On August 28, 2013 the U.S. District Court for the Northern District of California upheld the Alameda County Safe Drug Disposal Ordinance (“the Ordinance”), the first pharmaceutical extended producer responsibility law in the United States. Three pharmaceutical industry associations brought a dormant Commerce Clause challenge to the Ordinance, but the court held that the Ordinance treats all drug companies alike and does not discriminate against those located outside of the county. PhRMA filed an appeal on September 12, 2013 and last Friday, July 11, 2013, the U.S. Court of Appeals for the Ninth Circuit heard oral arguments.

During Friday’s oral arguments, counsel for PhRMA articulated how the Ordinance illegally shifts costs to interstate producers. Judge Smith questioned whether the Ordinance shifts the costs to all producers, not just interstate producers, and noted that the majority of industry producers happen to be located outside of California. Counsel for PhRMA added that the Ordinance would require pharmaceutical producers to become waste disposal experts and argued that the Ordinance places an unconstitutional burden on interstate commerce. Counsel for Alameda County responded that industry does not have to come into the county to establish its own program; rather they can subcontract this task to a company with experience running extended producer responsibility programs.