Landmark Drug Dumping Appeal Hearing

On Monday, Alameda County will defend in a federal appeals court the constitutionality of its landmark law shifting responsibility to dispose of local unused prescription drugs to the pharmaceutical companies that make them.

The 9th U.S. Circuit Court of Appeals will hear arguments in San Francisco by the Pharmaceutical Research and Manufacturers of America in its effort to overturn  Alameda’s 2012 “Safe Drug Disposal Ordinance,” which was upheld last year by U.S. District Judge Richard Seeborg.

The law, the first of its kind in the nation, is opposed by the pharmaceutical industry, the U.S. Chamber of Commerce and the conservative Washington Legal Foundation.

The law requires any prescription drug producer that may have any product distributed in AlamedaCounty to collect and safely dispose of all the county’s unused prescription medicines.

The appeal contends the law violates the Constitution’s commerce clause by allowing a local law to regulate interstate commerce.

The law exempts local pharmacies and consumers from those responsibilities.

The pharmaceutical industry believes in-home disposal of unwanted prescription drugs in the trash is an environmentally preferable means of getting rid of the drugs and minimizes the potential dangers of theft from collections at kiosks or bins.

But the county argues this shift of responsibility is no different than state health law that regulates extended producer responsibility by shifting costs of products’ end-of-life management from local government to the producer.

The county argued in papers to the 9th Circuit, “Alameda demonstrated that the ordinance is constitutional because it is not protectionist, does not discriminate in favor of in-county competitors against substantially similar out-of-county competitors, does not act like a tariff, does not require any conduct outside of the county, does not directly regulate interstate commerce and will not inhibit the flow of commerce.”

Seeborg agreed with Alameda in August 2013 and upheld the law, setting the stage for the appeal.

Groups like the Chamber and Washington Legal Foundation have said if the law is permitted it could lead to wider transfer of local disposal costs to other industry groups.

The panel hearing the case will be Judge N. Randy Smith, a Republican appointee of President George W. Bush and Judge Morgan Christen, a Democrat appointee of President Barack Obama.  The third is Judge Lawrence Piersol, a visiting judge from South Dakota, named to the federal bench in 1993 by President Bill Clinton.

Case: Pharmaceutical Research and Manufactures of Am. v. AlamedaCounty, No. 13-16833

Plaintiffs’ brief here.




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