U.S. Court of Appeals for the Ninth Circuit

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Ninth Circuit declines review of local drug disposal ordinance

September 30, 2014

The Ninth Circuit determined that the Alameda County Safe Drug Disposal Ordinance does not violate the dormant Commerce Clause of the U.S. Constitution. The decision of the lower court is affirmed.

U.S. Chamber files amicus brief

November 22, 2013

The Chamber urged the Ninth Circuit to reverse the district court’s judgment and declare Alameda County’s Safe Drug Disposal Ordinance unconstitutional. The Ordinance requires out-of-state manufacturers of prescription drugs to fund and operate, under County supervision, a “take-back” program for any unused prescription drugs they manufacture that are “sold or distributed” in Alameda County. The Ordinance applies even if the sale or distribution does not occur by the manufacturer itself; thus, if a manufacturer sells to a wholesaler, a mail-order pharmacy service, or a national retail chain—in an entirely out-of-state transaction—but the wholesaler, mail-order service, or retail chain later distributes even one pill of a covered drug within the County, the manufacturer must participate in and fund the take-back program. NCLC argued in its brief that the Ordinance violates the dormant Commerce Clause because it purports to directly control and regulate commerce occurring wholly outside the County’s boundaries. By affirming the County’s authority to regulate such conduct, the district court’s order violates core federalism principles by permitting one county to visit local encumbrances on commercial and distribution activities that are national in scope.

Fred A. Rowley, Jr. and Ellen M. Richmond of Munger, Tolles & Olson LLP represented the U.S Chamber of Commerce as co-counsel to National Chamber Litigation Center.

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