                                  March    3, 1975


The Honorable J. H. Arnette,  R. Ph.                 Opinion No.   H-   542
Texas State Board of Pharmacy
914 Littlefield Building                             Re: Whether Board of Pharmacy,
Austin,   Texas  78701                               when it has closed a pharmacy
                                                     department,  may post a sign to
                                                     that effect.

Dear Mr.   Arnette:

         On behalf of the Texas State Board of Pharmacy 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 in the
prescription   departments  or areas of pharmacies   which have been duly
determined   by the Board to have violated the laws respecting pharmaceuticals
a sign be posted informing the public that “This Prescription     Department
has been closed by order of the Texas State Board of Pharmacy,       ” during
such times as the Board has directed that the pharmacy department of a
retail outlet be closed.

         Section 4 of article 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        of its duties and the duties of its officers
and employees.      . . .” Section 7 makes it the duty of the Board to see
that the pharmacy laws are enforced.           Section 15 requires that “[i]n all
stores in which a registered       pharmacist    is continually employed -and
where the provisions      of this Act have been fully complied with, there
should be displayed in a prominent place in or on the front of said store
the word “pharmacy.       ” Section 16 makes it unlawful for any person to
display in or on any place of business any words which would mislead
the public into believing that prescriprions        could be filled there. Section
20A, added by Acts 1973, 63rd Leg.,          ch. 431,. p. 1178, recognizes     that
prescription    drugs are designated as such because they are patent medica-
tions not safe for use except when medically          necessary    and then only under




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




close.professional  supervision  and control,  and section 21 specifies that
every license to ,any proprietor  or employee to conduct a drug store or
pharmacy shall be conspicuously     displayed in the place of business.

         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 in its 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.   In such situations we think that it is within the authority of
the Texas State Board of Pharmacy,         if done pursuant to duly adopted and
fairly administered     regulations,  to direct that such places of business
which have been prohibited from dispensing drugs but which retain indicia
which might mislead the public into believing otherwise,         post the sign
referred   to above during such times as the Board has properly directed
that the pharmacy department of such a place of business be closed.

                                  SUMMARY

                     The Texas State Board of Pharmacy     under
                appropriate  circumstances   and pursuant to fairly
                administered   regulations and for purposes of pro-
                tecting the public against misleading  appearances
                may direct that a sign be posted informing the
                public that a prescription department of a retail
                outlet has been closed by order of the Board.

                                                  Very   truly yours,




C. ROBERT HEATH,         Chairman
Opinion Committee


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