Last week, the United States Supreme Court denied industry’s petition for certiorari in Pharmaceutical Research and Manufacturers of America (PhRMA), et al. v. County of Alameda. The petitioners contended that Alameda’s Safe Drug Disposal Ordinance violated the dormant commerce clause by requiring pharmaceutical companies to finance a drug take-back program. The impact of the Court’s denial—which lets stand a Ninth Circuit ruling upholding the ordinance—will be widespread, both for the pharmaceutical industry, and more broadly, for extended producer responsibility (EPR) laws and ordinances across the country.
Four counties—and counting—have pharmaceutical EPR ordinances. While King County’s program has moved ahead, industry will now need to turn its compliance efforts to San Francisco, San Mateo, as well as Alameda counties. With Alameda’s Safe Drug Disposal Ordinance viewed as a model program, other counties and states across the nation waited for the Court to open the floodgates. The gates are open – which counties will be next? While more counties in California are expected to get on board, other counties or states with the leading number of EPR laws—Vermont, Maine, Connecticut, Maryland, Minnesota and Rhode Island—could follow closely behind. State-level programs, while increasing the regulatory breadth for industry, will help level the playing field, simplifying compliance obligations. Will these be the next wave?