Maryland Board of Pharmacy v. Sav-A-Lot, Inc.

311 A.2d 242, 270 Md. 103, 1973 Md. LEXIS 668

• Court: Court of Appeals of Maryland
• Decided: October 31, 1973
• Docket: [No. 2, September Term, 1973.]
• Status: Published

Opinions

Levine, J.,

delivered the opinion of the Court. Smith, J., dissents and filed a dissenting opinion at page 123 infra.

We are presented here with a constitutional challenge to Maryland.Code (1957, 1971 Repl. Vol.) Art. 43, § 266A (c) (4) (iv)¹ resulting from an equity suit brought by appellees in the Circuit Court of Baltimore City. It subsequently became an action at law upon being transferred to the Superior Court of Baltimore City in consequence of a demurrer to the equity bill. Following a trial on the merits, in the course of which the parties presented considerable evidence, the court (Carter, J.) wrote a thoroughly-considered opinion, and declared the statute unconstitutional as a violation of appellees’ due process rights under the Fourteenth Amendment to the Federal Constitution.

Appellees, who are three corporations operating seven retail stores in Maryland, instituted the action. Five of these outlets trade under the name oí Sav-A-Lot and are essentially variety stores that do not contain pharmacy departments. The other two stores, known as Leader Drugs, operate pharmacies. The dispute between the parties began when appellant (the Board) refused to sanction the use of the name, "Sav-A-Lot Drugs” for appellees’ “prescription-type drug store[s]” because of the prohibition enunciated in Art. 43, ^ 266A (0(4) (iv). The controversy has now ripened into a broader issue — whether appellees may advertise prescription drug prices, as well as the terms proscribed by the statute that connote price discounts on such drugs.

Briefly summarized, the evidence in the trial court showed the following: Dr. Sidney Wolf, a specialist in internal medicine, a former staff member at the National Institutes of Health, and currently affiliated with an organization known as "Health Research Group.” testified to the “great variation in [prescription drug] prices[sj from store to store within a given city.” This testimony, which has neither been contradicted below nor is seriously challenged here, was amply supported by documentary evidence admitted by the trial court.

This witness also pointed out that senior citizens, many of whom are on “maintenance” drugs, are prevented from “shopping” for the lowest available prices by the statutory proscription against advertising. He testified that this is a matter of great concern for the elderly, the sick, and the economically disadvantaged, for it is such persons who are less mobile and therefore less able to survey drug stores for comparative prices. For these reasons, according to the witness, the consumer’s present dilemma of identifying those stores which offer the lowest prices for prescription drugs would be solved by removing the prohibition against prescription drug advertising. This testimony was supported, in part, by Father Donald Wilson, whose parish church operates an apartment house for senior citizens in the City of Baltimore.

To counter this evidence, appellant produced Norman J. Levin, a pharmacist in Baltimore County and President of the Maryland Board of Pharmacy. He presented a number of reasons why in his opinion, and that of the entire Board, the statute was necessary. We shall allude to them later in this opinion.

In this Court, appellant renews its argument that the statute does not violate the Due Process Clause of the Fourteenth Amendment, and urges upon us that it is a reasonable exercise of the state’s police power. Thus, the question we must answer is whether this statute, as an exercise of the state’s police power, provides a real and substantial relation to the public health, morals, safety, and welfare of the citizens of this state, Liggett Co. v. Baldridge, 278 U. S. 105, 111-12, 49 S. Ct. 57, 73 L. Ed. 204 (1928); Stevens v. City of Salisbury, 240 Md. 556, 564, 214 A. 2d 775 (1965); Davis v. State, 183 Md. 385, 393, 37 A. 2d 880 (1944); Dasch v. Jackson, 170 Md. 251, 263, 183 A. 534 (1936). The wisdom or expediency of a law adopted in the exercise of the police power of the state is not subject to judicial review, and such a statute will not be held void if there are any considerations relating to the public welfare by which it can be supported, Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 48, 300 A. 2d 367 (1973); Davis v. State, supra, at 397; State v. Seney Company, 134 Md. 437, 448, 107 A. 189 (1919). Hence, this statute carries with it a strong presumption of constitutionality, Gino’s v. Baltimore City, 250 Md. 621, 636, 244 A. 2d 218 (1968); Deems v. Western Maryland Ry., 247 Md. 95, 102, 231 A. 2d 514 (1967); Magruder v. Hall of Rec’ds Comm’n, 221 Md. 1, 6, 155 A. 2d 899 (1959).

