of
must not be
unreasonable, unduly
patently
oppressive or
beyond
case,
the necessities of the
and the means
employs
which it
must have
real and substantial
objects
.”
sought
relation
attained.’ . .
to the
to be
added).
(emphasis
“Examining
turn, however,
each reason in
we will
find that none meet the test
out in
set
[Gambone
(1954)]:
Commonwealth,
375 Pa.
“We find that thus objects bears no substantial relation to of the sought which . . . were to be 272 A. 2d at obtained.” 494. Maryland virtually
The rule of the cases is As identical. recently Salisbury Beauty Bd., supra, Schools v. St. applicable principles length, where we recited the we said: “ ‘ . . . subject legislative Freedom of contract is regulation health, public safety, the interest of legislation morals or welfare. But such must unreasonable, arbitrary, capricious, or and the means selected must have real and substantial ” object sought
relation to the to be . . attained. .’ (emphasis added). Md. at Thus, applied we stating: this standard there in
“Although
prohibition
the effect
in Art.
§
(a), may
competition
be to undertake to limit
beauty
registered
between the
beauty
schools and
shops,
Legislature
adopt
was free to
such an
policy
long
appeared
economic
reasonably
so
as it
necessary
protect
welfare.
. . . We
say,
cannot
prices’
extent it
‘control
competition,
affect
that the statute is unreasonable
*15
it does not bear a real and substantial
relationship
object sought
to the
to be
. .”
attained..
added).
(emphasis
Thus, arguments advanced the Board object sought to be relation to the “real and substantial no contrary, Quite attained,” by selected.” to the the “means existence the statute continued the evidence indicates that public health and welfare. inversely related to “unreasonable, label Consequently, we not hesitate to it do an unconstitutional arbitrary capricious,” and therefore objectives police power. Although the exercise of the ones, are, indeed, commendable to the statute attributed relation” between them and the no “substantial there is (iv) is, hold, and we so that subsection The result statute. (4) (c) Due violates the Process Clause 266A § Maryland and Art. 23 of the Amendment Fourteenth Rights. Declaration of points.
Lastly, makes two related It contends the Board paints when it below with too broad a brush that the court right grants appellees “the unrestricted to advertise they dangerous drug prices, be controlled whether drugs, free from or other substances *16 price. shop who has a car and can around for the best consumer Consequently, number of merchants Competition, dwindling poor captive have become a audience for the Drug neighborhoods.” in their RX: Retail Price by Congressman Benjamin Study Rosenthal A S. Consumer 1973) (March, 20. at League survey city 7. “A Junior Baltimore of 69 stores wide found prices. price ranged $5, variations in another The of one from $1 to Maryland $2.40 $6 $3.77 from to and a third from to $9.50. Group survey Public Interest Research stores. The Junior similar in found results its of 33 League survey higher prices prevailed found that the in white, wealthy neighborhoods and, distressingly, inner-city in black neighborhoods prices prevailed Metropolitan and near the Senior Citizens Center. Lower working Evening Sun, Sept. 13, in white class areas.” The 1973, A14, 2. col. states, survey pharmacies Another of 147 in 17 includ- 81 communities ing Maryland, 1972, ranges July-August, such as conducted in disclosed and penicillin 400,000 100 $15 $1.50 for 100 $20 $2.50 G units Pricing, tetracycline mg., Prescription Drug Consumer Federation 250 America, Sept. 1972, at X. 122 [Board],” further, by
interference Court “[n]o gone in the United has as far States lower Court case, declaring drug price advertising the instant statutes agree gloss placed . . .” We unconstitutional. do not with the by upon the Board the decision of the lower court. (iv) dangerous Subsection does not mention “controlled substances.” Nor do we share the view Board’s below, intact, permit if decision reached left "... will pharmacist, pharmacy, aor to advertise even the most dangerous drug by description, price otherwise, or without accountability to the Board . . . .” Elsewhere we have comprehensiveness regulatory stressed the scheme applicable pharmacies; persuaded thus we are not that the incapable regulation. Board is rendered of effective companion argument A by advanced the Board is that the (1957, decision reached here will cast doubt on Code 1971 Vol.) Repl. 27, (e) (ii).8 Art. The short answer to this § contention, judge stated, as the trial is that “the statute under constitutional attack the instant case is not Art. (e) (ii),” note, which is a criminal statute. We § furthermore, proscribes that the here advertising statute “prescriptions, dangerous nonproprietary or drugs,” (e) (ii) whereas “any restricts the § dangerous drug controlled prescription drug.” By or definition, (a), as contained in 300 “prescription the term § drugs” any dangerous substance,” mean does “not controlled by is defined elsewhere schedule. any event, lingering doubts, lest there be we are (e) (ii), not here concerned carefully with and we § expressing any opinion refrain from regarding its constitutionality vel non. To underscore the limits of our holding, repeat go we that we no further than to declare (iv) (4) (c) subsection of Art. 266A unconstitutional aas § violation of the Due Process Clause of the Fourteenth person permitted through any “No 8. shall be to advertise media other professional publication any than a prescription name.” dangerous drug or trade controlled or drug generic formulary either its ‘trade name’ or its
123 Maryland Declaration 23 of the Amendment and Art. Rights. appellant pay affirmed; to
Order costs.
