Flushing Sound: Pharma Sues Over Take-Back Law

This was predictable. Less than six months after a California county voted unanimously to require drugmakers to pay for the disposal of unused and expired prescription medicines, the trade groups representing brand-name and generic drugmakers have filed a lawsuit that challenges the constitutionality of the ordinance.

The move by Alameda County had been closely watched by other local governments around the country, because it is the first of its kind in the US and comes after the pharmaceutical industry lobbied to defeat the effort over concerns that the costs of compliance would be prohibitively expensive.

In arguing their case, PhRMA, the Generic Pharmaceutical Association and the Biotechnology Industry Organization maintain that safe disposal of unwanted medicines is a shared responsbility and the ordinance unfairly requires drugmakers to develop, manage and fund disposal operations, according to the lawsuit, which was filed in federal court (here is the lawsuit).

The drugmakers are miffed that the ordinance forbids them from imposing any local point-of-sale fee to recoup the costs of the program, which they maintain violates the dormant commerce clause in the US Constitution. By allegedly "off-loading" the expense, they argue that their customers from other parts of the country will be forced to absorb the costs. In its statement, PhRMA makes a point of singling out seniors who will shoulder these costs.

“To the extent that Alameda County residents want a ‘state-of-the-art’ take back program, they should administer such an effort in the same manner as other municipal functions,” PhRMA senior vp Matt Bennett says in a statement. “Take-back programs require the meaningful involvement of local solid waste disposal and police functions and thus should be managed and operated by local government in order to achieve necessary efficiencies and ensure local officials are accountable to their communities for the operation and cost of the programs.”

As we reported previously, the Alameda County Board of Supervisors wants to reduce contaminants in drinking water and also lower the threat of drug abuse stemming from painkillers that linger in household medicine chests. But disposal costs can overwhelm local governments. Alameda County residents currently can drop off their medications at 28 different locations at a cost of about $330,000 annually, according to official estimates.

In requiring the pharmaceutical industry to pick up the tab, county officials pointed out that drugmakers make money from the sale of medicines and, therefore, should also have an obligation to help with appropriate disposal. "We feel the industry that profits from the sales of these products should have the financial responsibility for proper management and disposal," Miriam Gordon, California director of the Clean Water Action advocacy group, tells The New York Times.

During the debate over the ordinance, drugmakers had argued the safest and cheapest approved method for disposing of old medicines is to place them in a sealed container mixed with such substances as coffee grounds or kitty litter. But forwarding drugs to landfills can risk chemicals seeping into the watershed, according to those who supported the ordinance.

"It's just unfortunate that PhRMA would fight this because it would be pennies for them," Nathan Miley, the president of the Alameda County Board of Supervisors, tells The New York Times. "We will win legally and will win in the court of public opinion as well."

toilet pic thx to sustainable sanitation on flickr