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Pharma Companies to Pay for Rx Disposal After SCOTUS Denies Cert

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By Casey C. Sullivan, Esq. on May 29, 2015 10:55 AM

Alameda County's drug disposal law, which required pharmaceutical companies to pay for the disposal of unused medicine, has survived an attempted Supreme Court challenge. The High Court refused to hear a challenge to the Ninth Circuit's decision upholding the county law, which applies to much of Northern California's East Bay area.

The law was modeled on similar laws regulating the disposal of batteries, electronics and other potentially harmful trash. Under Alameda's law, drug companies must pay to collect expired prescriptions and cannot charge customers for the disposal. A one day drug take-back event in Alameda resulted in the collection of almost 800 pounds of pills, according to the Star Tribune.

Prescription for a Sick Bay

Alameda's law was passed out of concern that improper disposal of prescription drugs were contaminating the Bay and providing easy access to prescription medication for drug abusers. Abusers could easily collect trashed pills, while prescriptions that were flushed down the toilet or ended up in landfills made their way to into the Bay's water.

That's right; the fish in the Bay are swimming in, and absorbing, residents' disposed antidepressants, chemo medication, and even antihistamines. That can cause severe ecological impacts, such as leading to mutations, and put human health at risk, according to one case study.

Ninth Gets it Right On Dormant Commerce Clause

The law requires manufacturers to set up disposal kiosks throughout the county and to engage in educational and outreach programs about drug disposal. Pharmaceutical groups challenged the plan, arguing that it violated the Dormant Commerce Clause. The Dormant Commerce Clause limits states' ability to regulate interstate commerce if such regulation would impinge on Congress's constitutional role.

The Ninth Circuit rejected that argument. Applying the test established in Pike v. Bruce Church, the court found that the law did not substantially burden interstate commerce. In fact, there was no evidence that the law would affect the interstate flow of goods. The Ninth Circuit also emphasized the environmental and health benefits of the law. Regulations promoting safety are the least likely to be struck down under the Dormant Commerce Clause.

With the Supreme Court rejecting the pharmaceutical industry's petition for cert, the law has now overcome its last major legal challenge. The program is expected to be fully enacted in Alameda County within the next three years. Many other localities may enact similar ordinances as well. San Francisco, for example, has passed a similar law, but has withheld enacting it while Alameda's legal challenges played out.

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