Pharmaceutical Industry Says California Drug Take-Back Bill is Unconstitutional

Date: April 15, 2013

Source: News Room

Pharmaceutical industry groups are fighting legislation in California that would require manufacturers to establish drug take-back programs. They argue that the measure would violate the Commerce Clause of the Constitution by imposing costs on out-of-state companies and that the bill (SB 727) adds unnecessary costs to consumers that could lead to spikes in prescription drug prices. They worry that the state measure, which duplicates an Alameda County ordinance passed last year, sets a dangerous precedent and may conflict with upcoming federal rules on disposal of pharmaceuticals.

The California legislation, SB 727, introduced by Sen. Hannah-Beth Jackson (D), would require a pharmaceutical producer, either individually or through a stewardship organization, to submit a plan by Jan. 1, 2015, to the state Department of Resources, Recycling & Recovery (CalRecycle) on the development of a program to collect, transport and process home-generated pharmaceutical drugs. The bill would prohibit by Jan. 1, 2015, a pharmaceutical producer from selling or distributing the pharmaceutical in the state unless it is included in a product stewardship plan approved by CalRecycle.

At issue is whether the state should require companies to establish an "extended producer responsibility" (EPR) program for unused pharmaceuticals. EPR is a mandatory type of product stewardship that requires producers, rather than the public sector, to be responsible for their product and its packaging even after consumers are finished with the product.

A coalition of environmentalists, local governments and wastewater treatment plants say a single, statewide pharmaceutical take-back program would be more feasible than a patchwork of varying local ordinances throughout the state. Ironically, that is the same argument employed by industry which favors a federal program over state by state legislation.

Moreover, industry downplays the amount of medicines that enter wastewater through improper disposal down the drain or flushing, as opposed to normal bodily excretion and disputes environmental impacts of pharmaceuticals in wastewater. According to a recent blog, the California Manufacturers & Technology Association (CMTA) argues that the bill "appears to be a program in search of a problem and will mean added bureaucracy and additional costs to the consumer."

Sign up to receive our free Weekly News Bulletin