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Pharmaceutical Society of Great Britain v. Boots

Cash Chemists (Sourhern) Ltd.

[1953] 1Q. B.401,[1953] 1 All E.R.482(C.A.)

The

defendants,

Boots,operated

a

self

–

service

pharmacy

.One

part

of

the

store

was

called

the”Toilet

Dept.,”and

another

the”Chemists

?Dept.”One

of

the

shelves

in

the

chemists?

department

drugs,including

proprietary

medicines

,were

displayed

in

individual packages or containers with an

indication of the price of each. One section

of

the

shelves

in

the

chemists?

deparement

was

devoted

exc

lusively

to

drugs

which

were included in, or which contained substances included in ,Part

Ⅰ

of the Poisons Act ,

1933;…

The

defendants?

staff

included

a

manager

,a

registered

pharmacist,

three

assistants and

two cashiers, and during the time

when the premises were open

for the

sale of drugs the

manager ,the registered pharmacist,and one or

more of the assistants

were present

in the order

to

leave the premises

the customer

had

to pass by

one of two exits, at each of which was a cash desk where a cashier was stationed who

scrurinized

the

articles

selected

by

the

customer,

assessed

the

value

and

accepted

payment .The

chemists?

department

was

under

the

personal

control

of

the

registered

pharmacist, who carried out all his duties at the premises subject to the directions of a

superintendent

appointed

by

the

defendants

in

accordance

with

the

provisions

of

section 9of the Act.

The

pharmacist

was

stationed

near

the

poison

section,

where

his

certificate

of

registration was conspicuously displayed, and was in view of the cash desks. In every

case involving the sale of a drug the pharmacist supervised that part of the transaction

which took place at the cash desk and was authorized by

the defendants to prevent at

that stage of the transaction ,

if

he thought

fit, any customer

from removing any drug

from

the

steps

were

taken

by

the

defendants

to

inform

the

customers,

before

they

selected

any

article

which

they

wished

to

purchase

,

of

the

pharmacist?s

authorization.

On

April

13

,

1951,at

the

defendants?

p

remises,two

customers,following

the

procedure

outlined

above,

respectively

purchased

a

bottle

containing

a

medicine

known as compound syrup of hypophosphites, containing 0.01% W/V strychnine, and

a

bottle

containing

medicine

known

as

famel

syrup,

containing

0.23%W/V

codeine,

both of which substances are poisons included in Part

Ⅰ

of the Poisons List…

The

question

for

the

opinion

of

the

court

was

whether

the

sales

instanced

on

April 13, 1951, were effected by or

under the supervision of a registered pharmacist ,

in

accordance

with

the

provisions

of

section

18(1)(

a

)(iii)

of

the

Pharmacy

and

Poisons Act . 1933.

The

Lord

Chief

Justice

answered

the

question

in

the

affirmative

[[1952]

2

Q .

B .795, [1952] 2 All E . R. 456 ].The Pharmaceutical Society appealed.

S

omervell L. J….

The plaintiffs are the Phaimaceutical Society , incorporated by

Royal

charter

.One

of

their

duties

is

to

take

all

reasonable

steps

to

enforce

the

1

provisions

of

the

Act.

The

provision

in

question

is

contained

in

section

18.[His

Lordship read

the section, stated

the

facts ,and continued:] It

is

not disputed that

in a

chemist?s shop

where

this

self

-service

system does

not prevail a customer

may

go

in

and ask a young woman assistant ,who will not herself be a registered pharmacist, for

one of

these articles on the

list ,and

the

transation

may be completed

and the article

paid

for,

although

the

registered

pharmacist,

who

will

no

doubt

be

on

the

premises,

will

not

know

anything

himself

of

the

transaction,

unless

the

assistant

serving

the

customer,or

the

customer,

requires

to

put

a

question

to

him.

It

is

right

that

I

should

emphasize ,as did the Lord Chief Justice, that these are not dangerous drugs. They are

substances

which contain

very small proportions of poison , and I

imagine that

many

of

them

are

the

type

of

drug

which

has

a

warning

as

to

what

doses

are

to

be

taken.

They are drugs which can be obtained, under the law ,without a doctor?s prescription

.

The point taken by the plaintiffs

is this:

it

is said that the purchase

is complete

if

and

when

a

customer

going

round

the

shelves

takes

an

article

and

that

therefore,

if

that

is right, when

the customer comes

to the pay desk,

having completed the tour of

the premises, the registered pharmacist,

if so

minded, has no power to say:”This drug

ought

not

to be sold

to this customer.” Whether and

in what circumstances

he

would

have

that

power

we

need

not

inquire,

but

one

can,

of

course

,see

that

there

is

a

difference

if

supervision

can

only

be

exercised

at

a

time

when

the

contract

is

completed,

I agree

with the

Lord Chief Justice

in everything that

he

said, but I will put

the

matter shortly in my own words. Whether the view contended for by the plaintiffs is a

right view depends on what are the legal implications of this layout

–

the invitation to

the customer . Is a contract to be regarded as being completed when the article

is put

into the receptacle, or is this to be regarded as a more organized way of doing what is

done already in many types of shops

–

and a bookseller is perhaps the best example

–

namely

, enabling

customers to

have

free access to

what

is

in

the shop,

to

look at

the

different articles, and then,

ultimately, having

got the ones which they wish to buy ,to

come up to

the assistant saying

“I want this?” The assistant

in 999 times out of 1,000

says

“That

is

all

right,

”

and

the

money

passes

and

the

transaction

is

completed.

I

agree… that

in

the case of

an ordinary

shop , although

goods are displayed and

it

is

intended

that

customers

should

go

and

choose

what

they

want,

the

contract

is

not

completed

until,

the

customer

having

indicated

the

articles

which

he

needs

,the

shopkeeper,

or

someone

on

his

behalf,

accepts

that

offer

.

Then

the

contract

is

completed .

I

can

see

no

reason

at

all,

that

being

clearly

the

normal

position,

for

drawing any differernt implication as a result of this layout.

The

Lord

Chief

Justice,

I

think

,

expressed

one

of

the

most

formidable

difficulties

in

the

way

of

the

plaintiffs?

contention

when

he

pointed

out

that

,if

the

plaintiffs

are

right

,once

an

article

has

been

placed

in

the

receptacle

the

customer

himself

is

bound

and

would

have

no

right

,

without

paying

for

the

first

article,

to

substitute

an

article

which

he

saw

later

of

a

similar

kind

and

which

he

perhaps

preferred. I can

see

no reason

for

implying

from

this self

–

service arrangement any

implication

other

than . . .

that

it

is

a

convenient

method

of

enabling

customers

to

see what there is and choose ,and possibly put back and substitute, articles which they

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