Opinion No. Oag 49-76, (1976)

65 Op. Att'y Gen. 137

• Court: Wisconsin Attorney General Reports
• Decided: August 5, 1976
• Status: Published

Opinion

MANUEL CARBALLO, Secretary, Department of Health and SocialServices

You request my opinion whether the provisions of ch. 168, Laws of 1975, allow unlimited substitution of prescriptions by pharmacists. For the reasons set forth below, it is my opinion that they do not.

The provision of the statute which gives rise to the question is sec. 450.075 (2), Stats. The section sets forth the conditions under which pharmacists are allowed to substitute drugs. The first part of this section is as follows:

"Subject to sub. (3), a pharmacist shall fill every prescription with a drug product prescribed or its drug product equivalent. . . ."

Both "drug product" and "drug product equivalent" have very specific meanings in the statute. Drug product is defined by sec. 450.075 (1) (b) with reference to sec. 140.90 (1) (b). It is "a specific drug in a specific dosage form from a known source of manufacture, whether by brand name or generic name." In other words, it is the physician's prescription.

"Drug product equivalent" is defined by sec. 450.075 (1) (c) as "a drug listed as a drug product equivalent in the formulary prepared under s. 140.90." In other words, it is different than the drug product in terms of brand name or generic name, but is the same as the drug product in terms of its chemical makeup.

The pharmacist who fills a prescription does so pursuant to sec. 450.075 (2). When filling that prescription he has two alternatives. One is to fill the prescription with the drug product — clearly the physician's prescription, and the physician's prescription only. The pharmacist's second alternative is to substitute the prescription with a drug product equivalent. But such equivalent, according to its definition in sec. 450.075 (c), must be found listed in the formulary prepared and published by the Department of Health and Social Services.

BCL:SMS