Nevertheless, if a statute purporting to have been enacted to protect the public morals or the public safety has no real or substantial relation to those objects or is a palpable invasion of rights secured by fundamental law, it is our duty to so adjudge and thereby give effect to the Constitution, Mugler v. Kansas, 123 U. S. 623, 661, 8 S. Ct. 273, 31 L. Ed. 205 (1887); Hiller v. State, 124 Md. 385, 391, 92 A. 842 (1914); State v. Hyman, 98 Md. 596, 615, 57 A. 6 (1904).

Statutes similar to that under attack here have been upheld on constitutional grounds, Patterson Drug Company v. Kingery, 305 F. Supp. 821 (W.D. Va. 1969); Supermarkets Gen. Corp. v. Sills, 93 N. J. Super. 326, 225 A. 2d 728 (1966). Other states have, however, declared such statutes unconstitutional, Florida Board of Pharmacy v. Webb’s City, Inc., 219 So. 2d 681 (Fla. 1969); Stadnik v. Shell’s City, Inc., 140 So. 2d 871 (Fla. 1962); Pennsylvania State Board of Pharmacy v. Pastor, 441 Pa. 186, 272 A. 2d 487 (1971), 44 A.L.R.3d 1290. Other states have resolved analogous conflicts relying upon other grounds, see West Romaine Corp. v. California State Board of Pharmacy, 266 Cal. App. 2d 901, 72 Cal. Rptr. 569 (1968); Oregon Newspaper Publishers Ass’n v. Peterson, 244 Ore. 116, 415 P. 2d 21 (1966).

In Patterson Drug Company v. Kingery, supra, a three-judge federal court had before it a Virginia statute which subjected any pharmacist to a charge of unprofessional conduct who:

“issues, publishes, advertises or promotes, directly or indirectly, in any manner whatsoever, any amount, price, fee, premium, discount, rebate or credit terms for professional services or for drugs containing narcotics or for any drugs which may be dispensed only by prescription.” 305 F. Supp. at 823.

Relying principally upon the cases of Williamson v. Lee Optical Co., 348 U. S. 483, 75 S. Ct. 461, 99 L. Ed. 563 (1955) and Semler v. Dental Examiners, 294 U. S. 608, 55 S. Ct. 570, 79 L. Ed. 1086 (1935) for the rationale that the practice of pharmacy is a professional pursuit — and thus “subject to regulation and control in the public interest” — the federal court in Virginia sustained the prohibition against advertising the retail prices of prescription drugs as a constitutional exercise of the state’s police power.

In Supermarkets, supra, the New Jersey court upheld a state law which declared as grossly unprofessional conduct:

“The promotion, direct or indirect, by any means, in any form and through any media of the prices for prescription drugs and narcotics or fees or for services relating thereto or any reference to the price of said drugs or prescriptions whether specifically or as a percentile of prevailing prices or by the use of the terms ‘cut rate,’ ‘discount,’ ‘bargain,’ or terms of similar connotation”; 225 A. 2d at 732.

In part, the court applied the same reasoning as the Kingery court, and concluded that the plaintiffs had not rebutted the “strong presumption of constitutionality” with which the statute was cloaked.

