Virginia St. Bd. of Pharmacy v. Virginia Citizens Consumer Council,Inc. Case Brief

Summary of Virginia St. Bd. of Pharmacy v. Virginia Citizens Consumer Council,Inc., 425 U.S. 748 (1976)

Facts: VA Code provision makes pharmacists’ conduct re: publication, advertising in any manner price for any drugs dispensed by prescription criminal. Pls are individual resident of VA who suffers from diseases that require daily drugs and two nonprofit Orgs.

Issue(s): Whether States can completely suppress truthful information related to the free flow of commercial drug prices when activity is lawful out of fear that information’s effect?

Holding: No. The consumer has a reciprocal right to receive information and pharmacists have right to advertise, subject to limitation on T, P, M.

Procedure: D Ct panel held law Void. U.S.S.Ct Affirmed.

Rule(s): 1st Amend

Rationale: Freedom of Speech presumes a willing speaker. It is at that point that protection is provided to the communication, not only to the source, but also to the communication’s recipient. If there is a right to advertise, then there is a corresponding right to receive that advertisement.

Although pure commercial speech has been unprotected, if it contains factual material of clear “public interest" it is not considered pure commercial speech. The analysis must determine if the speech involved merely proposes a commercial transaction or involves the explanation of ideas.

Advertiser’s interests here are purely economic. Yet, the consumer’s interests are as keen if not more so than interest in political debate. Suppression of drug information adversely impacts the poor, the sick, and the elderly. Scarcity of the availability of funding for drugs by these groups increases the need for dissemination of pricing information. It is a matter of public interest that the free flow of commercial information continue so consumers can make intelligent and informed decisions, without threatening customer’s health. Thus, that free flow of information may serve the 1st Amend goal of enlightening the decisionmaking ability of the public in a democracy.

Govt justifications for regulation can be accomplished by enforcement means; license restrictions, etc. Similarly, the choice between consumer’s best interests assuming information is not harmful and the best means to provide information is not a function of Ct or Legislature. Ct will decide if choice btwn danger of suppressing info and danger of its misuse if freely available that the 1st Amend requires.

Pl’s A: 1st Amend entitled the use of prescription drugs to receive information pharmacist want to communicate through advertising concerning the price of drugs

Df’s A: Advertisement of prescription drug prices is outside the protection of 1st Amendment b/c it is commercial speech.



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