- 16 - drugs administered in the practice are subordinate to the provision of the medical services. We disagree with respondent's contention that "The transfer of the drugs is clearly a commercial transaction" to the extent he implies a commercial transaction is the conveyance of merchandise. Given the nature of the services petitioner provides and the substance of the service transactions, we are convinced petitioner is not selling merchandise when it administers chemotherapy drugs. The case of Abbott Labs. v. Portland Retail Druggists Association, Inc., 425 U.S. 1 (1976), parallels that conviction. There, the Supreme Court decided whether drugs purchased by a nonprofit hospital at prices lower than those charged commercial pharmacists were exempt from the antiprice discrimination provisions of the Robinson-Patman Antidiscrimination Act, ch. 592, 49 Stat. 1526 (1936), 15 U.S.C. sec. 13(a) (1994). The exemption generally applies where the nonprofit institution is purchasing the drugs for its "own use" as opposed to for sale to patients. In siding with the hospital's contention that it was exempt, the Court stated: it seems to us to be very clear that a hospital's purchase of pharmaceutical products that are dispensed to and consumed by a patient on the hospital premises, whether that patient is bedded, or is seen in the emergency facility, or is only an outpatient, is a purchase of supplies for the hospital's "own use," * * *. In our view, * * * this is so clear that it needs no further explication. [Abbot Labs. v. Portland Retail Druggists Association, supra at 10-11; emphasis added.]Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
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