In Stadnik v. Shell’s City, Inc., supra, the Florida Supreme Court affirmed a lower court ruling which struck down as unconstitutional a regulatory measure promulgated by the State Board of Pharmacy against advertising “. . . the name or price of tranquilizing drugs or antibiotics or other drugs which can be purchased and dispensed only by means of a prescription from a physician,” 140 So. 2d at 872. There, as in the Virginia, New Jersey and Pennsylvania cases cited above, the court was,met by a contention that the statute was a. reasonable exercise of the state’s police power. It rejected that argument, however, holding that there was “no reasonable justification for such an administrative intrusion on private rights when the regulation is so completely lacking in public benefit,” 140 So. 2d at 875. Later, upon the authority of Stadnik, the Florida Supreme Court, in Florida Board of Pharmacy v. Webb’s City, Inc., supra, declared unconstitutional a statute which provided:

“No pharmacist, owner or employee of a retail drug establishment shall use any communication media to promote or advertise the use or sale of any of the following:

“(f) Any drugs which require a prescription.” 219 So. 2d at 681 (emphasis omitted).

In Pennsylvania State Board of Pharmacy v. Pastor, supra, the Pennsylvania Supreme Court considered the constitutionality vel non of a statute which made it unlawful for a pharmacist to advertise the prices of dangerous or narcotic drugs. Elsewhere the statute defined as “dangerous” all drugs which can be dispensed only with a physician’s prescription. The court found that the statute did not bear a “substantial relation to any of the objects” to which it was directed, 272 A. 2d at 494; thus it held the statute unconstitutional insofar as it prohibited the advertising of “dangerous drugs,” 272 A. 2d at 495.

The Board here, in arguing for the constitutionality of the statute, advances these grounds to support its position:

(1) That the advertising of drug prices will increase the demand for drugs, thereby creating an atmosphere conducive to drug abuse.

(2) By encouraging consumers to “shop around,” the advertising of drug prices will make it unlikely that they will patronize only one pharmacy. Thus, the pharmacist will no longer be in a position to “monitor” prescriptions to determine whether the consumer is using antagonistic drugs.

(3) That, since pharmacy is a profession which affects the public health and welfare, the state, in the exercise of its police power, may prohibit such advertising to prevent rivalry demeaning to the profession.

(4) That advertising of drug prices will result in increased pressure on physicians to prescribe larger quantities than are medically indicated to enable their patients to take advantage of quantity discounts.

The first reason asserted by the Board in defense of the statute is that the advertising of drug prices will increase the demand for dangerous drugs. Undoubtedly, the answer to this argument is found in the comprehensive regulatory scheme reflected by other provisions of the Maryland Code.² In the face of a contention similar to that being made here, the Pennsylvania Supreme Court in Pastor, supra, said:

“We must therefore conclude that because of the highly regulated structure of the pharmaceutical profession, and the fact that the consumer cannot choose his purchases, it would appear most unlikely that advertising the prices of retail prescription drugs would, or could, have any impact on the demand or consumption of such drugs. ...” 272 A. 2d at 493.

We think that conclusion is apposite here.

The second argument made by the Board is that advertising of drug prices will encourage consumers to “shop around,” thus preventing pharmacists from monitoring prescriptions. In so contending, the Board derives only limited support from the two cases upon which it relies most heavily, Patterson Drug Company v. Kingery and Supermarkets Gen. Corp. v. Sills, both supra. With respect to a similar claim, the court said in Kingery:

“ ... Some pharmacists, probably a minority, systematically monitor prescriptions by family records to avoid allergic reactions or the simultaneous use of antagonistic drugs, of which the patient’s doctor may not be aware. Although monitoring is not completely effective because of the mobility of customers and the availability of nonprescription drugs which may be antagonistic, it is a benefit to the public.” 305 F. Supp. at 824 (emphasis added).

And in Supermarkets, supra, the court stated:

“It was urged that the patient’s records are reviewed by the pharmacist only for the purpose of checking prices on prescriptions previously filled for the customer. Perhaps that may be the practice of many pharmacists, but there may be infrequent instances where a pharmacist does ‘monitor’ the prescription for the purpose of possibly detecting the prescription of an antagonistic drug. Infrequent as such occasions may be, they may justify the enactment of [the statute].” 225 A. 2d at 737 (emphasis added).

In noting the restraint that is reflected in those two statements, we might observe that “monitoring” is one of the two reasons upon which each of those cases rested its decision.