Smith, J., dissenting: valid exercise of is a opinion that the statute
I of the am Therefore, I reverse. power. would police legion in opinion, are majority cases As noted law expediency of a holding wisdom or Maryland that the police power is not State adopted in the exercise will not void be held judicial review. Such statutes subject to relating welfare any to if are there considerations Therefore, they supported. the statute be by which can constitutionality. strong presumption of with it a carries in a expressed number has for the Court The test been thing. basically adding up ways, same different all Transp. Judge Barnes in A H Inc. version of & (1968), Baltimore, 518, was: 249 240A. 2d 601 Md. look, legislative is when a action
“The courts challenged, set of circumstances that any cases.) (Citing Id. at justify the action.” added.) (Emphasis 2. footnote Examiners, Md. A. 2d 222 160
In Pitts v. State Bd. of (1960),Judge said: 200 Henderson legislative is scheme for the adequacy
“The determine, strong Legislature and there is constitutionality. favor presumption enough to in its sustain Reasonable doubt favor Comm., 1, 6, 221 Md. Magruder v. Hall it. of Rec’ds added.) (Emphasis 227. A. 2d 155 899.”Id. yet way year earlier Judge put it another this O’Donnell Bd., 32,Md. A. 2d Salisbury Beauty v. St. Schools (1973): reasonably “If of facts can conceived state
that would sustain constitutionality statute within police power, exercise of the existence of that state of facts as a basis for the passage of the law must be assumed.” (Citing cases.)/!, at49.
In
Board,
98, 111,
Brooks v. State
233 Md.
“It is that there is an evil hand for a.t correction, might thought and that it that the particular legislative way measure awas rational to correct it.” at 488. Id. Liggett 105,
In Baldridge, 57, 278 U. Co. v. S. 49 S. Ct. (1928), L. Ed. 204 the Court held unconstitutional Pennsylvania ownership statute which restricted pharmacies drugstores registered pharmacists. I find it interesting in the context of this case to note that Mr. Justice Brandéis, Holmes and Mr. Justice two of the liberal more time, members of the Court at that dissented. Mr. Justice Brandéis in the part: concurred Holmes dissent which said
“The Constitution does not make it a condition of preventive legislation perfect that it should work a enough questioned cure. It if the act has a tendency manifest to cure ator least to make the evil . . less. . police power
"... I think . . . that as that explained clearly term has been defined and this, extends to a law like whatever I think of wisdom, its and that decree should be the. affirmed.” Id. 115. Co., 220, Family Daniel Ins. U. S. 69 S. Ct.
L.
