Zyrtec-D and “Express” Consent

So I go to CVS with a stuffy nose, hoping to land something strong to clean it all out–some good shit, like Zyrtec-D. I know I’m going to have to run the regulatory gauntlet, but I need a hit. So I go.

When I get there, there’s a line three deep in front of me, and within minutes, three deep behind. Finally, I get to the counter.

Khawaja: Hi, I need some Zyrtec-D. That’s available behind the counter, right?

Pharmacist: Yes. I need to see your driver’s license.

Khawaja (handing it over): Here.

Pharmacist (scanning it): Thanks. I’ll go get it.

A few minutes pass.

Pharmacist: That’ll be $19.99. But first you’ll need to sign this agreement on the screen. Once you click “agree,” and sign it, you can pay.

I glance at the long agreement on-screen, browse through it without understanding it, look nervously over my shoulder at the line behind me, click “agree,” sign it, and hand over $20. 

Khawaja: OK. Um, do you have a printed-out version of the agreement I just signed?

I can attest from personal experience that the agreement I’ve just signed to buy a bottle of Zyrtec-D is more complicated than the waiver form I was offered during a recent police detention, requesting consent to search my car and premises.

Pharmacist (puzzled): But it was just on screen. You just signed it.

Khawaja: Right, but I want to go back and read what I just signed.

Pharmacist (still puzzled): OK, let me go back and ask my supervisor.

A few minutes pass.

Pharmacist: I’m sorry, but there are no printed-out versions of the agreement available.

Naturally, he doesn’t mean that they had a stash and ran out. He means that it was ridiculous to have expected anyone to ask for one in the first place.

Khawaja: Oh. Do you know if there’s a way to find a copy online?

Pharmacist (deeply puzzled): Um, no. I mean, basically, the agreement just summarizes legislation that regulates the dispensing of decongestants with pseudoephedrine to make sure you’re not doing anything illegal with it.

Khawaja: I know, I just wanted to see the actual formulations in the version I just signed. But don’t worry about it. Thanks. Bye.

Pharmacist: Oh, don’t forget your receipt. And your penny.

He hands over the receipt, along with my penny. The receipt, about 40 inches long,

  • totals the amount of pseudoephedrine I’ve bought this transaction (2.88 grams);
  • provides a “Trip Summary” (I saved $5.50 with my CVS Extra Care Card, a savings of about 22%);
  • provides information to get all offers and information available specifically for CVS Extra Care Card users;
  • thanks me for shopping 24 hours at CVS.COM;
  • informs me that my ExtraCard Card balances as of 12/21 are $8.98; and
  • provides seven coupons for items I don’t need, plus one coupon offering 30% off any single item, along with a $1.00 Extrabucks Reward.

Each coupon describes, in excruciating detail, the terms and conditions involved in the use of that coupon. Some of the statements are the same, some differ. Here is just one of seven or eight boilerplate legal statements on a single receipt, this one for “Neutrogena shampoo, conditioner, or hair styling products”:

ExtraCare card required. Excludes alcohol, prescriptions, milk, lottery, money order, giftcard, postage stamps, taxes, pre-paid cards, other fees, pseudoephedrine [go figure], deposits, and local exclusions. No cash back. Tax charged on pre-coupon price where required +CRV on beverages where applicable. Bearer assumes all sales/use tax liability. Not valid in speciality centers within CVS.

Because who knows what liability might arise from a dispute over a shampoo coupon? As for a print-out of the legally binding form I just signed, the one that threatens jail time for violation? Forget it. “Not available.” It’s not among CVS’s FAQs, or Zyrtec’s, either. Priorities!

A bit of online searching produced some interesting links on the subject (here, herehere, and here), but none (so far) with a verbatim version of the agreement I signed. Indeed, neither the FDA’s summary of the relevant legislation nor the text of New Jersey’s statute so much as mentions the duty to sign an agreement, much less provides the text of the agreement itself. I’m sure it’s out there somewhere; the challenge is finding it. I guess it’s just obvious to all relevant parties–pharmacies, lawmakers, law enforcement–that you can expect people to agree to complex legal provisions without their bothering to read what they’re agreeing to. I mean, it works for credit card and rental agreements, right? So why not here?

Time to haul Locke into this:

There is a common distinction of an express and a tacit consent, which will concern our present case. Nobody doubts but an express consent, of any man, entering into any society, makes him a perfect member of that society, a subject of that society (John Locke, Second Treatise, sect. 119.8-10).

It probably wouldn’t have occurred to Locke that twenty-first century America would give rise to a distinction not just between express and tacit consent, but between two kinds of express consent–the explicit kind and the expediently quick kind.  Nor would it have occurred to him that a single act might simultaneously exemplify both kinds of consent, each nullifying the other. But luckily, it’s occurred to us. Right?

Right. Turns out I don’t really need Zyrtec-D: DayQuil will do. Luckily, I still have my receipt: “Returns with receipt, subject to CVS Return Policy, thru 03/16/2018.” The Return Policy, of course, is online.

Welcome to America, where the consumer may be king, but the citizen remains a subject.

One thought on “Zyrtec-D and “Express” Consent

  1. Pingback: Somebody Get Me a Shot: Further Adventures at My Half-Assed Pharmacy | Policy of Truth

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