Again, we think the correct answer to this argument is found in Pastor, supra. There the court aptly stated:

“We do not believe, however, that this asserted reason [monitoring] is sufficient to sustain the prohibition. The Commonwealth has produced no evidence to indicate the extent, if any, to which pharmacists monitor prescriptions, and even the courts which have accepted this rationale have admitted that monitoring is ‘infrequent’ and ‘not completely effective.’ Further, it is primarily the physician’s duty to be certain that he is not prescribing drugs antagonistic to those already being taken by his patient. Indeed, it would appear that if the Legislature was in fact concerned about the prescribing of antagonistic drugs, it wotild have chosen a route more direct than simply prohibiting the advertising of their prices. . . .” 272 A. 2d at 493 (emphasis added).

Similarly, here no evidence was produced “to indicate the extent, if any, to which pharmacists monitor prescriptions.” We strongly suspect that monitoring, which may have been common in the past, hardly exists today. The President of the Board disclosed unfamiliarity with this term when first asked to define it. Given the diversification of modern retailing practices and the mobility of our society, it is quite likely that the physician is better able to monitor the possible ingestion of antagonistic drugs than the pharmacist. Therefore, in this context, we too are unpersuaded that the legislative means employed have a “real or substantial relation” to the objects for which they are allegedly designed.

The Board next argues that since pharmacy is a profession which affects the public health and welfare, the state may prohibit practices that tend to result in unseemly advertising, and possibly the lowering of professional standards. Unquestionably, this is the major premise upon which Kingery and Supermarkets, both supra, were decided.

The Board likens the pharmacist’s position to that of physicians, Davis v. State, supra, opthalmologists, optometrists, and opticians, Ullom v. Boehm, 392 Pa. 643, 142 A. 2d 19 (1958); Williamson v. Lee Optical Co., supra, and dentists, Semler v. Dental Examiners, supra. It also says that its position is similar to the beauty school operators in Salisbury Beauty Schools v. St. Bd., supra, where we upheld the constitutionality of the statutory prohibition against charging prices for the clinical work performed by students in beauty schools. The analogy does not apply here, since beauty schools, unlike pharmacies, are not engaged in a business relationship with the consumer. In Salisbury, we said:

“ . . . The schools are not engaged in the business_ of supplying services to the public, but are engaged in qualifying students to become practitioners of the art. . . .” 268 Md. at 59 (emphasis added).

As we shall observe later, pharmacies are predominately-engaged in a retailing enterprise.

Furthermore, as Judge Carter noted in the court below, appellant’s comparison of the professional aspects of pharmacy and medicine, Davis v. State, supra, is inapposite. The Courts in Davis and Semler, supra, were confronted with the effect upon a gullible public of advertising professional services. The Court in Davis was concerned that the physician would use “knowledge of mass psychology and skill in appealing to the emotions and hopes of the uninformed and credulous,” 183 Md. at 394. Likewise, in Semler, supra, the Supreme Court was concerned with the use of “advertising methods ‘to lure the credulous and ignorant members of the public to [dentists’] offices for the purpose of fleecing them,’ ” 294 U. S. at 612. Clearly, the thrust of these cases was the protection of an unwitting public against the lure of misleading advertising of professional services. These arguments would be more appropriately advanced in support of Code Art. 43, § 266A (c) (4) (v) which prohibits pharmacists from advertising their “professional superiority.” They are unpersuasive here. When describing the quality of services, advertising may be prone to distort; when listing definite prices or discounts, it serves as a tool to educate rather than to deceive. Thus, pharmacists may be distinguished from the other ‘"professions” discussed above, in that price advertising of retail drugs casts no unfavorable reflection on the professional aspect of pharmacy by deceiving the public about the type of services available.

Furthermore, none of the other professions is as involved with retailing as is pharmacy. The effort on the part of the Board to demonstrate the professional aspects of pharmacy by its sole witness, Mr. Levin, President of the Board, failed completely. His testimony is replete with references to pharmacy’s retail characteristics. In describing how advertising draws the consumer into the pharmacy, he said:

“Once he passes the door, he is exposed and he is vulnerable to purchase anything else in the store. And this is the whole retail game, you might say, today. This is what the retail business is. It is a method of advertising items to the public at prices that will induce them to come into the place to buy all of the other things you are trying to sell them, and that is what certain deceitful, lecherous people want to do with the prescription business.” (emphasis added).

