- 47 - 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.Page: Previous 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 Next
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