NYCLU Action Prompts Duane Reade to Correct Mistakes, Ensure Lawful Sale of Plan B

The New York Civil Liberties Union provided Duane Reade pharmacies a refresher course on state and federal privacy laws after a customer at a Brooklyn store was illegally instructed to record her personal information before she could purchase over-the-counter emergency contraception, Plan B.

The pharmacy chain acknowledged its error last week and pledged to retrain the store’s employees about the correct procedures for selling Plan B. It also has circulated its policy for selling Plan B throughout the chain.

“We applaud Duane Reade for admitting its mistake and taking swift steps to ensure it doesn’t happen again,” said Galen Sherwin, director of the New York Civil Liberties Union Reproductive Rights Project. “Asking for personal information besides proof of age from purchasers of emergency contraception is unnecessary and inappropriate. People don’t surrender their privacy rights at the pharmacy counter.”

In late October, the NYCLU Reproductive Rights Project was contacted about an incident that had occurred at the Duane Reade pharmacy at 386 Fulton St. in Brooklyn. A woman had tried to purchase Plan B, but the clerk at the pharmacy counter refused to sell her the medication unless she wrote down her name, address, telephone number and date of birth on a pad of paper in plain view of other customers.

The woman, Dante Melville, had presented a valid driver’s license as proof of age, as required by Federal Drug Administration guidelines. Melville believed the clerk was violating her rights.

“I knew something was wrong. It felt instinctively wrong,” Melville said. “A light went off. This is crazy, I thought. I should be able to make my purchase in private.”

Following the incident, Melville sent an e-mail to the pharmacy chain complaining of her treatment, and notified reproductive rights groups of the incident.

In a Nov. 1 letter, the NYCLU Reproductive Rights Project informed Duane Reade’s general counsel that the clerk’s actions infringed the customer’s privacy rights and violated confidentiality protections under state and federal law.

“Consumer privacy is of paramount importance, especially when it comes to treatments like emergency contraception that implicate reproductive health,” said Sherwin. “Conditioning the sale of Plan B on disclosure of personal identifying information runs the risk of deterring consumers from seeking the medication for fear of public exposure.”

The FDA approved the over-the-counter sale of Plan B to anyone 18 or older in August 2006. Plan B prevents pregnancy if taken within 72 hours of unprotected sex or sexual assault, and is more effective the sooner it is used. All that is required under FDA guidelines is proof of age through presentation of a government-issued I.D. Young women under 18 require a prescription.

Duane Reade conducted an internal investigation of the incident and concluded that the drug clerk had not properly been trained on appropriate Plan B procedures, according to a Nov. 27 letter to the NYCLU from Michelle Bergman, the chain’s general counsel. Bergman said the chain is retraining all pharmacy personnel at the Brooklyn store and has reissued its Plan B policies and procedures to the entire pharmacy chain. The policy informs pharmacists that they must sell Plan B to anyone 18 or over, and that they are not to keep any log book or record of purchases.

The pharmacy chain also asked the NYCLU to convey its apologies to Melville.

“I feel vindicated – not just for myself but for all the female customers of that store who had to endure that,” Melville said. “It was very intrusive and embarrassing.”