Ironically, Mr. Levin admits that he, himself, has an advertising program in conjunction with a group of other proprietors, and said that “[w]e have a pharmacy that does a pretty fine business in prescriptions.” (emphasis added). Later, he also admitted that “unfortunately” druggists are essentially retailers. Furthermore, he agreed that on a national average, only 10% of prescriptions are compounded, see also, Supermarkets Gen. Corp. v. Sills, supra, at 735; but that this was not the case in his store. No evidence was submitted to show that this statistic is not representative of the State of Maryland. Mr. Levin also says he has not noticed any harm as a result of posting the prices of drugs as required by the National Economic Stabilization Act.

Mr. Levin’s testimony underscores the fact that pharmacy is rapidly evolving into almost exclusively a retail business where prescription drugs constitute only about 11% of the sales volume of chain drug stores;³ and as noted above, only 10% of prescription drugs are compounded. The retail aspects of pharmaceutical business were also noted in a study prepared by the Department of Justice.⁴ Likewise, the Internal Revenue Services’s “Posting Requirements for Retailers of Prescription Drugs” notes:⁵

“The dispensing of prescription drugs is considered to be a retail activity, and therefore, it is covered by Price Commission regulations requiring that base prices be posted. The fact that a professional pharmacist is employed to dispense drugs is incidental to the sale of those drugs and does not alter the retail nature of the transaction." (emphasis added).

When the regulation of pharmacy extends beyond the qualifications of pharmacists and the safety of the products, and encompasses the commercial aspects of the profession, serious questions of constitutional validity arise, Milligan v. Board of Registration in Pharmacy, 348 Mass. 491, 204 N.E.2d 504, 510 (1965).

Supermarkets, supra, the case cited by the Board as its leading authority, supports our reasoning and lends a final coup de grace to the arguments made by appellants:

“The field of pharmacy is an admixture of both professional and commercial functions. The pharmacist, while practicing a profession by compounding drugs and rendering the incidental services to which reference has already been made, also is engaged in a commercial venture requiring merchandising and marketing techniques. This dichotomy has been recognized in other professions, with the result that legislation regulating the commercial aspects thereof has not been sustained', (citations omitted).

“Additionally, though statutory proscription of advertising for professional services has been upheld, it may be observed that the respective courts were' concerned with professions which exclusively involved the rendering of a service rather than the vending of- commodities. See Semler v. Oregon State Board of Dental Examiners, supra. The various courts sought to foster a personal relationship predicated upon a confidence in the one rendering the service rather than a relationship based upon price. That rationale seems inapplicable to pharmacy. The pharmacist dispenses a commodity the quality of which is strictly regulated by state statutes . . . .” 225 A. 2d at 737.

In sum, the specific statute at bar bears no relation to the wholly permissible regulation of professional services affecting the public health and welfare. Rather, it prohibits advertising of consumer goods sold within the scope of the pharmacist’s retail activity. As such, it cannot be constitutionally sanctioned on the particular basis advanced here.

There is no merit in the Board’s fourth contention that the advertising of drug prices would subject physicians to pressure by their patients to prescribe larger quantities of drugs than medically indicated to enable the latter to avail themselves of quantity discounts. The Supreme Court of Florida in Stadnik v. Shell’s City, Inc., supra, provided an appropriate answer to this contention:

“ . . . The rule proceeds on the notion that the advertisement of a prescription drug will subject the physicians to some sort of irresistible pressures that will force them to prescribe drugs for their patients simply on the basis of patient demand and without regard to the physical well-being of the patient. This concept disregards completely the professional and ethical integrity of the medical profession in prescribing remedies for patients. Furthermore, it actually suggests the probability of unethical conduct. In actuality, the rule has more resemblance to an economic regulation prohibiting price competition in the prescription drug business than it does to a regulation guarding the public health.” 140 So. 2d at 875.

