425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976)
Virginia law made it unprofessional conduct for a licensed pharmacist to publish, advertise, or promote any price for prescription drugs under Va. Code Ann. § 54-524.35(3).1
The Virginia State Board of Pharmacy regulated the profession to protect public health, safety, and welfare.2 It licensed pharmacists only after they showed good moral character, graduated from an approved school, completed up to twelve months of experience, and passed a Board examination.3 Licensed pharmacists remained subject to penalties or license revocation for negligence, fraud, or unprofessional conduct.4
Prescription drug prices varied sharply even within the same locality.5 In Richmond the cost of forty Achromycin tablets ranged from $2.59 to $6.00.6 In the Newport News-Hampton area the price of tetracycline ranged from $1.20 to $9.00.7 About ninety-five percent of prescriptions were filled with dosage forms prepared by manufacturers.8 Some pharmacies refused to quote prices over the telephone.9
An individual Virginia resident who suffered from diseases requiring daily prescription drugs, together with two nonprofit organizations whose members included many users of such drugs, brought suit against the Board and its members.10 The plaintiffs claimed the ban prevented them from learning where their limited resources could be spent most effectively.11 A prior challenge to the same statute brought by a drug retailer and one of its pharmacists had been rejected on due-process and equal-protection grounds.12
The three-judge District Court for the Eastern District of Virginia declared the quoted portion of the statute void and enjoined its enforcement.13 The Supreme Court noted probable jurisdiction of the Board's appeal.14
Whether consumers of prescription drugs have a First Amendment right to receive price information that pharmacists wish to communicate through advertising?15
Yes. The consumers asserted their own interest in receiving information about prescription drug prices that pharmacists would communicate if the ban were lifted.18 Freedom of speech presupposes a willing speaker.19 Where a speaker exists, the protection afforded is to the communication, to its source and to its recipients both.20 The recipients' right is reciprocal to the pharmacists' right to speak and may be asserted by the consumers who would benefit from the price information.21
Consumers of prescription drugs possess a First Amendment right to receive the price information that pharmacists wish to communicate through advertising.22
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Justice Rehnquist dissented on standing grounds.23 He argued that the consumer plaintiffs could obtain price information by telephone and therefore were not asserting a true right to receive information but rather the right of pharmacists to publish it.24 The statute forbids only publishing, advertising, or promoting.25
The plaintiffs had not shown the information would be unavailable without pharmacist advertising.26 Appellees could collect and publish comparative price information themselves.27 Thus they were really asserting the rights of third parties not before the court.28
Whether the First Amendment protects speech that does no more than propose a commercial transaction such as the advertising of prescription drug prices?29
Yes. The proposed advertisement stating that a pharmacist will sell a specific prescription drug at a stated price constitutes protected commercial speech.32 The Court rejected the notion that commercial speech lacks all First Amendment protection.33 It distinguished earlier cases that had suggested otherwise and moved away from the broad exemption announced in Valentine v. Chrestensen.34
The pharmacist's message contains factual information of value to consumers and to society in allocating resources intelligently within a free-enterprise system.35 Because the speech concerns entirely lawful activity and is not shown to be false or misleading, it falls within the First Amendment.
The First Amendment protects speech that does no more than propose a commercial transaction such as the advertising of prescription drug prices.36
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Justice Stewart concurred to emphasize that the decision does not preclude regulation of false or deceptive commercial advertising.37 Commercial advertisers generally know the truth about their products and prices.38 This knowledge makes governmental regulation of misleading claims less likely to chill protected expression than in the context of ideological speech or libel.39
The principles from libel cases suggest government may take broader action to protect the public from injury produced by false or deceptive price or product advertising.40 The advertiser's access to the truth substantially eliminates any danger that regulation will chill accurate commercial expression.41
Whether a state may prohibit licensed pharmacists from advertising prescription drug prices to preserve professional standards among pharmacists?42
A state may not suppress the dissemination of truthful information about lawful commercial activity solely to keep the public in ignorance, even when the asserted justification is the maintenance of professional standards among pharmacists.43
No. Virginia's ban on prescription-drug price advertising rests on the assumption that consumers will make unwise choices if given truthful price information, an approach the First Amendment forbids.4445 The Board advanced justifications centered on preserving pharmacists' professional expertise, preventing aggressive price competition that might reduce services, and protecting the pharmacist's image as a skilled professional.46 These justifications depend on keeping consumers ignorant of price differences so that more painstaking pharmacists are insulated from competition.47 Close regulation already ensures professional standards through licensing, inspection, and discipline.48
The advertising ban adds only the protection of public ignorance.49 The state remains free to impose direct professional requirements but may not achieve its goals by suppressing truthful speech.50
A state may not prohibit licensed pharmacists from advertising prescription drug prices to preserve professional standards among pharmacists.51
Related opinions on this issue
Chief Justice Burger concurred to stress that the decision addresses only prepackaged prescription drugs.52 Quite different factors would govern regulation of advertising by the traditional learned professions of medicine or law.53 Attorneys and physicians are engaged primarily in providing services in which professional judgment is a large component.54
This is a matter very different from the retail sale of labeled drugs already prepared by others.55 The advertisement of professional services carries quite different risks from the advertisement of standard products.56 The Court wisely leaves these issues to another day.57
Justice Rehnquist dissented on the merits.58 He contended that the Court improperly substituted its judgment for that of the Virginia legislature on a matter of economic and professional regulation.59 The Court has overruled a legislative determination that such advertising should not be allowed.60
The decision opens the door to active promotion of prescription drugs, liquor, cigarettes, and other products the use of which it has previously been thought desirable to discourage.61 The First Amendment does not require an open-door policy toward commercial advertising of prescription drugs.62 The societal interest against the promotion of drug use for every ill, real or imaginary, seems extremely strong.63