Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 88265 December 21, 1989
SANTIAGO A. DEL ROSARIO, GEORGE G. GACULA,
EDGARDO G. SANTOS, ALBANO S. SIBAL, ALBERTO C.
REES, NONITO P. ARROO, EMMANUEL !. TERENCIO,
DOMINGO S. DE LEON, MODESTO O. LLAMAS, !ARIDA
U. ALONTO, "ENAIDA A. !LOIRENDO, ISABEL A. ME#IA,
LU" P. MABANAG, RAMON $. RABAGO, #R., SAMUEL D.
TROCIO %&' OSCAR M. BRION, petitioners,
vs.
$ON. AL!REDO R. BENG"ON, (& )(* c%+%c(,- %*
Secre,%r- o. ,)e De+%r,me&, o. $e%/,), respondent.
Facundo T. Bautista for petitioners.

GRI0O1A2UINO, J.:
This is a class suit fled by ocers of the Philippine Medical
Association, the national or!ani"ation of #edical doctors in
the Philippines, on behalf of their professional brethren $ho
are of %indred persuasion, $herein this Court is as%ed to
declare as unconstitutional, hence, null and void, so#e
provisions of the &enerics Act of '()) *Rep. Act No. ++,-.,
and of the i#ple#entin! Ad#inistrative /rder No. +0 issued
pursuant thereto, specifcally1
*a. 2ection +, Pars. *a. and *b. of the &enerics Act $hich
provide1
a. All !overn#ent health a!encies and their
personnel as $ell as other !overn#ent
a!encies shall use !eneric ter#inolo!y or
!eneric na#es in all transactions related to
purchasin!, prescribin!, dispensin! and
ad#inisterin! of dru!s and #edicines.
b. All #edical, dental and veterinary
practitioners, includin! private practitioners,
shall $rite prescriptions usin! the !eneric
na#e. The brand na#e #ay be included if so
desired. *p. +, Rollo..
*b. 2ection '0, Pars. *b., *c. and *d. of the sa#e la$ $hich
provide1
b. 3or the second conviction, the penalty of
fle in the a#ount of not less than t$o
thousand pesos *P0,444.44. but not
e5ceedin! fve thousand pesos *P-,444.44. at
the discretion of the court.
c. 3or the third conviction, the penalty of fne
in the a#ount of not less than fve thousand
pesos *P-,444.44. but not e5ceedin! ten
thousand pesos *P'4,444.44. and suspension
of his license to practice his profession for
thirty *64. days at the discretion of the court.
d. 3or the fourth and subse7uent convictions,
the penalty of fne of not less than ten
thousand pesos *P'4,444.44. and suspension
of his license to practice his profession for one
year or lon!er at the discretion of the court.
*pp. +8,, Rollo.. and
*c. 2ections 9 and ,, Phase 6 of Ad#inistrative /rder No. +0,
2eries of '()( dated March (, '()(, of the respondent
2ecretary of :ealth, $hich read as follo$s1
2ection 9. Violative Erroneous, and Impossible
Prescriptions.
9.'. ;iolative Prescriptions1
9.'.' <here the !eneric na#e is not $ritten=
9.'.0 <here the !eneric na#e is not le!ible
and a brand na#e $hich is le!ible is $ritten=
9.'.6 <here the brand na#e is indicated and
instructions added, such as the phase >No
2ubstitution> $hich tend to obstruct, hinder or
prevent proper !eneric dispensin!.
9.0 <hat to do $ith ;iolative Prescriptions.
;iolative prescriptions shall not be flled. They
shall be %ept and reported by the phar#acist
of the dru! outlet or any other interested
party to the nearest ?/: /cer for
appropriate action. The phar#acist shall
advise the prescriber of the proble# and@or
instruct the custo#er to !et the proper
prescription.
9.6 Erroneous Prescriptions1
9.6.' <hen the brand na#e precedes the
!eneric na#e.
9.6.0 <here the !eneric na#e is the one in
parenthesis.
9.6.6 <here the brand na#e in *sic. not in
parenthesis.
9.6.9 <here #ore than one dru! product is
prescribed in one prescription for#.
9.9 <hat to do $ith erroneous prescriptions.
Erroneous prescriptions shall be flled. 2uch
prescriptions shall also be %ept and reported
by the phar#acist of the dru! outlet or any
other interested party to the nearest ?/:
/ce for appropriate action.
555 555 555
2ection ,. Timetable of Implementation.
An order to !ive all aBected parties ade7uate
ti#e for learnin! and adCust#ent, the
i#ple#entation of these Rules and
Re!ulations shall be in three phases, as
follo$s1
Phase ' Education ?rive ...
