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Virginia Board of Pharmacy vs Virginia Citizens Consumer Council


Facts: “Acting on behalf of prescription drug consumers, the Virginia Citizens Consumer Council challenged a Virginia statute that declared it unprofessional conduct for licensed pharmacists to advertise their prescription drug prices. On appeal from an adverse ruling by a three-judge District Court panel, the Supreme Court granted the Virginia State Board of Pharmacy review.”

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The issue was whether the government could repress honest information that was in line with free flow of commercial drug charges in cases where the issue is legal due to the fear of how the information may affect the society (Johnson 2001)


A pharmacist has the right to advertise and in the same breathe; a consumer has a mutual right to obtain the said information. This implies that, commercial speech should be regulated very minimally where the free flow of information is of concern. The willing spokesperson and addressees are likewise confined by the First Amendment. Customers and the community as a whole have a mutual right and obligation to get information while pharmacists also have a right to publicize and market their products. In cases or situations involving free flow of information, commercial communication ought to be checked and regulated but to a small degree. In addition the first Amendment offers protection to both the giver and receiver of any public information

. “The First Amendment…does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely.” (United States Supreme Court 2006).

  • Procedure: D Ct panel held law Void. U.S.S. Ct Affirmed.
  • Rule(s): 1st Amendment.

Rationale: The matter of Freedom of Speech presupposes the presence of a willing speaker. Therefore, at this juncture, communication receives protection. This protection however is not limited to the source from which it is emanating from; the recipient of this information is also protected. “This implies that, if there is a right to advertise then there is a reciprocal right to receive the advert(United States Supreme Court 2006).

In as much as commercial speech which is pure has not been protected, it is not considered pure commercial speech if it contains factual substance of apparent “public interest”. The investigation must settle on whether or not the speech involved only suggests a profitable transaction or engages the explanation of ideas.

The interests of the advertiser in this scenario are explicitly economic. Whereas the interests of the consumer are devoted (if not more so than interests) in debates which are political. It has been observed that the holding back of information concerning prescription drugs severely affects the elderly, those who are sick and the poor. Insufficiency of the ease of use, of funding for drugs by these groups makes it more pressing for broadcasting of information concerning pricing. In order to facilitate consumers to make well informed and intelligent decisions, it is imperative (and a matter of public interest) that the free flow of commercial information continue. And all this should be achieved without threatening the health of customers. Therefore, that free flow of information may serve the goal of the first amendment of making clear the ability of the public, in a democracy, to make decisions (Freidman, 2002)

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The justifications of the government for directive can be achieved through means of enforcement, restrictions etc. Likewise, the alternative between customer’s best interests (with the assumption that information is not harmful) and the best means to supply information is not a task of Legislature or court. The court will come to a decision whether choice between peril of holding back information and peril of its wrong use if freely accessible that the 1st Amend requires. “Plaintiff’s A: 1st Amendment entitled the use of prescription drugs to receive information pharmacist want to communicate through advertising concerning the price of drugs. Defendant’s A: Advertisement of prescription drug prices is outside the protection of 1st Amendment because it is commercial speech.” (United States Supreme Court 2006)


Advertising or any other confirmatory distribution of information concerning price of prescription drug is effectively prohibited in the State. It has been noted that a number of pharmacies will even decline to give costs of prescription medicine, over the handset. It is quite evident that in decisions that have been made in the past, the Court has given some sign that commercial speech is not protected.

(United States Supreme Court 2006) “In Valentine v. Chrestensen (1942), the Court upheld a New York statute that prohibited the distribution of any “handbill, circular…or other advertising matter whatsoever in or upon any street.” It was noted that the Court also came to the conclusion that, “ although the First Amendment would forbid the banning of all communication by handbill in the public thoroughfares, it imposed “no such restraint on government as respects purely commercial advertising.” (United States Supreme Court 2006).

We rejected the contention that the publication was unprotected because it was commercial. Chrestensen’s continued validity was questioned, and its holding was described as “distinctly a limited one” that merely upheld “a reasonable regulation of the manner in which commercial advertising could be distributed.” We concluded that “the Virginia courts erred in their assumptions that advertising, as such, was entitled to no First Amendment protection,” and we observed that the “relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas.” (United States Supreme Court 2006)

As we conclude, we note that, the promotion outlaw does not exactly affect certified principles one way or the other-directly or indirectly-. Pharmaceuticals are affected only through the responses it is presupposed people will have to the free flow of information concerning prescription drug prices. When you think about is, there is no assertion that the marketing ban stops the pharmacist who is so predisposed. The only notable consequence the advertising ban has on a pharmacist is to shield him/her from price competition and to open the way for him/her to make a significant and conceivably even disproportionate profit in addition to providing a service which is inferior. The more meticulous pharmacist is also protected but, when you look at it critically, it is a protection that is sadly pivoted on (for the most part) public ignorance.


Freidman, L. (2002) Law in America: a short history. New York, NY: Modern Library.

Johnson, J. (2001) Historic US court cases. New York, NY: Routledge.

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United States Supreme Court (2006). United States Supreme Court reports. Washington, DC: Lawyers Co-operative Pub. Co.

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