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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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