Civil Division - New Castle County
The Honorable G. Robert Quillen
State Representative, Thirtieth District
House of Representatives
State of Delaware
Legislative Hall
Dover, Delaware 19901
RE: Department of Agriculture Regulations Enacted Pursuant to
16 Del. C. § 4757 (e)
Dear Representative Quillen:
You have asked whether the Department of Agriculture has exceeded its
authority and failed to implement the intent and clear language of 16 Del.
C. § 4757 (e) by enacting regulations that require syringes for poultry
and livestock to be dispensed only pursuant to a valid veterinarian's prescription.
For the reasons set forth below, this office concludes that the Department's
regulations are within the authority granted to it by the statute.
Sixteen Del. C. § 4757 makes it a criminal offense to sell, furnish
or possess a hypodermic needle or syringe without a prescription. Section
4757(a) provides:
No person shall deliver at retail or furnish to any person other than
a practitioner an instrument commonly known as a hypodermic syringe or
an instrument commonly known as a hypodermic needle or any instrument adapted
for the use of narcotic drugs by parenteral injection without a written
order of a practitioner or oral order of a practitioner immediately reduced
to writing by such person.
Section 4757(c) provides:
No person except a practitioner or regular dealer in medical or surgical
supplies or their authorized agents or employees shall possess an instrument
described in subsection (a) of this section, without having in the person's
possession a certificate from a physician certifying that the possession
of such instrument is necessary for the treatment of an injury, deformity
or disease then suffered by the person possessing the same.
The statute separates out certain categories of people and syringe uses,
however, and treats them differently. Subsection (f)(1) specifically exempts
from the requirements of the section wholesale sales by pharmacies, drug
jobbers, drug wholesalers, drug manufacturers and surgical instrument manufacturers
and dealers, and Subsection (f)(2) exempts syringes for industrial use.
The syringe use that is the subject of your inquiry is addressed in
Section 4757(e), which provides:
Nothing in this section shall prohibit the delivery, furnishing, sale,
purchase or possession of an instrument commonly known as a hypodermic
syringe or an instrument commonly known as a hypodermic needle used or
to be used solely and exclusively for treating poultry or livestock and
such delivery, furnishing, sale, purchase, possession or use shall be governed
by rules and regulations to be prescribed by the Department of Agriculture.
The Department of Agriculture has adopted rules and regulations to govern
the delivery, furnishing, sale, purchase, possession or use of hypodermic
syringes and needles. The regulations provide that, in order to obtain
syringes for poultry and livestock use, a person must register and receive
a permit from the Department as a "livestock producer," defined as one
who owns at least five (5) of certain enumerated types of animals, or a
"poultry producer," defined as one who owns a flock of at least twenty
five (25) live fowl.
You have expressed concern regarding the Department's authority to adopt
regulation provision number 5, which provides that "[n]o permit holder
shall deliver, furnish or sell, and no person shall purchase, possess or
use syringes or needles except pursuant to and in accordance with a valid
prescription issued by the Delaware State Veterinarian or a veterinarian
licensed to practice veterinary medicine in the State of Delaware or any
state immediately adjacent to Delaware." Specifically, you have asked whether
the Department may impose a requirement upon livestock and poultry producers
to obtain a prescription for syringes, when poultry and livestock use is
treated differently as a category of syringe use in Section 4757's scheme,
and is not subject to the general prescription requirement of the statute.
To answer your question, this office turns first to the framework that
the Superior Court has set forth in which to examine and interpret the
provisions of a statute:
The foundational rule of statutory construction is that a court must
give a statute its plain meaning if the statutory language is clear and
unambiguous. That is, the court is "bound to give effect to the literal
meaning without consulting other indicia of intent or meaning when the
meaning of the statutory text itself is 'plain' or 'clear and unambiguous."
' This rule makes it necessary first to determine whether a statute has
a plain meaning or is ambiguous in order to know whether other indicia
of intent or meaning should be considered.
Bestemps v. Gibbs, Super. Ct., C.A. No. 98A-04-003, Barron, J.
(October 22, 1998) at 2 (citations omitted).
"Before resort can be made to the usual secondary sources of statutory construction, a Court under our law must at least find ambiguity as to the legislative intent . . . in the language of the statute itself." Townshend v. Liberty Mutual Insurance Co., Super. Ct., C.A. No. 96C-10-180-WTQ, Quillen, J. (May 22, 1998) at 3.