(1949),
Ed.
upheld
“Looking the form of this recognize it as an basis, we fail to cannot essential *19 invalidity because this Court argument desirability legislation. disagrees with the saywe our when We the obvious rehearse equipped We are not function is thus misconceived. desirability; court cannot eliminate and a decide if happen do to suit its tastes it measures which not system. The forum seeks to maintain a democratic legislation is a ill-considered for the correction of legislature. responsive say is
“We that South Carolina not cannot call the funeral insurance business an entitled to say relation evil. Nor we that the statute has no can inquiry There to the elimination those evils. our stop.” must at 224. Id. Douglas Williamson, for a unanimous Mr. Justice said
Court: day gone the Due
“The when this Court uses is Amendment Clause the Fourteenth Process laws, regulatory of business state strike down unwise, conditions, they may be because industrial particular harmony with a improvident, or out York, 291 thought. U. See Nebbia v. New school of Parrish, 502; U. S. S. Hotel Co. v. West Coast 236; Nebraska, 379; 313 U. S. Lincoln Olsen v. 525; Co., 335 U. S. Daniel v. Union Northwestern v. 220; Co., Lighting, Day-Brite 336 U. S. Family Ins. emphasize Missouri, again U. 421. We S. Inc. v. Illinois, what Chief Justice Waite said Munn v. 113, 134, protection against ‘For abuses 94 U. S. people legislatures polls, must resort to the not ” Id. at 488. courts.’ against background this be is this statute should It evaluated. upheld by judge ours three
A statute similar to was Supp. Drug 305 F. Company Kingery, court Patterson 1969).1 appealed (W.D. apparently This was not Va. case Supreme Judge there for the Butzner said to the Court. court: significant prescriptions, nevertheless a
“A few but number, drugs be available filled from cannot form, be so the medicine must manufactured compounded pharmacists. Some minority, systematically pharmacists, probably a by family prescriptions records to avoid monitor allergic the simultaneous use of reactions patient’s antagonistic drugs, of doctor which Although monitoring may aware. not be mobility completely effective because availability nonprescription customers and antagonistic, it is a benefit to *20 public. the dispensing find that evidence we
“From the health, safety public prescription drugs the affects we that state’s And conclude the and welfare. regulation pharmacy as classification arbitrary is or invidious.” professional practice at 824-25. Id. opinion, similar majority another in the
As is conceded grounds against constitutional upheld was attack on statute Super. 326, 225 Sills, 93 N. J. Corp. Supermarkets Gen. Attorney Maryland a brief submitted 1. It is noted that the General amicus there as curiae. (1966). Judge Mintz said there as regard I what A. 2d 728 He stated: here. relevant profession, I pharmacy is a concluding
“In 90% of the the fact that over unmindful of am not pre-compounded; that dispensed are prescriptions tablets is to count the is, pharmacist’s function the them prescription and transfer for the called by the manufacturer container from the furnished dispensed ultimately to the into the bottle however, appear, purchaser. will hereinafter As goes beyond the sale pharmacist that of role of the filling prescription the commodity. In of a physician by informing pharmacist often aids drugs. properties and effects of various him of the generic compound, prescription for a he If the calls dispensed. particular brand be chooses the to Additionally, may prescription he ‘monitor’ each dosage, possibly whether the to determines prescribed drug may antagonistic to another previously prescribed patient by for the another physician. pharmacy profession, practice is a
“Since welfare, which affects the health and Legislature police power may in the exercise of its legislation appropriate enact such as it deems safeguard public interest, practices and ban tending unseemly competition lower Abelson’s, Jersey standards of service. Inc. v. New (1950)].” Optometrists, N. J. 412 State Board [5 at 338. Id.
