Laws in nine states prohibit the sale of merchandise at prices below cost. And that means Wal-Mart can’t sell some generic drugs for $4 in those states.

Maine has such a law, but it’s not clear whether that law forbids Wal-Mart to sell prescriptions below cost.

Maine’s “Unfair Sales Act” is in effect, said Charles Dow of the Maine Attorney General’s Office. It prohibits below-cost pricing for the purpose of driving out competition, Dow said.

Unless it receives complaints with merit, no action is planned to look into whether Wal-Mart is violating that law, Dow said.

A Wal-Mart spokesman indicated it is not operating illegally, saying the retail giant abides by laws wherever it does business. And the retailer is not selling prescriptions below cost, insisted spokesman Kevin Gardner.

But a lawyer for the National Community Pharmacists Association says Wal-Mart is selling below cost. Wal-Mart rolled out its $4 generic prescription program last in states with so-called “predatory pricing” laws, said the association’s John Rector.

“My guess is Wal-Mart probably is getting a good price” from drug makers, Rector said. Included in the cost are pharmacists’ salaries, which often are $100,000 a year, he said.

Supposing Wal-Mart paid $1 for the product, its average cost – including the pharmacist’s salary – to dispense the prescription is between $9 and $11, Rector said.

What’s wrong with Wal-Mart selling prescriptions below cost, he said, is that it could drive out pharmacies that can’t sell at a loss. In the short-term, consumers will save, Rector said.

But historically, after a monopoly is created, prices go up, he said. “These laws are there to keep prices more fair for consumers in the long-run.”

The nine states with pricing laws are Colorado, California, Hawaii, Minnesota, Montana, Pennsylvania, Tennessee, Wisconsin and Wyoming. In those states, 55 of the 331 generic prescriptions are sold for more than $4, according to Wal-Mart. Published reports say those drugs are sold for $9.

“In those states we are forced to sell certain items above $4,” Gardner said in a written statement. “Regardless, none of the drugs in Wal-Mart’s $4 generic drug program are being sold below Wal-Mart’s cost.”

Wal-Mart said its $4 prescriptions are popular with customers. “It’s receiving an amazing amount of positive feedback from millions of seniors, working families and uninsured who are already taking advantage of the program,” President Lee Scott said in a written statement.

“We’ve added more medicines to our program so we can extend these significant savings to even more Americans,” Scott said. The $4 generics represent 14 of the top 20 prescribed medications in the country, Wal-Mart said.

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