Phase 0 Monitorin! of Co#pliance
555 555 555
Phase 6 A#ple#entation.
Be!innin! 2epte#ber ', '()( the ?/: and
the other relevant a!encies of !overn#ent
shall #onitor co#pliance $ith these Rules and
Re!ulations and all violations shall be subCect
to the appropriate sanctions and penalties
provided for under these Rules and
Re!ulations and the &enerics Act of '()).
*pp. ,8(, Rollo..
/n March '-, '()(, the full te5t of Republic Act No. ++,-
$as published in t$o ne$spapers of !eneral circulation in
the Philippines. The la$ too% eBect on March 64, '()(,
ffteen *'-. days after its publication, as provided in 2ection
'- thereof.
2ection ,, Phase 6 of Ad#inistrative /rder No. +0 $as
a#ended by Ad#inistrative /rder No. ,+ dated Au!ust 0),
'()( by postponin! to Danuary ', '((4 the eBectivity of the
sanctions and penalties for violations of the la$, provided in
2ections + and '0 of the &enerics Act and 2ections 9 and ,
of the Ad#inistrative /rder.
The petitioners alle!e that Eas of this date, there is no
breach or violation yetE of the la$ *p. (, Rollo., $hich too%
eBect on March 64, '()(. :o$ever, as the penal provisions
$ill only ta%e eBect on Danuary ', '((4, it $ould have been
#ore accurate to state that Eas of this date, no breaches or
violations of the la$ have been punished yetE *p. (, Rollo..
The petition is captioned as an action for declaratory relief,
over $hich this Court does not e5ercise Curisdiction.
Nevertheless, in vie$ of the public interest involved, $e
decided to treat it as a petition for prohibition instead.
The petitioner>s #ain ar!u#ent a!ainst para!raphs *a. and
*b., 2ection + of the la$, is the alle!ed une7ual treat#ent of
!overn#ent physicians, dentists, and veterinarians, on one
hand, and those in private practice on the other hand, in the
#anner of prescribin! !eneric dru!s, for, $hile the for#er
are alle!edly re7uired to use only !eneric ter#inolo!y in
their prescriptions, the latter #ay $rite the brand na#e of
the dru! in parenthesis belo$ the !eneric na#e. The
favored treat#ent of private doctors, dentists and
veterinarians under the la$ is alle!edly a specie of invalid
class le!islation.
There is no #erit in that ar!u#ent for it proceeds fro# a
#isreadin! and #isinterpretation of the letter and intent of
para!raphs *a. and *b., 2ection + of the &enerics Act.
Andeed, as e5plained by the public respondent1
... $hile para!raph *a. enu#erates the
!overn#ent transactions *>Purchasin!,
prescribin!, dispensin! and ad#inisterin! of
dru!s and #edicines>. $here the sole use of
!eneric ter#inolo!y has been re7uired, the
>prescription> of dru!s is further !overned by
para!raph *b.. And the use of the word 'all' in
the latter provision emphasies the absence
of an! distinction between "overnment and
private ph!sicians. An other $ords, in
prescribin! dru!s, physicians, $hether in
!overn#ent service or in private practice, are
both !overned by e5actly the sa#e rules, and
thus, are both authori"ed to include the brand
na#e in their respective prescriptions. *p. 99,
Rollo..
3urther#ore, it #ay be observed that $hile para!raph *a.
refers to Eall !overn#ent health a!encies, and their
personnel as $ell as other !overn#ent a!enciesE *not
necessarily physicians, dentists and veterinarians.,
para!raph *b. refers to #all medical, dental and veterinar!
practitioners, includin" private practitioners.#
Petitioners concede that the re7uire#ent for doctors,
dentists, and veterinarians to use the !eneric ter#inolo!y in
$ritin! their prescriptions, follo$ed by the brand na#e in
parenthesis, is E$ell and !oodE *p. '0, Rollo.. :o$ever, they
co#plain that under para!raph *d. of the la$ $hich reads1
*d. ?ru! outlets, includin! dru!stores,
hospital and non8hospital phar#acies and
non8traditional outlets such as super#ar%ets
and stores, shall infor# any buyer about any
and all other dru! products havin! the sa#e
!eneric na#e, to!ether $ith their
correspondin! prices so that the buyer #ay
ade7uately e5ercise his option. <ithin one *'.
year after approval of this Act, the dru!
outlets referred to herein, shall post in
conspicuous places in their establish#ents, a
list of dru! products $ith the sa#e !eneric
na#e and their correspondin! prices. *Anne5
A, p. 06, Rollo..
the sales!irl at the dru!store counter is authori"ed to
Esubstitute the prescribed #edicine $ith another #edicine
belon!in! to the sa#e !eneric !roup.E 2ince doctors are not
allo$ed to instruct the dru!!ist not to substitute the
prescription, or to E?ispense only as PrescribedE *per 2ec. 9,
Ad#. /rder No. +0., the petitioners ar!ue that Ethe act of
prescribin! the correct #edicine for the patient beco#es the
act of the sales!irl at the dru!store counter, no lon!er the
act of the physician, dentist, or veterinarianE *p. '0, Rollo..
