December 5, 1980

Mr. Harold H. Schuler, Secretary 
South Dakota Board of Pharmacy 
Sahr Building 
Post Office Box 518 
Pierre, South Dakota 57501

Official Opinion No. 80-74

Bifurcation of Regulatory Mechanism

Dear Mr. Schuler:

You have requested an official opinion from this office in regard to the  following factual situation:

FACTS: 

Under existing statutes, rules and regulations of the South Dakota Board of Pharmacy, a State Professional Regulatory Board, a member of the board must also be a member of the South Dakota Pharmaceutical Association, according to SDCL 36-11-3 and SDCL 36-11-23. 

Membership in the South Dakota Pharmaceutical Association is also a mandatory qualification for a license to practice pharmacy in South Dakota.  SDCL 36-11-23. 

By statute, SDCL 36-11-6, the Secretary and Treasurer of the South Dakota Pharmaceutical Association must also be Secretary and Treasurer of the South Dakota Board of Pharmacy. 

By statute, SDCL 36-11-23, South Dakota pharmacists pay their annual license renewal fee to the Secretary of the South Dakota Pharmaceutical Association, but the license renewal certification is issued by the State Board.

Based on the above factual situation, you have asked the following question:

QUESTION: 

Does a conflict of interest result from the close-connectedness of the South Dakota Pharmaceutical Association and the South Dakota Board of Pharmacy?

It is well agreed that there is no problem with state legislatures creating statutory boards to regulate professions and occupations for the health, safety, and welfare of its citizens.  I am proceeding under the assumption that there is no problem with any of the existing duties and functions of the Board of Pharmacy and am analyzing your question from the viewpoint as to whether or not a bifurcated regulatory mechanism is legal.  SDCL 36-11-3 reads as follows: 

The registered pharmacists of this state shall constitute an association under the name and title of the South Dakota Pharmaceutical Association, the purpose of which shall be to improve the science and art of pharmacy and restrict the sale of medicines to regularly educated and qualified persons. The association shall hold an annual meeting at such time and place as may be determined by it, and it shall report annually to the Governor, recommending the names of at least three members who shall be practicing pharmacists rendering pharmaceutical services to the general public in this state and otherwise qualified to be appointed as members of the state board of pharmacy.

It is my opinion that if the South Dakota Legislature chooses to set out a bifurcated mechanism to regulate the profession of pharmacy and the pharmaceutical industry in the interests of health, safety and welfare of its citizens that the Legislature of the State of South Dakota may do so.  Be advised that in SDCL 36-11 that the Pharmaceutical Association and the Board of Pharmacy have statutorily delineated duties and purposes.  I find none of the authorized functions to be contrary to any state or federal policy or law. The Board and Association should be cognizant, however, that their functions are restricted to those statutorily authorized.

Respectfully submitted,

Mark V. Meierhenry
Attorney General