As we indicated earlier, the sale of prescription drugs is thoroughly regulated in this state. Thus, as correctly observed by both the court below and the Pennsylvania court in Pastor, it is the physician, not the consumer, who determines what drugs, if any, are to be prescribed or administered. For these reasons, the argument that the advertising of retail prescription drugs will generate increased consumption or result in a greater demand provides no support for upholding the statute.

Aside from the above arguments, the Board challenges the analysis of the “due process” issue in Pastor, the authority which Judge Carter unquestionably found controlling. The thrust of its contention is that the constitutional standard applied by the court in Pastor in striking down the Pennsylvania statute is not the same as that followed by either the Supreme Court of the United States or this Court. The Board argues that the Pennsylvania court distinguished between state courts and the Supreme Court in their respective handling of due process arguments in economic regulation cases. Furthermore, the Board maintains, since this type of regulatory legislation would be found constitutional under the reasoning of recent Supreme Court cases, so must the Maryland statute. This is so, it says, because Maryland applies the same rule in testing the police power as does the Supreme Court.

To be sure, the Pennsylvania court did state that:

“ . . . [T]he Supreme Court of the United States has ‘returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.’ (citations omitted). ‘Deference to the legislative judgment’ is now the federal watchword, (citations omitted). ‘It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.’ Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955). See also Adams v. Tanner, 244 U.S. 590, 599-600, 37 S.Ct. 662, 665, 666, 61 L.Ed. 1336 (1917) (Brandéis, J., dissenting).

“While this test may mean that in the federal courts the ‘due process barrier to substantive legislation as to economic matters has been in effect removed,’ the same cannot be said with respect to state courts and state constitutional law. This difference between federal and state constitutional law represents a sound development, one which takes into account the fact that ‘state courts may be in a better position to review local economic legislation than the Supreme Court. State courts, since their precedents are not of national authority, may better adapt their decisions to local economic conditions and needs.’ ” 272 A. 2d at 490.

This trend in the Supreme Court decisions dealing with the Due Process Clause in “economic matters,” as distinguished from personal rights, has received much attention from the commentators. McCloskey, Economic Due Process and the Supreme Court: An Exhumation and Reburial, 1962 Sup. Ct. Rev. 34, presents a comprehensive review of the subject, as do Stern, The Problems of Yesteryear— Commerce and Due Process, 4 Vand. L. Rev. 446 (1951) and 37 Brooklyn L. Rev. 617, 622 (1971). We traced the development of this federal-state distinction in Brooks v. State Board, 233 Md. 98, 110-12, 195 A. 2d 728 (1963).

Despite the reference to the federal-state dichotomy in Pastor, we disagree with the conclusion drawn from it by the Board that the Pennsylvania test is unlike that of Maryland. The following statements in Pastor leave no doubt that both follow the same test:

“Through all these cases we have been guided by the proposition that ‘a law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained.’ . . .” 272 A. 2d 491 (emphasis added).

“Examining each reason in turn, however, we will find that none meet the test set out in [Gambone v. Commonwealth, 375 Pa. 547, 101 A. 2d 634 (1954)]: Whether the means employed — the prohibition of retail price advertising of prescription drugs — bears a ‘substantial relation to the objects sought to be obtained.’” 272 A. 2d at 491-92 (emphasis added).

“We thus find that the prohibition in question bears no substantial relation to any of the objects which . . . were sought to be obtained.” 272 A. 2d at 494.

The rule of the Maryland cases is virtually identical. As recently as Salisbury Beauty Schools v. St. Bd., supra, where we recited the applicable principles at length, we said:

“ ‘ . . . Freedom of contract is subject to legislative regulation in the interest of public health, safety, morals or welfare. But such legislation must not be unreasonable, arbitrary, or capricious, and the means selected must have a real and substantial relation to the object sought to be attained. . . .’ ” 268 Md. at 58 (emphasis added).

Thus, we applied this standard there in stating:

“Although the effect of the prohibition in Art. 43, § 537 (a), may be to undertake to limit competition between the beauty schools and registered beauty shops, the Legislature was free to adopt such an economic policy so long as it appeared reasonably necessary to protect the public welfare. . . . We cannot say, to the extent it may ‘control prices’ or affect competition, that the statute is unreasonable or that it does not bear a real and substantial relationship to the object sought to be attained.. . .” 268 Md. at 59-60 (emphasis added).

