Pharmaceutical Companies File Lawsuit Against County's Drug Take-Back Ordinance

By Bay City News

Pharmaceutical and biotechnology groups filed a lawsuit on Friday which challenges an Alameda County ordinance requiring drug makers to pay for programs to dispose of expired and unused drugs.

Passed by a unanimous vote of the Alameda County Board of Supervisors on July 24, the ordinance is the first such law in the country.

The suit, filed in the U.S. District Court for the Northern District of California, alleges that the ordinance violates the commerce clause in the U.S. Constitution for three reasons, including that it regulates and burdens interstate commerce and its main purpose and effect is to shift the costs of a local regulatory program directly onto interstate commerce and out-of-county customers.

It says the ordinance also discriminates against interstate commerce by targeting such commerce and products delivered from outside the
county for burdens and by favoring local interests "by deliberately shifting
costs away from local consumers and taxpayers and onto drug manufacturers and pharmaceutical customers nationwide."

The suit alleges, "If this novel ordinance were permissible, then Alameda County could likewise require interstate news publications to conduct the county's paper recycling program or require interstate food producers to collect and dispose of all spoiled food or similar garbage."

The suit asks that the ordinance be declared unconstitutional and that its implementation be stopped. It also asks for unspecified costs and attorneys' fees.

The suit was filed by the Pharmaceutical Research and Manufacturers of America, the Generic Pharmaceutical Association and the Biotechnology Industry Organization. All three industry groups are based in Washington, D.C.

When the ordinance was passed, Board of Supervisors President Nate Miley said it is needed because the improper and careless disposal of prescription drugs and the illegal resale of prescription drugs puts members of the public, particularly children and the elderly, at risk of being poisoned.

In passing the measure, the board said another reason for the ordinance is that groundwater and drinking water "are being contaminated by unwanted, leftover or expired prescription drugs passing through our wastewater and treatment centers."

The ordinance requires drug manufacturers and producers to pay for the disposal of their products or face fines of up to $1,000 per day.

Alameda County residents currently can drop off their old medications at 28 drop-off locations but the program costs the county about $330,000 a year.

If the lawsuit is unsuccessful, companies affected by the ordinance have until next July, one year after it passed, to submit their plans to comply.