Who foots the tab for the disposal of prescription drugs that aren’t (improperly) flushed down the drain or thrown into landfill? One California county believes that such costs should fall to drug companies. Armed with that belief, county officials passed an ordinance in 2012 requiring drug companies to pay for a drug-disposal program. Last month, the Ninth Circuit upheld Alameda County’s ordinance, which drug industry groups claimed was unconstitutional. The Safe Drug Disposal Ordinance at issue mandates that companies selling or distributing prescription drugs in Alameda County fund a program to ensure safe disposal of unused drugs. The goal is to remove unused and unwanted drugs from households without contaminating water supplies. Under the law, drug companies must establish drop-off stations for the disposal of unused drugs.
Three trade groups sued Alameda County, alleging that the ordinance violated the the dormant commerce clause. If you don’t remember, the dormant commerce clause prohibits states from passing legislation that improperly burdens or discriminates against interstate commerce. The trade groups alleged that the ordinance would constitute an economic burden in the magnitude of approximately $1 million per year for each drug company required to comply. Alameda County claimed this cost was exaggerated and argued that any burden would be minimal in comparison to the nearly $1 billion in drugs sales that occurred in their county each year.
The Ninth Circuit agreed with the county and unanimously held that the ordinance did not violate the dormant commerce clause. The court further held that the ordinance treats all manufacturers equally without respect to the geographic location of the manufacturer Finally, the court held that the plaintiffs presented no evidence that the ordinance would substantially burden the flow of interstate prescription drugs. In so doing, the court observed that the U.S. Supreme Court is “reluctant to invalidate regulations that touch upon safety.” As such, it upheld the district court’s dismissal of the case. In concluding the opinion, the court stated:
Opinions vary widely as to whether adoption of the Ordinance was a good idea. We leave that debate to other institutions and the public at large. We needed only to review the Ordinance and determine whether it violates the dormant Commerce Clause of the United States Constitution. We did; it does not.
The case is PRMA, et al. v. County of Alameda, et al., No. 13-16833 (9th Circuit Sept. 30, 2014).