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YOUNGS DRUG PRODS. CORP. v. BOLGER

October 7, 1981

YOUNGS DRUG PRODUCTS CORP., Plaintiff,
v.
William F. BOLGER, et al., Defendants



The opinion of the court was delivered by: PENN

I

The plaintiff manufactures, sells, and distributes contraceptive products, marketing them through sales to wholesale distributors and chain warehouses for resale to retail pharmacists. It publicizes the desirability and availability of its product line by means of a sales force, and advertisements in trade publications and popular magazines of nationwide distribution. However, the plaintiff has apparently found its marketing strategy insufficient to reach many of its potential customers. Plaintiff now seeks to supplement its "mix" of marketing tools by arranging promotional activities in conjunction with its wholesalers and retailers. The proposed promotional activities relevant to this case are efforts to mail to the public, on an unsolicited basis, three types of mailings. One type is informational pamphlets promoting the desirability and availability of prophylactics in general, and Youngs' products in particular. The second type is flyers exclusively or substantially devoted to promoting prophylactics in general, those made by Youngs, and/or those stocked (and perhaps discounted) by a particular drugstore or chain of drugstores. The third type is multi-page, multi-item flyers mailed out by a drugstore or chain and promoting a large variety of products available and perhaps on discount there, including prophylactics. The plaintiff, its wholesalers and retailers seek to send both types of flyers not just to a drugstore's already-known customers, but to the public.

 Youngs has submitted samples of the flyers and promotional materials sought to be mailed. See Exhibit C. There is no dispute that the materials at issue in this case are tasteful expressions on a subject matter that obviously could lend itself to communications that some would find offensive. *fn1" However, in this case, not only are the materials not obscene, there is no suggestion that they treat the subject matter of the desirability and availability of contraceptive products in a pandering, suggestive, or graphic way. Accordingly, the Court's opinion is limited to materials similar to those submitted by the plaintiff.

 II

 Youngs' proposed promotional campaign clashes with the clear express language of 39 U.S.C. § 3001(e), which reads in full:

 
(2) Any unsolicited advertisement of matter which is designed, adapted, or intended for preventing conception is nonmailable matter, shall not be carried or delivered by mail, and shall be disposed of as the Postal Service directs unless the advertisement-
 
(A) is mailed to a manufacturer of such matter, a dealer therein, a licensed physician or surgeon, or a nurse, pharmacist, druggist, hospital, or clinic; or
 
(B) accompanies in the same parcel any unsolicited sample excepted by paragraph (1) of this subsection.
 
An advertisement shall not be deemed to be unsolicited for the purposes of this paragraph if it is contained in a publication for which the addressee has paid or promised to pay a consideration or which he has otherwise indicated he desires to receive.

 Youngs' promotional campaign also conflicts with Postal Service regulations interpreting the reach of the statute. Section 123.434 of the Domestic Mail Manual reads, in pertinent part:

 
Unsolicited advertisements for articles or things which are designed, adapted or intended for preventing conception are nonmailable, except ... when the mailer has no commercial interest in any such item. *fn2"
 
In early 1979, the Postal Service traced an allegation of an unsolicited mailing of advertisements for contraceptive products to the Ketchum Drug Company of New York City, a wholesaler of Youngs' product line. The Service warned Ketchum that the mailing violated the statute. Youngs and Ketchum noted in letters to the Service their view that under Carey v. Population Services International, 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977), the Service could not constitutionally restrict the mailing of a drugstore circular listing on the back page a notice that the pharmacy carried prophylactics, with quantities and prices. The letter further stated that "this circular lists many many items and TROJAN is just one among many traditional drugstore items listed." At that time Youngs also furnished the Service with a copy of a flyer devoted exclusively to promoting contraceptives on sale at $ 5.49 at a particular drugstore, and requested the Service's legal opinion on the mailability of both types of flyers, as well as of promotional pamphlets. The Service rejected the view of Youngs and Ketchum in a letter of February 15, 1980. A reasonable reading of that letter is that it addressed all three types of mailings with respect to which there had been recent correspondence between Youngs and the Service, stating the Service's position that the mailing on an unsolicited basis of both types of flyers, as well as promotional pamphlets, would violate 39 U.S.C. § 3001(e). Thereafter, the plaintiff filed this action, claiming that the statute in question ...

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