Osteopathic Medical Oncology and Hematology, P.C. - Page 47




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          merchants).  The majority mischaracterizes a provision of the               
          Nonprofit Institutions Act, 15 U.S.C. sec. 13(c) (1994).  That              
          provision provides as follows:  “Nothing in the * * * Robinson-             
          Patman Antidiscrimination Act, shall apply to purchases of their            
          supplies for their own use by schools, colleges, universities,              
          public libraries, churches, hospitals, and charitable                       
          institutions not operated for profit.”  The provision does not              
          establish a dichotomy between use and sale, as suggested by the             
          majority.5  See, e.g., De Modena v. Kaiser Found. Health Plan,              
          Inc., 743 F.2d 1388, 1393 (9th Cir. 1983) (referring to Abbott              


               5  In Abbott Labs. v. Portland Retail Druggists Association,           
          Inc., 425 U.S. 1 (1976), each of the hospitals in question                  
          operated a pharmacy, which was a separate department of the                 
          hospital, and whose operations produced revenue in excess of                
          cost.  The pharmacies dispensed the pharmaceutical products in              
          question.  The Supreme Court used the terms “sales” and                     
          “dispensations” with reference to those products, and without any           
          clear distinction between the two terms.  The Supreme Court                 
          categorized the following dispensations as for the hospitals’               
          “own use”:                                                                  
               1.  To the inpatient, or to the emergency facility patient,            
          upon his discharge and for his personal use away from the                   
          premises.                                                                   
               2.  To the outpatient for personal use away from the                   
          premises.                                                                   
               3.  To the hospital’s physicians, employees, or students,              
          for their personal use or for the use of their dependents.                  
               Clearly the third category, if not all three, constitutes              
          sales of merchandise by the pharmacies, notwithstanding that such           
          merchandise was acquired for the hospitals’ own use.  Nothing in            
          the opinion indicates that the pharmacies failed to inventory               
          their pharmaceuticals.                                                      




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