March 3, 1975
The Honorable J.H. Arnette, R.Ph. Texas State Board ofPharmacy 914Littlefield Building Austin, **Texas** 78701 Opinion No. H- 542
Re: Whether Board ofPharmacy, when it has closed apharmacy department, may post a sign to that effect.
Dear Mr. Arnette:

On behalf ofthe Texas State Board ofPharmacy you have asked whether the Board under article 4542a, V. T. C.S. (the act regulating pharmaceutical practices in Texas), has the authority to direct that inthe prescription departments or areas ofpharmacies which have been duly determined by the Board tohave violated the laws respecting pharmaceuticals a sign be posted informing the public that “This Prescription Department has been closed by order ofthe Texas State Board ofPharmacy, ” during such times as the Board has directed that the pharmacy department ofa retail outlet be closed.

Section 4 ofarticle 4542a, V. T. C.S., confers on the Board the power “to make by-laws and regulations, not inconsistent with the law, for the proper performance ofits duties and the duties ofits officers and employees.

. . .” Section 7makes it the duty ofthe Board to see that the pharmacy laws are enforced. Section 15requires that “[i]n all stores inwhich a registered pharmacist is continually employed and - where the provisions ofthis Act have been fully complied with, there should be displayed ina prominent place in or onthe front of said store the word “pharmacy. ” Section 16makes it unlawful for any person to display in or onany place ofbusiness any words which would mislead the public into believing that prescriprions could be filled there. Section 20A, added byActs 1973, 63rd Leg., ch. 431,. p. 1178, recognizes that prescription drugs are designated as such because they are patent medications not safe for use except when medically necessary and then only under

po 2436The Honorable J.H. Arnette, page 2 (H-542)

close.professional supervision and control, and section 21specifies that every license to,anyproprietor or employee to conduct a drug store or pharmacy shall be conspicuously displayed inthe place ofbusiness.

The Board does not have the authority to confiscate all indicia which might mislead the public. Attorney General Opinion O-3109 (1941). The pharmacy, although closed, will usually still be present inits same physical location, and outward appearance might be such that many potential customers, especially those who had patronized the pharmacy in the past, might be misled into believing that prescriptions could be filled there. Insuch situations we think that it is within the authority of the **Texas** State Board ofPharmacy, if done pursuant to duly adopted and fairly administered regulations, to direct that such places ofbusiness which have been prohibited from dispensing drugs butwhich retain indicia which might mislead the public into believing otherwise, post the sign referred toabove during such times as the Board has properly directed that the pharmacy department of such aplace ofbusiness be closed.
SUMMARY The Texas State Board ofPharmacy under appropriate circumstances and pursuant to fairly administered regulations and for purposes ofprotecting the public against misleading appearances may direct that a sign be posted informing the public that a prescription department ofa retail outlet has been closed by order ofthe Board. Very truly yours,

C. ROBERT HEATH, Chairman Opinion Committee

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