Ninth Circuit: City’s Pioneering Drug-Disposal Ordinance Does Not Violate Commerce Clause

If your medicine cabinet is filled with old prescriptions and other medications that you no longer want or can use, you might have asked: how and where should I get rid of these? Pills

Local governments are beginning to provide an answer. Old medications are not only misused, they also pose dangers for the environment. Flushing pills or putting them in the trash can contaminate drinking water and cause other environmental problems.

But disposal programs can be expensive. What’s a local government to do?

Alameda County, California, devised a solution. It passed a Safe Drug Disposal Ordinance that requires any prescription drug producer who sells, offers for sale, or distributes drugs in the County to participate in a program to collect and dispose of the County’s unwanted drugs.

Manufacturers and distributors objected, however. They claimed that requiring them to pay for the program violates the dormant Commerce Clause because it discriminates against or directly regulates interstate commerce. Are they right?

On Tuesday, the Ninth Circuit said that the program does not violate the Commerce Clause.

The court ruled that the ordinance does not discriminate against interstate commerce because the ordinance “both on its face and in effect, applies to all manufacturers that make their drugs available in Alameda County—without respect to the geographic location of the manufacturer.” The court explained that an ordinance that applies across-the-board “provides no geographic advantages.” The court also rejected the view that the ordinance impermissibly shifts costs to counties and states outside of Alameda so that there could be no check through the Alameda political process. The court noted that the ordinance would also require Alameda residents to pay more for their drugs.

The court also ruled that the ordinance does not directly regulate interstate commerce, by controlling conduct beyond the county’s borders. Among other things, the court noted that the County may regulate a business whose only connection to the County is interstate commerce:

[T]here is nothing unusual or unconstitutional per se about a state or county regulating the in-state conduct of an out-of-state entity when the out-of-state entity chooses to engage the state or county through interstate commerce.

Finally, the court ruled that the ordinance does not impose burdens that are clearly excessive in relation to its putative benefits under the test of Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Because the court could find no evidence that the ordinance would affect the interstate “flow of goods,” it could not conclude that the ordinance would substantially burden interstate commerce. It noted that the challengers had stipulated to the program’s benefits, that legislative determinations about safety are entitled to a strong presumption of validity, and that the fact that the County could run a program at its own expense would not nullify the program’s benefits.

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