DRUGS ‑- WHAT IS A DRUG WHOLESALER?

DRUGS ‑- WHAT IS A DRUG WHOLESALER?

A wholesaler is every person who operates a business wherein he sells drugs or drug sundries at wholesale, namely in quantity lots other than to the consumer, and the State Board of Pharmacy is required to license all said persons.

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                                                                    May 8, 1952

Washington State Board of Pharmacy
309 Douglas Building
Seattle, Washington                                                                                                              Cite as:  AGO 51-53 No. 301

Attention:  Bert B. Densow

Gentlemen:

            We acknowledge receipt of your request of April 25, 1952, for an opinion on the question of "what is a wholesaler," and of your statement of the board's viewpoint and, further, of a letter from one Barney L. O'Connor, owner of a medical supply company and drug wholesaler which prompted your request.

            Our conclusions are as follows:

            A wholesaler is every person who operates a business wherein he sells drugs or drug sundries at wholesale, namely in quantity lots other than to the consumer, and the State Board of Pharmacy is required to license all said persons.

                                                                     ANALYSIS

            The premise of Mr. O'Connor, who undoubtedly reflects the viewpoint of drug wholesalers, appears to be that anyone who sells drugs in quantity is a wholesaler, including pharmacists owning retail drugstores; and it appears to be the concensus of the board members that it should be within the board's discretion to decide who is a wholesaler and license such person after taking into consideration advertising, location, method of doing business and sales representation.

             [[Orig. Op. Page 2]]

            Until the enactment of section 5, chapter 153, Laws of 1949, it appears that drug wholesalers were not licensed by the State of Washington although if the owner thereof came within the definition contained in RCW 18.67.010 et seq., he would be licensed as a pharmacist.  The licensing statute, however, which is RCW 18.67.140 is quoted in part as follows:

            "The owner of each and every place of business which sells drugs or drug sundries at wholesale shall pay a license fee of fifty dollars, and annually thereafter, on or before the first day of June, a like fee of fifty dollars, for which he shall receive a license and registration of location from the state board of pharmacy, which shall entitle such owner to sell drugs and drug sundries at the location specified for the year ending on the next succeeding May 31st, and each such owner shall at the time of filing proof of payment of such fee to the state treasurer file with the state board of pharmacy, on a blank therefor provided, a declaration of ownership and location, which declaration of ownership and location so filed as aforesaid shall be deemed presumptive evidence of the ownership of such place of business mentioned therein.  * * *Provided, That nothing in this section shall apply to the subjobbers who wholesale patent and proprietary medicines of one manufacturer."  (Emphasis supplied)

            It will be noted that this section contains its own definition and, in fact, is not inconsistent with the definitive section above referred to.

            It would follow from the language of the section quoted that for licensing purposes, at least, the board is empowered and required to license, police and regulate any person, and his place of business, who is the owner of a place of business at which drugs or drug sundries are sold at wholesale; said place of business to be registered with the board.  Whether said person is to be licensed as a wholesaler or not depends upon the fact of whether he is operating a business of wholesaling drugs.

            To determine whether or not drugs are sold at wholesale the board is required to consider the activities carried on at said place of business together with representations made to the public as to said activities.  The usual definition  [[Orig. Op. Page 3]] of "wholesale" is the sale of goods in gross to retailers who sell to consumers.  State v. Spence, 53 So. 596, 127 La. 336.  Said term is also considered as the selling in or by unbroken parcels as distinguished from "retail" or divided into small quantities and selling direct to the consumer.  Continental Baking Company v. Campbell, 176 Okl. 218, 55 P. (2d) 114.  "At wholesale" as distinguished from "at retail" means sale in large quantities.  Commonwealth v. Poulin, 187 Mass. 568.  Prices charged also have a bearing.

            It is our conclusion that the board does not have discretion as to whom it shall license as a drug wholesaler, but that it shall gather all information, including quantities of sales, consistency of operations, prices charged and whether or not sales are to the consumer or to a retailer for resale.

            Notwithstanding the fact that a pharmacist owning a drugstore in a retail section of a community was already licensed both as a pharmacist and as the owner of a drugstore, the board would also be expected to require him to be licensed as a wholesaler where the type of business he carries on also includes a continuous and consistent selling of said drugs and drug sundries in large quantities and other than to the ultimate consumer and the board may also consider his representations and advertising.  It will be noted that the legislature did not see fit to exempt retail pharmacies, but embraced "every place of business which sells drugs * * * at wholesale, * * *."

Very truly yours,

SMITH TROY
Attorney General

PHILIP W. RICHARDSON
Assistant Attorney General