Osco Drug, Inc. v. Pharmacy Examining Board

214 N.W.2d 47, 61 Wis. 2d 689, 1974 Wisc. LEXIS 1608

• Court: Wisconsin Supreme Court
• Decided: January 21, 1974
• Docket: 277
• Status: Published

Opinions

Wilkie, J.

A single issue is dispositive of this appeal, to wit: Was the trial court correct in granting summary judgment on the ground that the two rules in question were not authorized by statute ?

The trial court granted summary judgment for the plaintiffs on the ground that the Board lacked statutory authority to promulgate the rules in question. This is the only question on this appeal. Although the trial court first rejected the plaintiffs’ contention that the signs in question did not constitute advertising within the meaning of the rules, that conclusion is not before this court on appeal.

We agree with the trial court that the legislature, in adopting secs. 15.08 (5)² and 450.02 (7),³ Stats., did not grant to the Board the specific power to regulate advertising, nor did the legislature grant the Board power to adopt the disputed rules, Wis. Adm. Code, secs, phar 1.17 and 1.18, to regulate professional conduct and unethical practices of pharmacists.

As noted by the trial court the legislature chose to specifically control certain advertising practices by other professions governed by the general statute (sec. 15.08) granting powers to examining boards. The trial court concluded correctly

“. . . it is clear that where the legislature has intended to control advertising in connection with a particular calling, it has expressed its intent in specific statutory language. In the face of these various examples of explicit statutory regulation of advertising, we cannot conclude that the general language of sec. 15.08 (5) ‘necessarily implies’ a grant of authority to the pharmacy board to regulate advertising.” ⁴

The trial court also found that ch. 450, Stats., which regulates pharmacy, does mention advertising. Sec. 450.11 (2) forbids the advertising or offering for sale of indecent articles. The trial court concluded that the legislature had considered advertising by drugstores and pharmacies and had intended to confine its regulation of pharmaceutical advertising to the prohibition of the advertising of indecent articles.

We conclude that this is a proper interpretation of the powers delegated by secs. 15.08 (5) and 450.02 (7), Stats., to the Pharmacy Board.

The trial court relied on the case of Oregon Newspaper Publishers v. Peterson⁵ in construing the Wisconsin statutes as not authorizing the Board to regulate advertising. The Oregon case held that a statute which gave power to a state pharmacy board to “ [m] ake regulations, necessary for the protection of the public, pertaining to the practice of pharmacy and the lawful performance of its duties [and] [r]egulate the practice of pharmacy” ⁶ did not include the power to regulate advertising. So here. The Oregon court decided that when rule-making power is challenged, the agency must show that its regulation falls within a clearly defined statutory grant. Then it noted that there was no express indication in the Oregon statute that advertising was contemplated as a subject for regulation and that in the case of dentistry and optometry the state legislature had specifically controlled advertising by statute. The Oregon court concluded that when the legislature intended advertising to be regulated it did so in specific statutory language.

The net result of our conclusion here is that the legislature did not intend to regulate the advertising of pharmaceutical prices. We, therefore, do not reach the constitutional questions raised by the plaintiffs.

Since the statutes do not presently authorize regulation of price advertising it is unnecessary to consider the reasonableness of rules Wis. Adm. Code, secs, phar 1.17 and 1.18 i neither is it necessary to consider the allegations of the Board (supplied in its affidavits) which seek to validate the rules as necessary to control professional conduct and unethical practices by pharmacists.

Summary judgment was properly granted to plaintiffs.

By the Court. — Judgment affirmed.

2 “15.08 Examining boards. ... (5) General Powers. Each examining board may compel the attendance of witnesses, administer oaths, take testimony and receive proof concerning all matters within its jurisdiction. It shall formulate rules for its own guidance and for the guidance of the trade or profession to which it pertains, and define and enforce professional conduct and unethical practices not inconsistent with the law relating to the particular trade or profession.”

3 “450.02 Registration. . . . (7) The examining board, upon notice and hearing, may suspend or revoke the registration of one guilty of felony or gross immorality, or who is addicted to alcoholic liquors or controlled substances to an extent affecting his fitness as a pharmacist, or who is otherwise unfit to practice as a pharmacist, or whose registration was secured by fraud or mistake or the giving of misinformation in any of the applications submitted to the examining board or who has been guilty of a violation of this chapter or ch. 161 or of violations of any of the rules of the examining board, or who has been guilty of acts of unprofessional conduct as herein defined. No such revocation shall become effective until 20 days after notice of the decision of the examining board has been served upon the person accused. Decisions of the examining board under this section shall be subject to review as provided in ch. 227 and in ease the provisions thereof are invoked by the accused within such 20-day period, such order of revocation shall become effective only at such time as may be ordered by the court. Unprofessional conduct means:

“(a) Sale of adulterated drugs.

“(b) Compounding, dispensing or selling, or causing or permitting the compounding, dispensing or sale of any drug which contains more or less than the proportionate quantity of ingredient or ingredients specified by the person ordering or prescribing such drug, or which contains an ingredient or ingredients other than those specified by the person ordering or prescribing such drug, or which is of a brand or which contains an ingredient or ingredients of a brand other than that specified by the person ordering or prescribing such drug, unless, in the case of a drug dispensed pursuant to a prescription the consent of the prescriber is first obtained and recorded on the prescription. Nothing herein contained shall be construed to prohibit the addition of such inert ingredients such as emulsifiers, wetting agents, solvents, or like items as may be required in the art of compounding, preparing, mixing or otherwise producing drugs unless otherwise directed by the prescriber.

“(c) Violation of such standards as may from time to time be established or approved by the examining board.”

4 For example, see: secs. 446.04 (chiropractors), 447.07 (dentists), 448.14 (podiatrists), 449.08 and 449.10 (optometrists), Stats.

5 (1966), 244 Ore. 116, 415 Pac. 2d 21.

6 Id. at page 119, note 2.