In a rebuke to the pharmaceutical industry, a federal judge has dismissed a lawsuit that charged a California county acted inappropriately last year by passing an ordinance that requires drugmakers and biotechs to cover the cost of a prescription drug ‘take back,’ or disposal program.
The tussle over the Alameda County ordinance has 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.
As reported previously, the county wants to reduce contaminants in drinking water and 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.
But in its lawsuit, the PhRMA trade group maintained that safe disposal of unwanted medicines is a shared responsibility and the ordinance unfairly requires drugmakers to develop, manage and fund disposal operations (here is the lawsuit). Failure to comply carries up to a $1,000 per day fine (here is the ordinance).
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. PhRMA made a point of singling out seniors who will shoulder these costs.
In his order, however, US District Court Judge Richard Seeborg ruled that the ordinance does not discriminate against out-of-state companies and “does not otherwise impermissibly burden interstate commerce.”
“…The ordinance here neither purports to regulate interstate commerce nor does so as a practical matter. The ordinance applies to producers who elect to sell their products within Alameda County, regardless of where the producers are based or the product originates (here is the ruling).
“Nothing in the ordinance targets producers on the basis of their location,” he wrote. “They are being required to participate in providing take-back programs because they sell prescription drugs in the county, not because they are out-of-state actors.
“…Defendants have adequately shown that the ordinance serves a legitimate public health and safety interest, and that the relatively modest compliance costs producers will incur, should they choose to sell their products in the county, do not unduly burden interstate commerce.”
In response, Alameda County counsel Donna Ziegler told The San Jose Mercury News that "the county did not take this step lightly. There are a lot of issues with unwanted prescription drugs out there. ... As the court found, it's a public health and safety concern."
“A lot of counties are watching and may follow suit in light of what's happening here," she added. “The only resolution that would be satisfactory to them was that we didn't pass an ordinance at all. Their response was consistently, 'Don't do anything. Don't pass an ordinance or we'll sue you.' That's how we ended up here."
We asked PhRMA for comment and will update you accordingly.
STORY ENDS HERE
toilet pic thx to sustainable sanitation on flickr