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Proprietary Association v. Board of Pharmacy

Decided: July 20, 1953.

THE PROPRIETARY ASSOCIATION, AN UNINCORPORATED ASSOCIATION, MORRIS I. ZIEPER, AN INDIVIDUAL, AND JOHN HAROOTUNIAN, AN INDIVIDUAL, PLAINTIFFS,
v.
BOARD OF PHARMACY OF THE STATE OF NEW JERSEY, GUY R. LUONGO, INDIVIDUALLY AND AS PRESIDENT OF THE BOARD OF PHARMACY OF THE STATE OF NEW JERSEY, STEPHEN M. DUSCHOCK, INDIVIDUALLY AND AS A MEMBER OF THE BOARD OF PHARMACY OF THE STATE OF NEW JERSEY, EPHRAIM G. SLESS, INDIVIDUALLY AND AS A MEMBER OF THE BOARD OF PHARMACY OF THE STATE OF NEW JERSEY, BERNARD GERSON, INDIVIDUALLY AND AS A MEMBER OF THE BOARD OF PHARMACY OF THE STATE OF NEW JERSEY, WILBUR E. POWERS, INDIVIDUALLY AND AS SECRETARY OF THE BOARD OF PHARMACY OF THE STATE OF NEW JERSEY, AND THEODORE D. PARSONS, THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANTS



Colie, J.s.c.

Colie

This is a declaratory judgment action brought by The Proprietary Association, an unincorporated association, Morris I. Zieper and John Harootunian, who operate respectively a tobacco and a grocery store. Both individuals sell or sold packaged medicines. The defendants are the Board of Pharmacy of the State of New Jersey, its members, and Theodore D. Parsons, Attorney-General of New Jersey.

The action was instituted after the Board of Pharmacy, purportedly acting under the authority of R.S. 45:14-1 et seq. , had in some instances brought suit against certain sellers of packaged medicines where a registered pharmacist was not present or supervising, and had warned others, in a like category, to discontinue such sales. After numerous preliminary steps, none of which are of importance to the main issues, the case was tried for 11 days before the court without a jury.

The complaint sought a judicial determination of the meaning of the terms "patent medicines," "proprietary medicines," and "domestic remedies" as are used in R.S. 45:14-29. At the end of the trial, plaintiffs abandoned the prayer for a definition of "domestic remedies." The counterclaim sought a declaration as to the meaning of the phrase "making and vending," the word "non-poisonous" and the words "patent or proprietary medicines" as used in the same section.

The pertinent sections of the Pharmacy Act are:

R.S. 45:14-6.

"No person, not a registered pharmacist within the meaning of this chapter, shall conduct any store or pharmacy, or employ any unregistered pharmacist or unregistered assistant for retailing, dispensing or compounding drugs, medicines or poisons, and no person not a registered pharmacist or a registered assistant, shall prepare and dispense physicians' prescriptions, or retail or dispense medicines or poisons, except under the immediate supervision of a registered pharmacist. This section shall not be so construed as to prohibit the employment of apprentices in pharmacies or drug stores, but they or other unregistered employees shall not be allowed to prepare, compound and dispense prescriptions, or to sell or furnish medicines, prescriptions or poisons, except in the presence of and under the personal supervision of a registered pharmacist of this state, who must either be the proprietor or owner of said store or pharmacy, or in the actual employ of such proprietor or owner. For the violation of this section the owner or proprietor of said store or pharmacy shall be equally liable as principal."

and R.S. 45:14-29:

"Except as otherwise provided as to barbital or any other hypnotic or somnifacient drugs, nothing in this chapter shall be construed to apply to or in any manner interfere with the strictly professional pursuits of any physician, the making and vending of nonpoisonous patent or proprietary medicines, the sale of simple nonpoisonous domestic remedies by retail dealers in rural districts, nor the ownership of any pharmacy or store, in whole or in part, by a person not a registered pharmacist, if such pharmacy or store is at all times in charge of a registered pharmacist. Any person holding any certificate of registration granted under any former act, with the renewal certificate thereof, shall be considered a registered pharmacist within the meaning of this chapter." [27 NJSuper Page 208] To detail the testimony would clutter the record needlessly. Suffice it to say that the witnesses, many of whom were outstanding in their respective fields of medicine and pharmacology, were in disagreement on some points and surprisingly in accord on others. The consensus of the testimony was to the effect that the terms "patent" and "proprietary," as used in connection with medicinal purposes were, in common parlance and the trade, often used interchangeably. John J. Debus, a registered pharmacist and secretary of the New Jersey Pharmaceutical Association, testified that as of 1951 the term "patent and proprietary medicines" was a bastard term of a general description of trade-marked medicines, one which had gotten into general usage but that as of earlier years, a patent medicine was one on which a patent had issued, and a proprietary medicine was one in which the owner or producer had a proprietary interest by virtue of its ingredients or composition being secret. Mr. Jacob Eisen, a registered pharmacist since 1927, a defense witness, testified that packaged medicines were generally known as patent or proprietary medicines. David L. Cowen, professor at Rutgers University who had made an intensive study of the history of pharmacy covering the period ending in 1901, testified that originally the term "patent medicine" connoted a medicine upon which letters patent had issued, that by the turn of the century the terms patent and proprietary became exceedingly confused in the literature, were used interchangeably and the term "patent" began to be used as a comprehensive term including any medicine at all in which there was any degree of secrecy or private ownership and that the term "proprietary medicine" came to have essentially the same significance. This witness further stated that as of 1901 the sine qua non of proprietary medicines was not the branding of it but the secrecy involved. For the plaintiffs, Dr. Frederick J. Cullen testified that the terms "patent," "proprietary" and "domestic" remedies were all in the same category; that the terms mean a completely packaged medicine sold under a trade-marked name, protected under that name, and indicating use and directions

for use on the label; that in the broad definition patent and proprietary are generally tied together. Dr. Maurice H. Seevers, professor of Pharmacology at the University of Michigan, testified that the term proprietary implied the exclusive right for protection from free competition of any compound of any nature by some process, whether the process be a trade-mark, or by secrecy, or by copyright, or by any means; that there was no clear-cut distinction between the terms patent and proprietary but that there was such between the terms patent and patented, the latter connoting the protection by a patent registered in the Patent Office.

Numerous witnesses testified to instances where pharmacists had, in isolated instances, warned customers of the potential dangers inherent in the use of some packaged medicines and of other incidents when pharmacists had checked with the attending physicians to verify that it would be wise and proper to sell certain packaged drugs to a given customer. There also was testimony of instances where fatal or near-fatal results had followed upon self-medication with packaged medicines. One instance was of a fatal case where a man had ingested between 75 and 100 grains of aspirin within a three-hour period; another was a fatal result due to boric acid poisoning to an infant of tender years and a similar case of a near-fatal result; yet another of acute ferrous sulphate poisoning involving two infants of 15 and 18 months of age. One infant had taken 15 five-grain tablets, the other 15 or 20, each within a brief period. In these cases the infants had ingested the tablets, unbeknownst to the mother, and in the home. These cases are demonstrative of the fact that poisoning may result from excessive dosage regardless of whether or not the sale be by or under the supervision of a pharmacist, or by an untrained sales clerk. It is noteworthy that the ferrous sulphate cases resulted from ingestion of tablets that were subscribed by a physician. All the evidence points unerringly to the fact that, once the medicine has come into the hands of the consumer, no supervision of sales will guard against the misuse thereof. There was uncontroverted evidence of lipid pneumonia following

the use of certain nose drops in a petrolatum excipient; of brain tumor symptoms masked by the use of headache alleviatives; of the harmful effects of certain medicines if used by a diabetic. The court took judicial notice of the fact that some storekeepers in New Jersey were incapable of reading the instructions on packaged medicines. This line of evidence was adduced for the purpose of refuting the plaintiffs' contention that the pharmacist served no useful purpose so far as the selling of packaged medicines is concerned.

The pharmacy act in New Jersey was enacted in 1877. L. 1877, c. 133. The portion pertinent to the problem ...


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