:ere a!ain, the petitioners have distorted the clear
provisions of the la$ and the i#ple#entin! ad#inistrative
order. 3or it is plain to see that neither para!raph *d. of
2ection + of the &enerics Act, nor 2ection 9 of
Ad#inistrative /rder No. +0, !ives the sales!irl and@or
dru!!ist the discretion to substitute the doctor>s
prescription.
/n the contrary, 2ection 9, par. 9.', of Ad#inistrative /rder
No. +0 directs the phar#acist not to $ll Eviolative
prescriptionsE *$here the !eneric na#e is not $ritten, or
ille!ibly $ritten, and the prescription of a brand na#e is
acco#panied by the doctor>s instruction not to substitute it.,
as $ell as #impossible prescriptions# *par. 9.-.. Even a
doctor>s EerroneousE prescriptions Eshall be flled,E not
substituted *par. 9.6, Ad#. /rder No. +0.. And, 2ections 6
and - of Ad#. /rder No. +6 enCoin the dru! outlets not *to.
favor or su!!estE or Ei#poseE a particular brand or product
on the custo#er. The ad#inistrative older provides1
An order to ensure the infor#ed choice and
use of dru!s by the patient@ buyer, the dru"
outlet is re%uired to&
6.'.' Anfor# the patient@buyer
of all available dru! products
!enerically e7uivalent to the
one prescribed $ith their
correspondin! prices. An so
doin!, the dru" outlet shall not
favor or su""est an! particular
product so that the
patient'bu!er ma! full! and
ade%uatel! e(ercise his option
to choose *2ec. 6, Ad#. /rder
No. +6 s. '()(..
555 555 555
The followin" acts or omissions are
considered violations of these rules and
re"ulations&
-.' Imposin" a particular brand or product on
the bu!er. ... *pp. 9+89,, Rollo..
The sales!irl at the dru!store counter, #erely informs the
custo#er, but does not deter#ine *for she is inco#petent to
do so. all the other dru! products or brands that have the
sa#e !eneric na#e, and their correspondin! prices. That
infor#ation she #ay obtain fro# the list of dru! products
deter#ined by the Bureau of 3ood and ?ru!s to have the
sa#e !eneric na#e, or $hich are the che#ical, biolo!ical,
and therapeutic e7uivalent of the !eneric dru!. All
dru!stores or dru! outlets are re7uired by the la$ to post
such list in a conspicuous place in their pre#ises for the
infor#ation of the custo#ers, for the choice of $hether to
buy the e5pensive brand na#e dru!, or the less e5pensive
!eneric, should be e5ercised by the custo#er alone.
The purpose of the &enerics Act is to carry out the policy of
the 2tate1
To pro#ote, encoura!e and re7uire the use of
!eneric ter#inolo!y in the i#portation,
#anufacture, distribution, #ar%etin!,
advertisin! and pro#otion, prescription and
dispensin! of dru!s=
To ensure the ade7uate supply of dru!s $ith
!eneric na#es at the lo$est possible cost and
endeavor to #a%e the# available for free to
indi!ent patients=
To encoura!e the e5tensive use of dru!s $ith
!eneric na#es throu!h a rational syste# of
procure#ent and distribution=
To e#phasi"e the scientifc basis for the use
of dru!s, in order that health professionals
#ay beco#e #ore a$are and co!ni"ant of
their therapeutic eBectiveness= and
To pro#ote dru! safety by #ini#i"in!
duplication in #edications and@or use of dru!s
$ith potentially adverse dru! interactions.
*pp. 6)6(, Rollo..
or, as stated by the public respondent, Eto pro#ote and
re7uire the use of !eneric dru! products that are
therapeutically e7uivalent to their brand8na#e counter8
partsE *p. 6(, Rollo. for #the therapeutic e)ect of a dru"
does not depend on its 'brand' but on the 'active
in"redients' which it contains.# The medicine that cures is
the #active in"redient# of the dru", and not the brand name
b! which it has been baptied b! the manufacturer.