“Though drug primary responsibility physician, rests with the pharmacist plays ancillary important an but role insuring proper drug dosage are provided. Accordingly, pharmacist required prescriptions. maintain records all N.J.S.A. *21 Thus,
45:14-15. if the frequents customer one pharmacy for all prescription of his needs, that pharmacist position is in a to check his records and thereby if prescription determine any way is in antagonistic by previous contra-indicated his prescription Legislature record. The may have concluded, important that this function of pharmacists impaired would be if they were permitted Legislature to advertise. The may have rate,’ determined that ‘cut promotional ‘discount’or any way encourage would patient pharmacy to seek offering drug at the cheapest price. ‘price As a result shopping’ pharmacist presumably position would not be in a effectively determine,. by reference to his prescription records, particular if a drug is antagonistic previously to one prescribed, possibly physician. another urged patient’s
“It was that records are pharmacist only reviewed purpose for the checking prices prescriptions previously on filled Perhaps for the may customer. practice be the many pharmacists, may but infrequent there be pharmacist where instances does ‘monitor’ the prescription purpose possibly for the detecting antagonistic an drug. Infrequent may be, they as such may justify occasions chapter enactment of 120. See Williamson v. Lee Optical Oklahoma, supra, U.S., p. 487; 461. S.Ct. argued
“Plaintiffs no evidence was presented pharmacist to indicate that who prescription drugs advertises at a discount would any way duty have a lesser to ‘monitor’ a prescription. True, duty to ‘monitor’ still exist, ability effectively might but the to do so impaired ‘shop’ if the customer tended to for his prescription needs.” Id. at 341-42. *22 — Advertising Prohibiting Annot., Drugs Prices also
See 1301(1972). A.L.R.3d it, I this statute and similarity, as between see There is a advertising relative to prohibiting numerous statutes Supermarkets. similarity mentioned was eyeglasses. This Maryland Board opinion that majority *23 regulate have to might the other. Or it conclude that both the sellers of frames and the of sellers were in a lenses business where advertising should be limited public or even abolished the interest. Examiners, Semler supra. v. Dental The advertiser may of using frames be his bring ads to buy customers who will If lenses. the advertisement of lenses is to be abolished or controlled, advertising the of frames must come under restraints; the same legislature or so the might We why think. see no constitutional reason State not treat all who deal with the human eye profession as members of a who should use no merchandising obtaining methods customers.” at 490. Id.
See also Head v. New Mexico Optometry, Bd. Exam. in 374 424, 1759, U. (1963). S. 83 Ct. 10 S. L.Ed.2d 983 A New Mexico statute forbade the “by any advertisement means any whatsoever prices ... or eyeglasses, terms on spectacles, lenses, frames mountings upheld or . .”. . It was against newspaper the attack of a and radio station whose portion areas of service included a of the State of Texas. The newspaper and radio enjoined station were accepting from publishing or within advertising New the Mexico of a Texas optometrist found to in violation of the New Mexico law. rejected The Court their that contentions the statute was an unconstitutional burden on interstate commerce and that it preempted was field the Federal Communications Act. (1959), 471, N.W.2d 396 the Fast, 2d Wis. v. Bedno making it unlawful to validity of a statute upheld the
court price or credit terms on indefinite definite advertise The court said: eyeglasses or frames. way Stats., in 153.10, no sec. language of
“The necessary spell proof fraud is indicates price-advertising its under out an offense statute is practice prohibition. against is that protect the
intended to price rather than filling to meet permit price patient. To needs of part who deal with of those on advertising, to leave eye, even truthful human practitioner unscrupulous open for the the door unsuspecting members of the lure and to defraud 442, 17 Johnson, Wis. public. In v.] [246 [Ritholz heavily upon (1945)], relied this court N.W.2d 590 Examiners Oregon Board Dental State Semler (2d) 608, 50, 311, (1934), 294 U.S. 148 Or. 34 Pac.
Sup. the court stated 79 L.Ed. where Ct. kind of question was whether unscrupulous advertising prohibited afforded perpetrating practitioner a fraud means *24 recognized deception upon patients. It there his was nothing although harmful itself that there is merely advertising prices, no doubt there could be practitioners to that unethical do resort price-advertising to methods to lure the credulous purpose fleecing them.” their offices for the Id.
at 477-78. constitutionality responded on the attack The court by saying: the statute they merely argument that are
“Plaintiffs’ merit. We cannot see that has no merchants eyeglasses more merchandise than are according prepared to the needs dentures. Both are glasses ‘Furnishing as much of the individual. public
affects health furnishing as does dentures,’ this court said in Johnson, Ritholz v. supra, page fact, 453. In it seems to us that a person’s gravely health be endangered more wearing improper glasses than wearing improper dentures.
“Articles clothing such as or shoes are merchandise, purchased by the consumer for comfort and Eyeglasses warmth. are worn for purposes. correctional The customer himself knows pair whether a a suit or of shoes fit him and will purposes serve the them; which he intends not, they if do he no suffers harm. But he rely must optician optometrist on word of the that the glasses sold proper to him contain the correction for vision; his and if the wrong may correction is he very well lasting injury sustain eyes. to his This is clearly a matter of health.” at 479. Id.
