Lewis, 040219 WVAGO, AGO 040219

• Case Date: April 02, 2019
• Court: West Virginia

Dennis Lewis AGO 040219 No. 040219 West Virginia Attorney General Opinion State of West Virginia Office of the Attorney General April 2, 2019          Dennis Lewis          President of the West Virginia Board of Pharmacy          2310 Kanawha Blvd. East          Charleston, WV 25311          Dear President Lewis:          You have asked for an Opinion of the Attorney General about the jurisdiction of the West Virginia Board of Pharmacy (“the Board”) in cases where a pharmacy is located within a larger store or retail establishment. This Opinion is issued pursuant to W.Va. Code § 5-3-1, which provides that the Attorney General “shall give written opinions and advice upon questions of law . . . whenever required to do so, in writing, by . . . any . . . state officer, board, or commission.” To the extent this Opinion relies on facts, it is based solely on the factual assertions provided in your correspondence with the Office of the Attorney General.          In your letter you explain that the Board has “declared that the sale of cannabidiol (“CBD”) in [a] pharmacy setting is prohibited.” You note that, because some pharmacies are located within larger retail establishments, the “Board is unclear where its jurisdiction ends” in cases where a store that “contain[s] a pharmacy . . . wish[es] to sell CBD outside of the pharmacy setting but still within the facility.” Specifically, you ask whether “the entire store” may be “considered a pharmacy”—and thus subject to the regulatory authority of the Board—in circumstances like these.          Your letter raises the following legal question:

Where a larger retail establishment contains a pharmacy, does the authority of the West Virginia Board of Pharmacy extend to the entire premises, or only the specific area where drugs are dispensed or pharmacist care is provided?

         We conclude that the Board’s jurisdiction under W.Va. Code § 30-5-7 does not extend to different departments and areas of a larger store that contains a separate pharmacy area.          Discussion          The Board’s authority, which is set forth in Chapter 30, Article 5 of the West Virginia Code—the Pharmacy Practice Act—includes the power to promulgate rules for the “[r]egulation of pharmacies.” W.Va. Code § 30-5-7(23). As used within Article 5, a “pharmacy” means “any place within this state where drugs are dispensed and pharmacist care is provided and any place outside of this state where drugs are dispensed and pharmacist care is provided to residents of this state.” Id. § 30-5-4(53). The same code section also defines the two components of this definition: what it means for “drugs” to be dispensed and for “pharmacist care” to be provided. First, a “drug” is a substance that is (1) so recognized “by the United States Food and Drug Administration, or in any official compendium, or supplement”; (2) “designated by the board, for...