State Law Permitting Dispensation of Emergency Contraception by Vending Machines
Legislation passed in 2022 in Massachusetts and in 2023 in Connecticut removes barriers for college students trying to obtain emergency contraception pills like Plan B One-Step. In light of uncertainty around abortion protections following the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, emergency contraception pills—which are not abortion medication—provide an important option for preventing an unwanted pregnancy. Several states have passed or are considering similar legislation, and colleges and universities in at least 17 states have begun installing vending machines that dispense emergency contraception.
In July of 2022, an amendment to M.G.L. c.272 § 21A went into effect in Massachusetts, which clarified that the prohibition on the sale or dispensing of contraceptives via vending machine is limited to only those that must be prescribed. Because Plan B One-Step is available over the counter, it can now be sold in vending machines. Following the passage of this amendment, several colleges and universities around the Commonwealth installed vending machines to dispense Plan B, reportedly selling Plan B or one of its generic equivalents for between $7 and $15.
In May of 2023, Public Act No. 23-52 (“the Act”) passed in Connecticut, which similarly allows colleges and universities in the state to sell and dispense emergency contraceptives via vending machines, so long as they have obtained a permit to do so from the state. The Act also allows any business to obtain a permit to operate a vending machine for emergency contraceptives and other non-prescription drugs in an effort to expand their availability across a wide range of settings. The Act outlines important flexibilities for institutions and businesses seeking to install such vending machines, including allowing multiple vending machines on a single campus under one permit and an alternative permitting process for an operator who is not licensed as a pharmacy. The Act also includes several consumer protections provisions, such as a stipulation that the products inside the vending machine must not be subject to unsafe temperatures or humidity, a prohibition on other products or medications being sold in the same vending machine, and a number for consumers to call in case of product tampering or expiration.
Federal Law Considerations to Contraceptives in Vending Machines
FDA guidance confirms that the FDA does not prohibit the sale of over-the-counter drugs in vending machines, as long as the drugs comply with mandatory labeling requirements, stating:
The [Food, Drug, and Cosmetic] Act requires that certain mandatory labeling information must appear prominently, with such conspicuousness (as compared with other words, statements, designs or devices in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use. This means that the prospective purchaser must have an opportunity to read and take such information into consideration in reaching a decision whether or not to make the purchase. The vending machine should, therefore, bear a complete copy of the required labeling for the article being offered for sale, or the article should be displayed in such a manner that the mandatory labeling can be viewed by the prospective purchaser.
Colleges and universities rolling out Plan B vending machines must ensure these labeling requirements are met, including that a complete copy of the drug label is displayed on the vending machine so that purchasers have an opportunity to read it prior to making their purchase.
Other State Based Reproductive Health Protections
In addition to emergency contraception offered in vending machines, some states have enacted laws requiring medication abortion to be made available to college students. In Massachusetts, a bill passed in 2022 included a provision requiring student health services at all public universities and community colleges across the state to either dispense medication abortion pills or make referrals for such care. While this provision only applies to public institutions, efforts have been made from within private universities in the state to get medication abortion onto private campuses as well. In 2019, California was the first state to enact a law of this kind, requiring student health clinics at campuses of two large public university networks in the state (CSU and UC campuses) to offer medication abortion on campus starting January 1, 2023. In New York, Governor Kathy Hochul signed a bill on May 2, 2023, which similarly requires SUNY and CUNY campuses to offer prescriptions for medication abortion. The bill went into effect on August 1, 2023. Connecticut does not currently require public universities to offer medication abortion on campus, but does require public universities to establish, not later than January 1, 2024, and update as necessary, a reproductive health access plan, including abortion access, in place for students who need such services.
Implications of State-Level Bans on Reproductive Health Services
Laws protecting medication abortion and those permitting emergency contraception offered in vending machines stand in stark contrast to ongoing state-level bans and other restrictions on providing, or facilitating access to, reproductive health care services. Such restrictions have created a ripple effect outside the state of their adoption as some do not specify a geographic limit on liability, resulting in unpredictability for reproductive health care services that occur out-of-state.
Importantly, such state-level bans and other restrictions may distinguish abortion from contraception. For example, the Texas law restricting abortion expressly excludes birth control devices or oral contraceptives from the definition of abortion, and would not implicate the use of contraception, even if the law otherwise reached out-of-state abortions.
Such restrictions have also prompted a wave of proposed or enacted laws shielding patients and providers from out-of-state legal action, investigation, and liability. For example, one category of laws protects patient health records through prohibitions on their disclosure. Massachusetts prohibits courts within the Commonwealth from ordering an individual to produce documents or records for use in another state’s legal proceedings if they concern “legally-protected health care activity,” including reproductive health services. Laws in both Delaware and Connecticut prohibit the disclosure of health records related to reproductive health services in a civil proceeding, unless the patient or a representative expressly authorizes it. Notably, the U.S. Department of Health & Human Services released a Final Rule that amends the Health Insurance Portability and Accountability Act (HIPAA) to strengthen safeguards on reproductive health care information, which may overlap with or complement state laws in this category, but only with respect to information constituting Protected Health Information subject to HIPAA.
Colleges and universities should be aware of new avenues for making emergency contraception available to their students, given the overall legal uncertainty with respect to reproductive health care services. We will continue to monitor this and related legislation and its effects on campuses in Massachusetts and Connecticut.
*This post was co-authored by Ivy Miller, legal intern at Robinson+Cole. Ivy is not admitted to practice law.