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Rite Aid of New Jersey Inc. v. Board of Pharmacy

Decided: May 8, 1973.


Collester, Leonard and Halpern. The opinion of the court was rendered by Collester, P.J.A.D.


This is an appeal by Rite Aid of New Jersey, Inc., and nine other retail pharmacists, from a regulation promulgated by the New Jersey Board of Pharmacy (Board) requiring pharmacists to maintain a patient profile record system.

The regulation requires a pharmacist to record information concerning each person for whom prescriptions are dispensed, including, among other things, the name, address and age group of such "patient," the name of the prescribing physician, and the name, strength and quantity of the drug dispensed. It also provides that the pharmacist shall attempt to ascertain and shall record any allergies or idiosyncrasies of the patient and any chronic conditions which may relate to drug utilization, as communicated to the pharmacist by the patient; that upon receipt of a prescription the pharmacist must examine the patient's profile record before dispensing the medication to determine the possibility of a harmful drug interaction or reaction; that upon recognizing a potential harmful reaction or interaction the pharmacist shall take appropriate action to avoid or minimize the problem, which shall, if necessary, include consultation with the physician.

Prior to adoption of the regulation a public hearing was conducted by the Board at which arguments were presented supporting or opposing its adoption. On February 24, 1972 the regulation was adopted by the Board to become effective July 31, 1972. The objecting pharmacists appealed and the effective date of the regulation was stayed pending final disposition of the appeal.

Appellants first contend that the promulgation of the regulation exceeds the authority delegated by the Legislature to the Board. They allege that the Legislature by statute has prescribed exactly what records are to be kept, the manner

of record keeping in connection with the dispensing of prescription drugs, and the limited power of regulation granted to the Board regarding the same.

N.J.S.A. 45:14-15, in substance, provides that a pharmacist shall keep a prescription on file for five years and shall affix to the prescription container a label bearing the name of the pharmacy, the date the prescription was compounded, an identifying number, the name of the physician (or other licensed practitioner) prescribing it, and directions for its use as provided for by the physician. The pharmacist who fills the prescription must place his name or initials on the original prescription or in a book kept for the purpose of recording prescriptions. The statute also empowers the Board of Pharmacy or its agents to inspect the prescription files and other prescription records of the pharmacy. N.J.S.A. 45:14-17 provides that the Board shall have the power to make rules and regulations for the enforcement of section 15.

Appellants argue that where the Legislature has spoken with such particularity on the subject of record keeping there is no authority for the Board to adopt a regulation which requires record keeping beyond that specified in the statute and that the Board is limited to making appropriate rules and regulations for enforcement of the statute.

We are satisfied that appellants read the statute regulating the practice of pharmacy too narrowly. It is settled beyond question that the grant of an express power by the Legislature is always attended by such incidental authority as is fairly and reasonably necessary or appropriate to make it effective, and authority granted to an administrative agency should be construed so as to permit the fullest accomplishment of the legislative intent. The purpose of the statute is not to be frustrated by an unduly narrow interpretation. Cammarata v. Essex County Park Comm'n , 26 N.J. 404, 411 (1958). In Cammarata the court stated that the Legislature may enact statutes setting forth in broad design its intended aims, leaving the detailed implementation

of the policy thus expressed to an administrative agency. The court said:

Indeed, the function of promulgating administrative rules and regulations lies at the very heart of the administrative process. Through the entrustment of such powers, our lawmakers achieve expert and flexible control in areas where the diversity of circumstances and situations to be encountered forbids the enactment of legislation ...

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