2006 Delaware Code - Subchapter V — Prohibited Acts; Penalties Generally; Enforcement

§ 2548. Use of certain descriptive titles.

Nothing in this chapter shall be construed to prohibit the use of the phrase, "proprietary medicine store," "patent medicine store" or "health and beauty aids." (Code 1915, § 872; 32 Del. Laws, c. 45, § 2; Code 1935, § 952; 24 Del. C. 1953, § 2581; 68 Del. Laws, c. 206, § 1.)

§ 2549. Fraud; misrepresentations; false affidavits.

(a) Any permit or renewal thereof obtained through fraud or by any false or fraudulent representation shall be void and of no effect in law.

(b) Whoever makes any false or fraudulent representation for the purpose of procuring a license, or renewal thereof, either for the person's self or for another, shall be fined not less than $100 nor more than $1,000. (24 Del. Laws, c. 140, § 18; Code 1915, § 874; Code 1935, § 954; 24 Del. C. 1953, § 2582; 68 Del. Laws, c. 206, § 1; 70 Del. Laws, c. 186, § 1.)

§ 2550. Entry and inspection; penalty.

Whoever in any manner hinders an entry or inspection under §§ 2544 and 2535 of this title shall be fined not more than $500 for each offense. (Code 1935, § 956D; 41 Del. Laws, c. 87, § 5; 24 Del. C. 1953, § 2585; 68 Del. Laws, c. 206, § 1.)

§ 2551. Jurisdiction.

Justices of the Peace shall have jurisdiction over any offenses under this chapter.

Any person convicted of any such offense before a Justice of the Peace may appeal to the Court of Common Pleas in the county in which the conviction was had upon giving bond in the sum of $200 to the State with surety satisfactory to such Justice, provided the appeal is taken and bond given within 3 days from the time of the conviction. (34 Del. Laws, c. 71; Code 1915, § 874A; Code 1935, §§ 955, 956E; 41 Del. Laws, c. 87, § 6; 46 Del. Laws, c. 143, § 1; 24 Del. C. 1953, § 2586; 49 Del. Laws, c. 220, § 27; 68 Del. Laws, c. 206, § 1; 69 Del. Laws, c. 423, § 23.)

§ 2552. Prosecution; duty of Attorney General.

Upon receiving information that any provisions of this chapter have been or are being violated, the Executive Secretary of the Board shall investigate the matter, and, upon probable cause appearing, shall, under the direction of the Board, file a complaint and prosecute the offender before the Board. The Attorney General, upon request of the Executive Secretary, shall take charge of and conduct the prosecutions. (24 Del. Laws, c. 140, § 11; Code 1915, § 860; Code 1935, § 940; 24 Del. C. 1953, § 2588; 68 Del. Laws, c. 206, § 1.)

§ 2553. Substitution of drugs; penalty; exception.

(a) Substitution prohibited. -- Any person or corporation engaged in the business of selling drugs, medicines, chemicals or preparations for medicinal use or of compounding or dispensing physicians' prescriptions, who shall, in person or by agents or employees, or as agent or employee of some other person, knowingly sell or deliver to any person a drug, medicine, chemical or preparation for medicinal use, recognized or authorized by the latest edition of the United States Pharmacopoeia/National Formulary, or prepared according to the private formula of some individual or firm, other or different from the drug, medicine, chemical or preparation for medicinal use, recognized or authorized by the latest edition of the United States Pharmacopoeia/National Formulary, or prepared according to the private formula of some individual or firm, ordered or called for by such person, or called for in a physician's prescription, shall be punished by a fine of not less than $100 nor more than $500 or by not less than 1 month, nor more than 12 months' imprisonment, or both.

