SECTIONS 4380-4382 - California Statutes

BUSINESS AND PROFESSIONS CODE

SECTION 4380-4382

4380. (a) The resale, by any person, of drugs acquired at
preferentially low prices permitted under federal law only because of
the Nonprofit Institutions Act (15 U.S.C. Sec. 13c) is prohibited
except in any of the following instances:
(1) When for the person's own use, as defined by the federal
courts in Abbott Labs. v. Portland Retail Druggists (425 U.S. 1, 47
L. Ed. 2d 537) and DeModena v. Kaiser Foundation Health Plan, Inc.
(743 F. 2d 1388).
(2) When sold to a purchaser also eligible for those prices under
the Nonprofit Institutions Act, that controls, is controlled by, or
is under common control with, the seller, and that purchases the
products for its own use, as defined in paragraph (1).
(3) When sold to a walk-in customer pursuant to a prescription,
provided that those sales represent less than 1 percent of the drugs
purchased by the seller for its own use in this state.
(b) Nothing in this article prohibits the resale of drugs to any
person in the occasional emergency situation where no other sources
are readily available in the community to meet the emergency need.

4381. (a) A violation of this article is an act of unfair
competition within the meaning of Chapter 5 (commencing with Section
17200) of Part 2 of Division 7, and this article is enforceable as
provided in that chapter.
(b) In addition thereto, any person or trade association may bring
an action to enjoin and restrain any violation of this article and
to recover actual damages, if any.
(c) In an action for injunctive relief under this article, it is
not necessary to allege or prove actual damages or the threat
thereof, or actual injury or the threat thereof, to the plaintiff. In
addition to injunctive relief, the plaintiff in any action shall
recover three times the amount of his or her actual damages, if any,
as well as three times the actual damages, if any, sustained by any
person who has assigned to the plaintiff a claim for damages
resulting from a violation of this section. In any action under this
article in which judgment is entered against the defendant, the
plaintiff shall be awarded reasonable attorneys' fees together with
the costs of suit.
(d) In issuing an injunction against a violation under this
article, the court may, in its discretion, include any other
restraint it deems expedient in order to deter the defendant from and
ensure against future violations of this article.
(e) Proof of malice or intent to harm competition is immaterial to
sustain a cause of action under this article.

4382. The board may audit persons for compliance with the limits
established in paragraph (3) of subdivision (a) of Section 4380
except that in the case of a facility or pharmacy that predominately
serves members of a prepaid group practice health care service plan,
those audits may be undertaken solely by the Department of Managed
Health Care pursuant to its authority to audit those plans.