Therefore, it is readily apparent that whatever may be the current direction taken by the Supreme Court in the area of economic regulation, as distinguished from the protection of fundamental righ,ts, Maryland and Pennsylvania adhere to the more traditional test formulated by the Supreme Court and enunciated in Lawton v. Steele, 152 U. S. 133, 137, 14 S. Ct. 499, 38 L. Ed. 385 (1894). See Goldblatt v. Hempstead, 369 U. S. 590, 594-95, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962).

We pass then to the determination of whether the “means selected” here bear “a real and substantial relation to the object sought to be attained.” That they do not is effectively demonstrated, we think, by what we said earlier in analyzing the arguments advanced by the Board. Furthermore, the record reveals the following: The ban on advertising prescription drug prices imposes a burden on senior citizens because they are unable to conduct any investigation, such as by reading advertisements, to learn the available prices for drugs. Many of these same persons have a great need for maintenance-type drugs. Apart from what the record discloses, it is clear that these conditions also apply to those who have modest or low incomes.⁶

These circumstances are compounded by what now stands as an incontestable fact, namely, that there is a wide disparity in prescription drug prices.* ****⁷ It follows from these facts that it would be in the best interests of the public to be informed of prescription drug prices to enable purchasing at the lowest available prices.

Thus, the arguments advanced by the Board demonstrate no “real and substantial relation to the object sought to be attained,” by the “means selected.” Quite to the contrary, the evidence indicates that continued existence of the statute is inversely related to the public health and welfare. Consequently, we do not hesitate to label it “unreasonable, arbitrary and capricious,” and therefore an unconstitutional exercise of the police power. Although the objectives attributed to the statute are, indeed, commendable ones, there is no “substantial relation” between them and the statute. The result is, and we so hold, that subsection (iv) of § 266A (c) (4) violates the Due Process Clause of the Fourteenth Amendment and Art. 23 of the Maryland Declaration of Rights.

Lastly, the Board makes two related points. It contends that the court below paints with too broad a brush when it grants appellees “the unrestricted right to advertise drugs and drug prices, whether they be controlled dangerous substances or other prescription drugs, free from interference by the [Board],” and further, that “[n]o Court in the United States has gone as far as the lower Court in the instant case, in declaring drug price advertising statutes unconstitutional. . . .” We do not agree with the gloss placed by the Board upon the decision of the lower court. Subsection (iv) does not mention “controlled dangerous substances.” Nor do we share the Board’s view that the decision reached below, if left intact, "... will permit a pharmacist, or a pharmacy, to advertise even the most dangerous drug by description, price or otherwise, without accountability to the Board . . . .” Elsewhere we have stressed the comprehensiveness of the regulatory scheme applicable to pharmacies; thus we are not persuaded that the Board is rendered incapable of effective regulation.

A companion argument advanced by the Board is that the decision reached here will cast doubt on Code (1957, 1971 Repl. Vol.) Art. 27, § 300 (e) (ii).⁸ The short answer to this contention, as the trial judge stated, is that “the statute under constitutional attack in the instant case is not Art. 27, § 300 (e) (ii),” which is a criminal statute. We note, furthermore, that the statute here proscribes the advertising of “prescriptions, dangerous or nonproprietary drugs,” whereas § 300 (e) (ii) restricts the advertising of “any controlled dangerous drug or prescription drug.” By definition, as contained in § 300 (a), the term “prescription drugs” does “not mean any controlled dangerous substance,” which is defined elsewhere by schedule.

In any event, lest there be any lingering doubts, we are not here concerned with § 300 (e) (ii), and we carefully refrain from expressing any opinion regarding its constitutionality vel non. To underscore the limits of our holding, we repeat that we go no further than to declare subsection (iv) of Art. 43, § 266A (c) (4) unconstitutional as a violation of the Due Process Clause of the Fourteenth Amendment and Art. 23 of the Maryland Declaration of Rights.