(b) Dispensing therapeutically equivalent drug product permitted. -- Notwithstanding subsection (a) of this section, when a pharmacist receives a prescription for a brand or trade name drug product, the pharmacist may dispense a therapeutically equivalent drug product if the following conditions are met:

(1) The prescriber, in the case of a written prescription, places the prescriber's signature on the signature line alongside the words "substitution permitted" provided for pursuant to subsection (c) of this section or, in the case of a verbal prescription, states that substitution may be made, or in the case of an order written in an institution licensed by the Department of Health and Social Services pursuant to Chapter 10 or 11 of Title 16, the prescriber has given written authorization to fill all orders for drugs with therapeutically equivalent drug products, unless otherwise indicated;

(2) The pharmacist informs the patient or the patient's adult representative that a generic drug has been dispensed which results in a monetary savings for the patient;

(3) The pharmacist indicates on the prescription label the name of the manufacturer or distributor of the drug substituted, unless the prescriber otherwise indicates. In addition, the pharmacist shall record on the prescription the name of the manufacturer or distributor of the substituted drug product; and

(4) The drug is therapeutically equivalent according to the United States Food and Drug Administration's "Approved Prescription Drug Products with Therapeutic Equivalents Evaluations" and its supplements.

(c) Prescription form. -- Every prescription written in this State by a person authorized to prescribe drugs and licensed in Delaware shall be on a prescription form containing a line for the prescriber's signature. Alongside or beneath the line shall be clearly printed the words, "Substitution Permitted." Beneath the signature line shall be clearly printed the statement, "In order for a brand name product to be dispensed, the prescriber must handwrite "/tBrand Necessary/t' or "/tBrand Medically Necessary/t' in the space below." Beneath the statement shall be a second line to accommodate the above-mentioned wording. Prescription forms containing the appropriate signature line and statement shall be used by every prescriber of prescription drugs. Nothing in this legislation is intended to mandate generic substitution. (24 Del. C. 1953, § 2589; 53 Del. Laws, c. 90, § 33; 60 Del. Laws, c. 330, §§ 1-3; 62 Del. Laws, c. 161, § 1; 63 Del. Laws, c. 48, §§ 1, 2; 65 Del. Laws, c. 378, § 5; 68 Del. Laws, c. 206, § 1; 70 Del. Laws, c. 149, § 216; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 311, § 1.)

§ 2554. Emergency refills; noncontrolled substances.

A pharmacist may dispense a 72-hour supply of a noncontrolled drug to a patient whose refill authorization has expired under the following conditions:

(1) The pharmacist has attempted to reach the prescriber and determined the prescriber is not available.

(2) The medication is essential for the continuation of therapy for a chronic condition in the pharmacist's professional judgment.

(3) The prescription was originally dispensed at the pharmacy.

(4) The refill date, quantity dispensed and pharmacist's initials must appear on both the original prescription and profile.

(5) The prescriber must be notified either in writing or verbally about the pharmacist's action. The date of the notification must be documented on the prescription and profile.

(6) Each prescription can only be refilled in this manner 1 time. (68 Del. Laws, c. 206, § 1; 70 Del. Laws, c. 186, § 1.)

§ 2555. Authority of Board to impose fines; appeal to Superior Court.

(a) Whenever the Board has found a holder of a license to practice pharmacy or the holder of a pharmacy permit to be guilty of a violation of the rules of the Board or this chapter, in addition to the power and authority granted to the Board by this chapter, the Board shall have the power and authority to impose a fine on the licensee or the permit holder and to require that the license or the permit holder pay a fine with regard to such violation with the sanction that the license or permit may be suspended until the fine is paid. Prior to the imposition of any fine, the Board shall hold an investigation and hearing after notice to the licensee or the licensee's attorney and the fine shall only be imposed and required to be paid if the Board formally finds that the public welfare and morals would not be impaired by the imposition of the fine and that the payment of the sum of money will achieve the desired disciplinary purposes.

(b) No fine imposed by the Board may exceed $500 for each violation of this chapter, nor shall the Board impose a fine on a licensee or a permit holder where the license of such licensee or permit holder has been revoked by the Board of Pharmacy for such violation. The power and authority of the Board of Pharmacy to impose such fines is not to be affected by any other proceeding, civil or criminal, concerning the same violation, nor shall the imposition of such fine preclude the Board from imposing other sanctions short of revocation.

(c) Any person so fined may appeal to the Superior Court of the county in which the alleged violation was committed or in the county where the premises of the permit are located, provided the appeal is taken at any time within 30 days after the receipt by the applicant of the decision of the Board. The appeal to the Superior Court shall be on the record of the proceedings before the Board. (59 Del. Laws, c. 318, § 9; 68 Del. Laws, c. 206, § 1; 70 Del. Laws, c. 186, § 1.)