| Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.
(No. 74-895)
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| Syllabus
| Opinion
[ Blackmun ] | Concurrence
[ Burger ] | Concurrence
[ Stewart ] | Dissent
[ Rehnquist ] |
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Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
MR. CHIEF JUSTICE BURGER, concurring.
The Court notes that roughly 95% of all prescriptions are filled with dosage units already prepared by the manufacturer and sold to the pharmacy in that form. These are the drugs that have a market large enough to make their preparation profitable to the manufacturer; for the same reason, they are the drugs that it is profitable for the pharmacist to advertise. In dispensing [p774] these prepackaged items, the pharmacist performs largely a packaging, rather than a compounding function of former times. Our decision today, therefore, deals largely with the State's power to prohibit pharmacists from advertising the retail price of prepackaged drugs. As the Court notes, ante at 773 n. 25, quite different factors would govern were we faced with a law regulating or even prohibiting advertising by the traditional learned professions of medicine or law.
The interest of the States in regulating lawyers is especially great, since lawyers are essential to the primary governmental function of administering justice, and have historically been "officers of the courts."
Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975). See also Cohen v. Hurley, 366 U.S. 117, 123-124 (1961). We have also recognized the State's substantial interest in regulating physicians. See, e.g., United States v. Oregon Medical Society, 343 U.S. 326, 336 (1952); Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 612 (1935). Attorneys and physicians are engaged primarily in providing services in which professional judgment is a large component, a matter very different from the retail sale of labeled drugs already prepared by others.
MR. JUSTICE STEWART aptly observes that the "differences between commercial price and product advertising . . and ideological communication" allow the State a scope in regulating the former that would be unacceptable under the First Amendment with respect to the latter. I think it important to note also that the advertisement of professional services carries with it quite different risks from the advertisement of standard products. The Court took note of this in Semler, supra at 612, in upholding a state statute prohibiting entirely certain types of advertisement by dentists:
The legislature was not dealing with traders in [p775] commodities, but with the vital interest of public health, and with a profession treating bodily ills and demanding different standards of conduct from those which are traditional in the competition of the market place. The community is concerned with the maintenance of professional standards which will insure not only competency in individual practitioners, but protection against those who would prey upon a public peculiarly susceptible to imposition through alluring promises of physical relief. And the community is concerned in providing safeguards not only against deception, but against practices which would tend to demoralize the profession by forcing its members into an unseemly rivalry which would enlarge the opportunities of the least scrupulous.
I doubt that we know enough about evaluating the quality of medical and legal services to know which claims of superiority are "misleading" and which are justifiable. Nor am I sure that even advertising the price of certain professional services is not inherently misleading, since what the professional must do will vary greatly in individual cases. It is important to note that the Court wisely leaves these issues to another day.