The fact that drugstore the modern is retail really bearing upon establishment validity has no of this Prescription drugs may statute. constitute “consumer goods,” majority them, as the refers to I but believe “the man in the regard street” would them as “consumer goods.” they Whether goods are or are not my consumer opinion irrelevant, is may be, however. majority It as the opinion says, prescription drugs that only constitute about 11% the drugstores. sales volume of chain suspect, I however, if one eliminated from that base the department stores, supermarkets, or whatever one wishes to call prescription them that have a corner, counter in one relationship drugs to total sales volume higher, would be that, too, much but is irrelevant.2 What is majority by Druggist, May 2. footnote referred to “American authority Druggist figure. Page at 17” for its of American 11% speech by president Kroger Company, refers on date largest grocery country. Kroger chain said . midwest the third parent company SupeRx Drug "the referred to as chain.” The reference to sales volume there the 460-unit store *25 is, “Twenty-two appearing percent volume, said, business, the chain’s he Rx of comes from as compared average drug to the for all chain national of 11% stores.” The constitutionally valid, is rational is whether there relevant may question be rested. upon which the statute basis the effect of majority apparently believes that The public to which store advertising the will be to educate advertising the prices. If can so educate has the lowest an increase in that should be public, it follows there then Bearing prices. the part with lowest on the of stores business usually brings every given a reaction action in mind that nature, I first see self-preservation is one of the laws of that Supermarkets. for the statute set forth rational basis one Jersey New court said: The relating protection
“In the statute to the further may public welfare, observed of it the health price advertising may encourage that discount buy unusually large quantities smaller retailers to drugs advantage cheaper in order to take prices purchases, and meet for such thus result, larger competition of outlets. As a potent may remain on shelf for otherwise they during period time, an extended ultimately be sold the customer. deteriorate known about the Dr. Friend testified that little is problems drug deterioration, but poses prime profession. situation concern Hence, buying if all deters the statute at such practices, interest its relation to manifest.” 342. Id. majority the ban states on prices imposes
prescription drug
a burden on senior citizens
investigation
they
“such
because
are unable to conduct
— just
many
“garden
like
motor
speaker
other
hose and
oil
his
sold
said
chain
prescription
drug
figure
business of
. . .” If his
11% for
stores .
surely
drug
accurate,
it
follows that
then
stores” is
“all chain
drugstores,
relationship
prescription
total sales
non-chain
business to
“garden
common, ordinary pharmacy
sell
hose and motor
that does not
higher.
oil,” is much
long way
departments,
from
which stores are
with
Stores
drugstore,
conception
in Giant of Md. v.
and Patuxent v.
of a
were discussed
common
the
State’s
(1973),
501, 517-18,
Attorney,
A.
2d
267 Md.
(1970).
Lexington,
for It permitting believes that advertising public thought the will be benefited. The that advertising provide there can be which will a meaningful comparing prices my opinion is, basis for borrow Denman, delusion, of Lord “a mockery words a and a 3 certainly exaggeration snare.” It be say would no that prescription department average drugstore of the carries separate prescription drugs. more than a thousand items effectively compare prices know, one To would need to compound, manufacturer, strength, addition to dosage being form of which the medicine is — prescribed complicated a lot different and a more lot than comparison shopping chickens, apples, for tomatoes, canned shoes, lady’s handbag. Advertising just or even a cannot make available a comparison to the rational for basis prices computer between one store and another. of a Short print-out, I fail comparison to see how a basis sound for prices Assembly might can be found. The General have well just prohibited advertising concluded that and for reason.
