PROCEEDING under article 78 of the Civil Practice Act (transferred to the Appellate Division of the Supreme Court in the third judicial department by an order of the Supreme Court at Trial and Special Term, entered in Chemung County) to review a determination of the State Board of Pharmacy, assessing penalties against petitioner for violating provisions of article 137 of the Education Law.
John D. Frawley for petitioner.
Jacob K. Javits, Attorney-General (Henry S. Manley of counsel), for respondent.
The sale of 'drugs' at retail is made a misdemeanor by the Education Law (§ 6804, subd. 3, par. c) unless under the 'immediate personal supervision of a pharmacist or druggist'. The same section of the statute (subd. 3, par. b), makes it unlawful for any person to dispense 'drugs' at retail unless as allowed by law--an exception generally in favor of licensed pharmacists.
The statutory meaning of the word 'drugs' sweeps a wide arc, described within the inclusive definitive terms of subdivision 14 of section 6801, to include not only 'Articles recognized' by the official United States pharmacopoeia, but all 'Articles intended' for use in connection with treatment of disease or to affect any structure or function of the body. A pertinent exception to the prohibition against the retail sale of drugs appears in subdivision 2 of section 6816. This provides (par. c) that the prohibition shall not apply 'To the sale of proprietary medicines'.
This proceeding by the petitioner, who is a storekeeper and not a pharmacist and who does not bring himself within the other permissive terms of the statute, is to review a determination made by the State Board of Pharmacy imposing penalties. Authority to penalize violations of article 137 of the Education Law regulating pharmacy is vested in the board (§ 6823, subd. 2). The first charge was that petitioner had sold to an inspector of the Board of Pharmacy a tube of zinc oxide ointment. It was manufactured by the Norwich Pharmacal Company and sold by petitioner in the tube in which it had been prepared and the tube contained the name of the manufacturer.
The sale itself is not disputed and we have no difficulty in holding that zinc oxide ointment is a 'drug'; not merely because of its listing in the pharmacopoeia, but because it readily falls within the class of 'articles' intended for the treatment of disease or to affect a structure or function of the body (§ 6801, subd. 14).
It is argued, however, that since it is sold under the name of its pharmacal manufacturer in the container in which it was prepared, it must be treated as a 'proprietary medicine' and thus be excluded by section 6816 (subd. 2, par. c) from the prohibitions of the article in relation to the retail sale of 'drugs'.
A medicine in general use, the ingredients of which are the common property of pharmacists or pharmacal manufacturers, is not a 'proprietary medicine' in the sense the statute uses that term. The name of the manufacturer on such a medicinal product also made by others or compounded by pharmacists generally does not transmute the medicine into a 'proprietary medicine' within the scope of the statute.
The manufacturer has the right, of course, to control its name on the product it makes. It is in this sense the proprietor of the product made by it and sold under its name--but this kind of a product is not thereby rendered a 'proprietary medicine' within the meaning of the statutory exception.
Many medicines that have had general public usage for long periods of time, of commonly known ingredients and put together by pharmacists as well as pharmacal manufacturers, are presently sold in packages under the names of the people who make them. They are not regarded as 'proprietary medicines' in the meaning ...