Wesely, 040985 NEAGO, AGO 85057
Docket Nº | AGO 85057 |
Case Date | April 09, 1985 |
Court | Nebraska |
Any pharmacy operating outside the State of Nebraska which ships, mails, or delivers in any manner a dispensed prescription drug into the State of Nebraska shall hold a pharmacy license issued by the Department of Health, and that part of such pharmacy operation which dispenses prescriptions to Nebraska residents shall comply with Nebraska law, rules, and regulations governing the practice of pharmacy. The Department of Health, upon recommendation of the Board of Examiners in Pharmacy, shall adopt and promulgate rules and regulations, including provisions for enforcement, necessary to carry out this section.The constitutionality of a state's attempt to license or otherwise regulate out-of-state pharmacies which mail prescription drugs into the state has been considered previously by various authorities with differing results. For example, the Attorneys General of Wisconsin and California have indicated that such regulation is constitutionally permissible under the Commerce Clause of the United States Constitution. In contrast, the Attorney General of Ohio has indicated that such regulation is unconstitutional. Given these conflicting authorities, we must proceed with our own independent analysis of your question. LB 578, by its express language, applies to pharmacies outside the State of Nebraska which ship or otherwise deliver dispensed prescription drugs into the state. Interstate commerce is commerce between the states as opposed to commerce wholly within a state. Ware & Leland v. Mobile County, 209 U.S. 405 (1908). Consequently, LB 578 involves an attempt by the State of Nebraska to regulate a form of interstate commerce. There is no question but- that the state can...
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