It must nothing be remembered that prevent there a given drug store from below selling its normal price in an persons effort to entice into the store those who might prescriptions have they for such have — higher prices making up filled elsewhere at had by raising prices. for reduction other aFor substantial period poultry industry time it was known fact in the on supermarkets, Delmarva that certain to lure customers into respective stores, offering “specials” their were on chicken at price production often below the processing cost of to the plant. Assembly might The General well have reached a drugs necessary similar conclusion decided that people health our should not used for “bait” advertising. Johnson, 246 Wis. Ritholz N.W.2d (1945), consideration, among the statute under other things, price made it unlawful to advertise definite on (1844). Queen, v. The and F. 155
3. O’Connell Clark upheld validity complete eyeglasses. The court portion opinion statute, reversing One a trial court. its reading my interesting and indicates fears are makes completely without foundation: constitutionality of have to rest the
“We do not case, upon wholly dentist [Modern the statute Examiners, 216 D. *27 Board S. Dentists v. State of (1934)]. in this W. 922 The evidence 256 N. Wis. by advertising used shows that
case operate defraud the actually plaintiffs does mostly poor plaintiffs of are public. The customers testimony own aim persons. plaintiffs by their The will reach where their advertisements to advertise particularly. They negroes’ ‘workers, foreigners and they bait, or as use the lure or advertisement as a persons to their to draw such call it ‘an inducement’ advertising is their general nature of stores. copy advertisement photostatic of an
shown following in printed Note the herewith. price $3.88;’
photostat: value ‘at the low of ‘$12.00 glasses prices you $3.88;’ you need at only ‘get the cost;’ ‘FREE;’ afford;’ ‘no extra ‘no extra can advertising. It charge.’ This its face is dishonest on manifestly aims and tends to mislead Oregon within the rule of Semler State Board v. Examiners, supra, and Commonwealth Dental Ferris, 233, N.E.(2d) 378, is there Mass. advertising.” fore fraudulent at 448. Id. regard pharmacist as a
All I have of the cases read states, person. true, majority that professional It is as the average drugstore in the much the business carried on ordinary retailing. However, with which we here that are part professional of the business. In concerned is the Semler Oregon had under consideration an statute the Court forbidding part activities on the number “advertising by including advertising prices dentists light signs, containing large display, glaring or means of tooth, teeth, bridge part representation of a work thereof the any portion or of the human head . . . The Court said the challenger claimed:
“that statements his advertisements were truthful good faith; and were made that these developed methods he had large and lucrative practice; through long training experience acquired ability he had superior great majority practicing dentists; that he had been able to operations, standardize purchase office supplies large quantities relatively and. at low prices, and thus to establish a uniform schedule of charges majority operations; for the also that he had made display contracts signs and for newspapers, advertisements in and had entered engagements, into other of which he would be unable to take advantage if legislation question .sustained, and, were event, in that his business destroyed would be materially impaired.” Id. at 610 of 294 U. S.
Mr. Hughes Chief Justice said for the Court:
“The policy State court defined the of the statute. while, The court itself, said that in there was nothing merely harmful advertising prices for dental displaying work or glaring signs illustrating bridge teeth work, it could not be practitioners doubted that who willing were not to abide profession the ethics of their often advertising resorted to such methods ‘to lure the ignorant credulous and public members of the to purpose their offices fleecing for the of them.’ The legislature aiming was advertising.’ ‘bait ‘Inducing patronage,’ court, ‘by said representations “painless dentistry,” “profes- of superiority,” examinations,” sional “free “guaranteed” was, general dental work’ as a rule, practice ‘the of the quack charlatan and the public.’ entice the authority
“We do not doubt the of the State to estimate the baleful effects of such methods and to put stop legislature to them. The dealing was not in commodities, with traders but with the vital public health, profession interest and with a treating bodily demanding ills and different standards of conduct from those which are competition traditional place. of the market community is concerned with the maintenance professional standards will only which insure not competency practitioners, protec- in individual but against prey upon tion those who would peculiarly susceptible imposition through alluring promises physical relief. And the community is providing safeguards concerned in only against deception, against practices but which would tend profession to demoralize forcing its unseemly rivalry members into an enlarge would opportunities of the least scrupulous. generally What is called the ‘ethics’ of profession is but expert consensus of opinion necessity as to the of such standards.” Id. at 611-12.
