Pharmaceutical Society of Great Britain (PSGB) v Boots Cash Chemist [1952] 2 QB 795

KEY POINTS

• In a self-service system, the sale of poisons introduces a unique dynamic, allowing customers to independently choose items directly from shelves. 

• The self-service setup places responsibility on both customers and the selling entity to ensure a safe and lawful selection, particularly with items like poisons that require careful handling and compliance with legal regulations.

• To enhance safety and legality, the payment process for selected articles, including poisons, takes place at a cash desk with a qualified pharmacist. Governed by legal frameworks, especially the Pharmacy and Poisons Act of 1933, this process must comply with section 18(1)(a)(iii) to meet legal standards and safeguard public health.

• The sale of goods, including poisons, establishes a contractual relationship. Customers make an offer by selecting items, and acceptance occurs at the cash desk during payment. 

• The concept of self-service introduces considerations about the timing of the sale. The point at which customers select items and complete transactions at the cash desk is pivotal. 

FACTS

• Boots Cash Chemists (‘Defendants') single-room branch shop had adopted a "self-service" system featuring a chemist's department overseen by a registered pharmacist.

  • This section displayed various drugs in Part I of the Poisons List under the Pharmacy and Poisons Act of 1933.

  • Customers, upon entering, were given a wire basket to select items from the shelves.

  • The total price was stated at the cashier's desk at one of the two exits, and payment was received.

  • Crucially, the final stage of drug transactions was supervised by the pharmacist, who had the authority to prevent drug removal.

• In response to the Pharmaceutical Society Of Great Britain (‘Plaintiffs') action alleging a violation of section 18(1)(a)(iii) of the Pharmacy and Poisons Act, 1933, which mandates the sale of listed poisons under pharmacist supervision, the case presented these facts.

JUDGEMENT

• In the judgment, it was held that the Defendant's implementation of the self-service system did not constitute an offer to sell.

  • Instead, it was deemed an invitation for the customer to make an offer to purchase.

  • The crucial acceptance of this offer occurred at the cashier's desk under the direct supervision of the registered pharmacist.

• The court concluded that, as a result of this sequence of events, there was no violation of the relevant section (section 18(1)(a)(iii) of the Pharmacy and Poisons Act, 1933.

• The court reasoned that the self-service system, coupled with the final transaction stage supervised by the pharmacist, aligned with the legal requirements, thereby absolving the defendants of any infringement under the specified section.

COMMENTARY

• In this legal case, the defendants implemented an innovative "self-service" system in their single-room branch shop, featuring a chemist's department overseen by a registered pharmacist.

• The system involved customers using wire baskets to independently select items from shelves, with the final transaction, including stating the total price and receiving payment, taking place at the cashier's desk under the pharmacist's supervision.

• The pharmacist had the authority to prevent the removal of drugs.

• In response to the plaintiffs' legal action alleging a violation of section 18(1)(a)(iii) of the Pharmacy and Poisons Act, 1933, which mandates the sale of listed poisons under pharmacist supervision, the case presented these details.

• The subsequent judgment clarified that the defendants' self-service system did not constitute an offer to sell but was deemed an invitation for customers to make an offer to purchase. The crucial acceptance of this offer was identified at the cashier's desk under the direct supervision of the registered pharmacist.

• The court concluded that, given this sequence of events, there was no violation of section 18(1)(a)(iii) of the Pharmacy and Poisons Act, 1933.

  • The court's rationale highlighted the alignment of the self-service system and the final transaction stage supervised by the pharmacist with legal requirements.

  • As a result, the defendants were absolved of any infringement under the specified section, emphasising the careful consideration of the unique circumstances in rendering the judgment.

ORIGINAL ANALYSIS

• Under a statute pharmacists were required to supervise the sale of drugs and Boots’ self service system was accused of breaching this.

• Boots’ pharmacists were close by to the self-service check-out desk and were authorised to intervene and prevent sales of drugs if need be.

• Whether or not there was a breach of the statutory duty came down to whether the contract (and hence an unsupervised sale) was already formed before reaching the checkout or not.

• If prices were offers then putting them in the basket would be acceptance and there would be a breach. If prices were merely invitations to treat then it was the customers who made the offer at the checkout, which could be refused by the supervising pharmacist.

• The CA ruled that advertisements and offers were merely invitations to treat and hence Boots were acquitted of breach of duty. 

Somervell LJ

• To say that the advertisement/price tag is an offer would make the taking of the object an acceptance, which would make the self service mechanism in breach of the statute - he would be reluctant to refuse to allow this more efficient type of checkout.

Romer LJ

• to say that the price tag is an offer would mean that once a person has picked up the object they could never put it back on the shelf or be in breach of the contract

  • Wrong: the courts could simply treat this as an act of contemplation whereas presenting it at the checkout would be the “acceptance - see CW’s objections: the rule prevents advertising of illegal weapons/substances (Fisher v Bell) from being criminalised since an advert isn’t an offer, and it allows proprietors to demand different prices to those on the price tags. 

  • Also fails to distinguish from the Carlill case - i.e. a guidance of when advertising CAN be an offer is needed 

RELATED CASES

• Fisher v Bell

• Carlill v Carbolic Smoke Ball Co