County can make manufacturers pay for discarded drugs

Dr. Pam Gumbs works at United Pharmacy in Berkeley, a drugstore that already has a bin on site to dispose of unwanted or expired drugs. Dr. Pam Gumbs works at United Pharmacy in Berkeley, a drugstore that already has a bin on site to dispose of unwanted or expired drugs. Photo: Michael Macor, The Chronicle Photo: Michael Macor, The Chronicle Image 1 of / 4 Caption Close County can make manufacturers pay for discarded drugs 1 / 4 Back to Gallery

The U.S. Supreme Court rejected a challenge by the pharmaceutical industry Tuesday to an Alameda County law, the first of its kind in the nation, requiring drug manufacturers to pay the costs of disposing of consumers’ unused medications.

The action allows the county to move forward with the program and clears the way for similar ordinances elsewhere. San Francisco’s Board of Supervisors approved a drug-disposal measure in January but delayed implementation while the court considered the Alameda County case. San Mateo County is about to implement its own ordinance, and Santa Clara County is considering one. Washington state’s King County has required drug companies to pay cleanup costs since 2013.

“This was the last opportunity for the pharmaceutical industry to stop these kinds of programs,” which now will “begin to proliferate around the United States,” said Arthur Shartsis, a lawyer for Alameda County.

Drug companies have resisted paying for off-site disposal programs and have maintained that unneeded pills can be discarded safely at home.

After Tuesday’s court order, industry groups led by Pharmaceutical Research and Manufacturers of America said they would seek to “educate consumers on the appropriate use of medicines,” including “safe, secure and effective methods for disposal.”

Supporters of the Alameda County ordinance, including the Natural Resources Defense Council, city and county governments, and Attorney General Kamala Harris, say manufacturers should bear the cost of keeping discarded drugs out of landfills and waterways for the sake of the environment and their customers’ health.

The drug-disposal laws are part of a broader movement, begun in Europe more than 20 years ago, to “extend producer responsibility beyond the sale,” said Heidi Sanborn, executive director of the California Product Stewardship Council, an advocacy group.

Practice growing

The practice is now prevalent in South American nations as well as Mexico and Canada. Sanborn noted that other laws require manufacturers to pay disposal costs for such products as needles, batteries, paints and mattresses.

Alameda County has operated and paid for about 30 drop-off sites where consumers can discard their pills. In July 2012, county supervisors approved the law to require the industry to pay for pickup and disposal of unused prescription drugs sold in the county. It is in the process of being implemented.

Pharmaceutical companies, backed by trade associations and the U.S. Chamber of Commerce, argued that the ordinance illegally shifts local costs to out-of-state drug producers and interferes with interstate commerce. But the Ninth U.S. Circuit Court of Appeals in San Francisco upheld the Alameda County law in September, saying it treats all manufacturers equally, regardless of location, and imposes no substantial burden on interstate commerce.

“Given that the ordinance applies across the board, it does not discriminate at all,” said Judge N. Randy Smith in the 3-0 ruling.

The court said pharmaceutical companies collect $950 million a year in sales revenue in Alameda County and could comply with the ordinance at an annual cost of $1.2 million, by the companies’ estimate, or $330,000 by the county’s figures.

Price increases OKd

The ordinance allows manufacturers to pass their costs along by increasing prices, and Shartsis said they could recoup their expenses by charging Alameda County customers another penny, at most, for each $10 in sales.

In seeking Supreme Court review, drug manufacturers said that under the Ninth Circuit ruling, “virtually all interstate manufacturers can be converted into local collectors of unused products at the whim of local governments.” The Constitution, the companies argued, does not allow state or local governments to force multistate companies to establish local operations, like drug-disposal sites, “to enrich local residents at the expense of non-local businesses and consumers.”

The high court denied review of the case without comment.

The case is Pharmaceutical Research and Manufacturers of America vs. Alameda County, 14-751.

Bob Egelko is a San Francisco Chronicle staff writer. E-mail: begelko@sfchronicle.com Twitter: @egelko