It seems to me Assembly that the might General well have operation concluded that in the professional portion of the drugstore prices should be forbidden as one “practices which would tend to demoralize the profession by forcing its members an unseemly into rivalry enlarge which would opportunities the least scrupulous.” my judgment yet valid, there is another rational basis for the statute which the Assembly might General have had mind, “monitoring,” i.e. mentioned in Supermarkets both say It is not physician Patterson. sufficient to that the pharmacist better able than monitor, that this is the *29 Druggist, May 29, 1972, page 4. American quote 17 carries a direct Kroger Company, “parent from company the President of of the 460-unit SupeRx Drug chain,” said, proper store where he “It is not or ethical to prescription drug prices advertise and we do not favor this.” physician’s responsibility. today basic We hear much necessity need and Prescription fail-safe mechanisms. drugs directly physical affect the health being well people. we, therefore, correctly our Can arbitrary label as a legislative possible desire that there be a second check against prescription antagonistic drugs to which might an allergic individual have an I reaction? think not. true, Patterson, “monitoring
It is as said is not completely mobility effective because of the of customers availability nonprescription drugs and the antagonistic.” day specialization In this in the medical field, may conceivably where an individual be under the care physician single of more than one at a time without a physician’s being charge, prescribing physician may in full a necessarily being be aware of all medicine taken an Approximately year ago individual. a I witnessed monitoring presented prescription, When action. with a alert, pharmacist an conscientious noted from his record patient allergic type drug. that the a He was to certain prescribing physician filling then called the before prescription. Fortunately, physician in that situation the already allergy had taken the known into consideration opinion particular drug was of the that the would have no circumstances, however, adverse effect. Under other pharmacist might prevented action of the well have Therefore, opinion that, I disastrous results. am of the put Patterson, monitoring public.” “is a benefit to the Surely upon be a this would rational basis which the action Assembly might of General have been rested. sight judicial,
We must not lose of the fact that ours is the legislative, might not the function. It well be that as legislators we would not enact law such as this. We are not legislators, however; judges. pointed out, we are IAs have we have said that reasonable doubt in favor of statute is enough legislative sustain it and that when action is challenged any the courts look to set of circumstances that might justify previously mentioned, the action. As Salisbury Beauty year: we said earlier Schools this reasonably
“If facts can be conceived state of *30 constitutionality of the that would sustain police power, within the exercise of statute as a basis for the of facts existence of that state Id., Md. passage law must be assumed.” at 49. I have opinion any hypotheses set
I one of the am of the passage of for the might have been a basis forth above a valid basis constitute law one of them would Accordingly, I would police power. for the exercise of the judge. of the trial reverse the action
KELLY STATE OF MARYLAND Term, 33, September 1973.]
[No. October 1973. Decided notes The similarity similarity, does not that Pharmacy a a also saw Annot., opinion. Price distinguished that See seem to — — 901, A.L.R.2d 935-949 Prohibiting 89 Requiring Posting laboratories, (1963). dental problem of Annot., Dentistry related, treated in Prosthetic is likewise — (1956). 1243, 1251-53 45 A.L.R.2d Regulation applicable In an statute was to Williamson Oklahoma ready-to-wear glasses. Mr. opticians, but to sellers As Douglas it, practical put effect of the law was Justice glasses optician fit that “no old into new frames or [could] supply lens, duplicate it be new lens a whether a or one to lens, prescription.” lost broken without The district or require a rebelled at the notion that a State could court optometrist opthalmologist prescription from an or “to take place them in new frames and then fit the old lenses and completed eyeglass spectacles to the wearer.” face (Emphasis opinion, Supp. 135.) that in its 120 F. It found ordinary optician through skill the mechanical devices fragment thereof, its could take a broken lens or a measure prescriptive that power, it terms. It concluded and reduce provision this arbitrarily the law with interfered Supreme optician’s right reversed to do business. The Court point. upon this “to solicit the statute also made it unlawful Williamson mountings optical frames, ... other of . . . the sale appliances.” The court conceded that under Semler district Examiners, L. Ed. 294 U. 55 Ct. S. S. v. Dental advertising relating eye (1935), regulation of “rationally permitted, being State was examinations held, however, It related to health and welfare.” eyeglass regulation of the frames intruded “into sale only casually related to the visual care of a mercantile field activity way public” which in no can “an restricted detrimentally people.” affect In reversing upon that point, Mr. Douglas Justice said for the Court: eyeglass “An frame, isolation, considered in only piece eyeglass merchandise. But an frame is not isolation, used in Judge as Murrah said in below; dissent lenses; it is with lenses, used pertaining they eye, do to the human enter the field Therefore, of health. legislature might regulate conclude effectively one it would