Order affirmed; appellant to pay costs.

1 . “(c) Grounds. — The Board’s power either to reprimand a pharmacist or assistant pharmacist or to suspend or revoke his license shall be for any of the following causes:

"(4) Upon proof • satisfactory to the Board of Pharmacy that a pharmacist .or assistant pharmacist is guilty of grossly unprofessional conduct. The following acts on the part of a pharmacist or assistant pharmacist are hereby declared to constitute grossly unprofessional conduct:

“(iv) The advertising .to the public by any means, in any form or through any media, the prices for prescriptions, dangerous or nonproprietary drugs, or fees for services relating thereto or any reference to the price of said drugs or prescriptions whether specifically or as a percentile. of prevailing prices, or by the use of the terms ‘cut rate, ’ ‘discount,'-‘bargain' or terms of similar connotation." (émphasis added).

2 . Code (1957, 1971 Repl. Vol.) Art. 43, § 122 prohibits persons from practicing medicine unless licensed by the Board of Medical Examiners in accordance with the many stringent requirements imposed by law; § 269 of Art. 43 provides that only persons under the supervision of a registered pharmacist or other persons duly approved by the Board may prepare drugs; § 249 provides that no person shall maintain a pharmacy without a proper certificate, and may not leave a pharmacy at any time in charge of one who is not a registered pharmacist; that same section permits only registered pharmacists to compound prescriptions, as well as physicians and dentists who are permitted to personally compound and dispense their own prescriptions; § § 249-289 of Art. 43 contain other requirements designed to protect the general health, safety and welfare of the public with regard to the compounding and dispensing of drugs; Art. 27, § 287 (a) makes it unlawful for any person to possess any controlled dangerous substance unless validly obtained pursuant to a valid prescription or order from a practitioner; likewise, it is unlawful to obtain such substance by fraud, deceit, misrepresentation or forgery, Art. 27, § 287 (b); and subsection (v) of § 266A (c) (4) prohibits any type of advertising by pharmacists that implies professional superiority over others.

3 . American Druggist, May 29, 1972, at 17.

4 . “The Department of Justice believes that the major effect of legislation or regulations prohibiting price advertising of prescription drugs is to reduce retailer incentives to engage in price competition with resulting higher costs to the public.” (emphasis added). Research Paper and Policy Statement of the United States Department of Justice Regarding State Restrictions on the Advertising of Retail Prescription Drugs (Summer, 1971).

5 . U.S. Treasury, Internal Revenue Service, Economic Stabilization Program, “Posting Requirements for Retailers of Prescription Drugs,” Publication S-3010 (Rev. 9-72) Washington, D. C.

6 . “Most poor people do not enjoy the mobility of the more affluent consumer who has a car and can shop around for the best price. Consequently, the poor have become a captive audience for the dwindling number of merchants in their neighborhoods.” RX: Retail Drug Price Competition, A Consumer Study by Congressman Benjamin S. Rosenthal (March, 1973) at 20.

7 . “A Junior League of Baltimore survey of 69 city stores found wide variations in prices. The price of one prescription ranged from $1 to $5, another from $2.40 to $6 and a third from $3.77 to $9.50. The Maryland Public Interest Research Group found similar results in its survey of 33 stores. The Junior League survey found that the higher prices prevailed in white, wealthy neighborhoods and, distressingly, in black inner-city neighborhoods and near the Metropolitan Senior Citizens Center. Lower prices prevailed in white working class areas.” The Evening Sun, Sept. 13, 1973, at A14, col. 2.

Another survey of 147 pharmacies in 81 communities in 17 states, including Maryland, conducted in July-August, 1972, disclosed ranges such as $15 to $1.50 for 100 penicillin G 400,000 units and $20 to $2.50 for 100 tetracycline 250 mg., Prescription Drug Pricing, Consumer Federation of America, Sept. 1972, at X.

8 . “No person shall be permitted to advertise through any media other than a professional or trade publication any controlled dangerous drug or prescription drug by either its ‘trade name’ or by its generic or formulary name.”