Wesely, 040985 NEAGO, AGO 85057

• Case Date: April 09, 1985
• Court: Nebraska

Senator Don Wesely AGO 85057 No. 85057 Nebraska Attorney General Opinions State of Nebraska office of the Attorney General April 9, 1985           Date: April 4, 1985           A. EUGENE CRUMP Deputy Attorney General.          Senator Don Wesely          Nebraska State Legislature          1402 State Capitol          Lincoln, NE 68509          Dear Senator Wesely:          This letter is in response to your earlier correspondence in which you requested our opinion as to the constitutionality of LB 578." Specificali3', you asked whether LB 575 violates any state or federal constitutional provisions including the Commerce Clause of the United States Constitution. We have reviewed the bill in question along with various relevant legal authorities. As is discussed below, we have concluded that LB 578 is of suspect constitutional validity.          LB 578 would require pharmacies operating outside the State of Nebraska which mail dispensed prescription drugs into the state to obtain a pharmacy license issued by the Nebraska Department of Health. Such pharmacies would also be required to dispense prescription drugs in Nebraska in compliance with Nebraska law governing the practice of pharmacy. The text of the bill, in its entirety, is as follows:

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...