A reading of the plain language of Subsection (e) reveals that the poultry
and livestock syringe use is not, in fact, exempt from the general prescription
requirement of Section 4757; it is merely placed under a different regulatory
scheme implemented and administered by the Department of Agriculture, as
opposed to the Department of Health and Social Services, the agency generally
responsible for regulation and enforcement of Title 16. The Subsection
does not contain any language exempting poultry and livestock syringe use
from the prescription requirement, as Subsection (f) does; it merely requires
the Department of Agriculture to adopt regulations for such use.
Even if the language were ambiguous, such that the principles of statutory
construction are properly applied, application of these principles leads
to the same result. Delaware courts have cited with approval the principle
of "expressio unius est exclusio alterius," meaning, the expression
of one thing is the exclusion of another. Hickman v. Workman, Del.
Supr., 450 A.2d 388, 391 (1982). The only uses and classes of people expressly
excluded from the prescription requirements of the statute are the wholesalers
and related professionals in Subsection (f)(1), and industrial uses in
Subsection (f)(2). Poultry and livestock syringe use is not included in
either of those provisions; therefore, the application of expressio
unius est exclusio alterius dictates the conclusion that such use was
not intended to be excluded from the prescription requirement. Further,
the presence of Subsection (f) is evidence that the legislature considered
the issue of exclusion from the prescription requirement, and in fact provided
for exclusion from the requirement in certain instances. Were poultry and
livestock syringe use intended to be exempt from the requirement, it could
have been included in this subsection, and, significantly, was not.
Additionally, in questions of statutory interpretation, the analysis must recognize that the "[L]egislature inserted every provision for some useful purpose and construction. . . . Similarly, where a provision is expressly included in one section of a statute, but is omitted from another, it is reasonable to assume that the Legislature was aware of the omission and intended it. The Courts may not engraft upon a statute language which has been clearly excluded therefrom by the Legislature." Murtha v. Continental Opticians, Inc., Super. Ct., 729 A.2d 312, 318 (1997)(citations omitted). Construing the statute as eliminating the prescription requirement for poultry and livestock syringe use ignores the fact that this use was not included under Subsection (f), and ignores the evidence of the legislature's intent to treat such use differently by including it in the statute under a separate provision, differently worded than the provision specifically excluding certain uses from the prescription requirement by Subsection (f).
Application of the above principles of statutory interpretation leads
this office to the conclusion that, were poultry and livestock syringe
use intended to be completely exempt from the prescription requirement,
it would have been included in Subsection (f) of the statute with the wholesalers
and industrial users. However, poultry and livestock use is addressed in
a different subsection, which, notably, does not expressly exempt it from
the prescription requirement. Subsection (e) merely provides that nothing
shall prohibit the furnishing or use of syringes on livestock or poultry,
and places the responsibility for regulating the distribution and use of
the syringes on the Department of Agriculture. Because use of syringes
on livestock and poultry is not specifically exempt from the prescription
requirement, the Department of Agriculture has not exceeded its authority
under the statute in adopting regulations which require livestock and poultry
producers to obtain a prescription for such use.
This interpretation is also consistent with the vast majority of statutes
in other states throughout the nation, as most states make no exception
from prescription requirements for syringes purchased or possessed for
use on animals. Only a small number of states permit syringes to be sold
without a prescription, even for use solely on animals.(1)
We do note that, according to the Department of Agriculture, the procedures
imposed by the regulations are designed to require only minimal inconvenience
to animal owners. A prescription can be obtained from a local veterinarian
or from the State Veterinarian, Dr. Towers, and can be filed with the wholesaler
who can ship product upon demand. The prescription is valid for a one year
period and can be renewed at the doctor's discretion. The Department believes
that the safeguards imposed by the regulations are reasonable and designed
to protect the public.
Should you have any additional questions or require any additional information to you as you consider this issue, please do not hesitate to ask. Until then, I remain
Very truly yours,
C. Drue Chichi
Deputy Attorney General
APPROVED:
Michael J. Rich, State Solicitor
xc: The Honorable M. Jane Brady, Attorney General
Mr. Phillip G. Johnson, Opinion Coordinator
1. See Cal. Bus. & Prof. Code § 4145 (West 1996) (California); Conn.Gen. Stat. § 21a-65 (1995) (Connecticut); 720 I.LC.S. 635/5 (1993) (Illinois); Minn. Stat. Ann. § 151.40 (1998) (Minnesota).