The public respondent points out that the institution of
!enerics in the Philippines $ill co#pel physicians to
prescribe dru!s based on their therapeutic or Eactive
in!redient,E instead of their $ell8%no$n brand na#es.
Multiple #edications $hich #ay produce potentially
adverse, even lethal, che#ical reactions in the patient $ill
thereby be avoided. Patients $ith li#ited #eans $ill be able
to buy !eneric dru!s that cost less but possess the sa#e
active in!redients, dosa!e for#, and stren!th as brand
na#es, #any of $hich are priced beyond the reach of the
co##on tao because the hi!h costs of advertisin!,
pac%a!in!, royalties, and other inputs of production
deter#ine their pricin! for the #ar%et.
The Court has been unable to fnd any constitutional
infr#ity in the &enerics Act. At, on the contrary, i#ple#ents
the constitutional #andate for the 2tate Eto protect and
pro#ote the ri!ht to health of the peopleE and Eto #a%e
essential !oods, health and other social services available to
all the people at a)ordable cost# *2ection '-, Art. AA and
2ection '', Art. FAAA, '(), Constitution..
The prohibition a!ainst the use by doctors of Eno
substitutionE and@or $ords of si#ilar i#port in their
prescription, is a valid re!ulation to prevent the
circu#vention of the la$. At secures to the patient the ri!ht
to choose bet$een the brand na#e and its !eneric
e7uivalent since his doctor is allo$ed to $rite both the
!eneric and the brand na#e in his prescription for#. Af a
doctor is allo$ed to prescribe a brand8na#e dru! $ith Eno
substitution,E the patient>s option to buy a lo$er8priced, but
e7ually eBective, !eneric e7uivalent $ould thereby be
curtailed. The la$ ai#s to beneft the i#poverished *and
often sic%ly. #aCority of the population in a still developin!
country li%e ours, not the aGuent and !enerally healthy
#inority.
There is no #erit in the petitioners> theory that the &enerics
Act i#pairs the obli!ation of contract bet$een a physician
and his patient, for no contract ever results fro# a
consultation bet$een patient and physician. A doctor #ay
ta%e in or refuse a patient, Cust as the patient #ay ta%e or
refuse the doctor>s advice or prescription. As aptly observed
by the public respondent, no doctor has ever fled an action
for breach of contract a!ainst a patient $ho refused to ta%e
prescribed #edication, under!o sur!ery, or follo$ a
reco##ended course treat#ent by his doctor * p. -6, Rollo..
An any event, no private contract bet$een doctor and
patient #ay be allo$ed to override the po$er of the 2tate to
enact la$s that are reasonably necessary to secure the
health, safety, !ood order, co#fort, or !eneral $elfare of the
co##unity. This po$er can neither be abdicated nor
bar!ained a$ay. All contractual and property ri!hts are held
subCect to its fair e5ercise *An!lo83il Tradin! Corporation vs.
Ha"aro, '09 2CRA 9(-..
Petitioners have also assailed 2ection '0, para!raphs b, c
and d, of the &enerics Act prescribin! !raduated penalties
*ran!in! fro# a repri#and to a fne of not less that P'4,444
and the suspension of the physician>s license to practice his
profession for one I'J. year or lon!er, at the discretion of
the court. for violations of its provisions. Petitioners>
alle!ation that these penalties violate the constitutional
!uarantee a!ainst e5cessive fnes and cruel and de!radin!
punish#ent, has no #erit. Penal sanctions are indispensable
if the la$ is to be obeyed. They are the EteethE of the la$.
<ithout the#, the la$ $ould be toothless, not $orth the
paper it is printed on, for physicians, dentists and
veterinarians #ay freely i!nore its prescriptions and
prohibitions. The penalty of suspension or cancellation of
the physician>s license is neither cruel, inhu#an, or
de!radin!. At is no diBerent fro# the penalty of suspension
or disbar#ent that this Court inKicts on la$yers and Cud!es
$ho #isbehave or violate the la$s and the Codes of
Professional and Dudicial Conduct.
<e hold that the &enerics Act and the i#ple#entin!
ad#inistrative orders of the 2ecretary of :ealth are
constitutional. An li!ht of its benefcial provisions, $e cannot
heed the petitioners> plea to %ill it abornin!, i.e., before it
has had a chance to prove its value to our people as
envisioned by its #a%ers.
<:ERE3/RE, the petition is dis#issed for lac% of #erit.
Costs a!ainst the petitioners.
2/ /R?ERE?.
Fernan, *.+., ,arvasa, *ru, Paras, Feliciano, -anca!co,
Padilla, Bidin, .armiento, *ortes, /edialdea and 0e"alado,
++., concur.
/elencio12errera, +., concurs in the result.