Inc. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council

Certain types of commercial communication involving the conveyance of information about products or services are protected by the First Amendment to the U.S. Constitution.

The practice of pharmacy is regulated in Virginia by the State Board of Pharmacy (VSBP), which among its duties serves as a licensing body and promulgator of professional codes of conduct for pharmacists. Only licensed pharmacists may dispense prescription drugs in the state. In 1968, the board added to its code of conduct a clause stipulating that it would constitute unprofessional conduct for pharmacists to advertise information regarding the prices to be charged for prescription drugs.

The new clause was immediately challenged in Virginia state court by a retail drug manufacturer and one of its corporate pharmacists on the basis of a possible violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, but the court upheld the statute and no appeal of the case was ever made.

In 1974 the Virginia Citizens Consumer Council, Inc. (VCCC), a nonprofit organization with many members who were regular purchasers of prescription drugs, joined another nonprofit organization and a private citizen resident in Virginia to bring suit in the U.S. District Court for the Eastern District of Virginia against the Virginia State Board of Pharmacy's prohibition against the advertising of prescription drug prices by pharmacists. This time the argument against the VSBP centered on its possible violation of the First Amendment right to free speech, and the district court held in favor of VCCC and enjoined the state from enforcing that portion of its pharmacy licensing statutes. The VCBP appealed the case to the U.S. Supreme Court, which heard arguments on 11 November 1975.

Attorneys for the VCCC argued that the organization's members were prevented from obtaining useful information that was not subject to interpretation of misrepresentation by the VSBP prohibition against advertisement of prescription drug prices by pharmacists. The state countered that so-called "commercial speech" is not protected by the First Amendment, since advertising and other corporate communications to the public must adhere to standards of truthfulness not applicable to other forms of speech. The State also maintained that excessive price competition could lead to the erosion of professionalism among pharmacists, who might be tempted to cut corners to reduce the amount of time spent in compounding and dispensing prescription medications.

On 24 May 1976, the U.S. Supreme Court decided in favor of the VCCC and upheld the injunction barring the state of Virginia from enforcing its prohibition of advertising prescription drug prices by pharmacists. Writing for the Court, Justice Blackmun stated that certain types of commercial communication were protected by the First Amendment, since "society may have a strong interest in the free flow of commercial communication," and "advertising, however tasteless and excessive it may seem, is nonetheless dissemination of information." Against this public need for consumer information, the state posed its need to ensure high standards of professional practice and conduct among pharmacists. While noting that the state's justifications could not be "entirely discounted," the Court replied that "the strength of these proffered justifications is greatly undermined by the fact that high professional standards, to a substantial extent, are guaranteed by the close regulation to which pharmacists in Virginia are subject." The Court also further stated that, while commercial speech is somewhat protected by the First Amendment, it must always remain subject to greater state scrutiny and regulation than other forms of speech. In the final analysis, the Court saw the issue as one of allowing the state to completely "suppress the dissemination of concededly truthful information about entirely lawful activity," which it could not allow on constitutional grounds. The lone dissenter, Justice Rehnquist, maintained that the First Amendment had been extended by the decision, since the state did not bar pharmacists from giving out price information to those who inquired, only from advertising. He also objected to the decision on the ground that there is a substantial social interest in decreasing dependency on drugs to cure "every ill, real or imaginary."

Justice Rhenquist's dissent underscores the importance of this decision, which did apply First Amendment protection to commercial speech more broadly than previously.