packAs an avid hiker in our National Parks, I am familiar with the saying “Pack It In, Pack It Out.” When it comes to minimizing our impact on Mother Nature, this slogan reminds us to carry out of the backcountry any food or other material we brought in with us.

Not only does this practice reduce litter and preserve natural beauty, but it also promotes personal responsibility. Following this ethic—and teaching it to our kids—leads hikers not to take more with them than they need, and it puts the onus for reducing and removing waste on the very people who created the waste in the first place.

Yet, when it comes to cleaning up prescription drugs and other unused medicines, elected officials in Alameda County (and elsewhere in California) seem to think that drug companies should do it for us. The U.S. Court of Appeals for the Ninth Circuit (in San Francisco) will hear oral arguments tomorrow in a challenge to Alameda County’s Safe Drug Disposal Ordinance (PhRMA vs. Alameda Co., California).

The lawsuit contests the ordinance’s constitutionality, not its wisdom as a policy matter. However, it’s important to recognize that if the Court strikes down this program as unconstitutional—as it will if it heeds WLF’s amicus brief—no one who cares about the problem of unused drugs should mind. Rather, such a ruling will clear the way for thinking about real solutions to the disposal challenge.

Alameda’s ordinance requires prescription drug manufacturers whose products enter Alameda County to establish programs (individually or jointly) to collect and safely dispose of all unused prescription medicines in the county. Local pharmacies are explicitly excluded from the producers who must contribute, and the producers are forbidden from charging a collection fee or imposing a fee on the sale of drugs in the county to cover these costs. In other words, the drafters of this ordinance went out of their way to ensure that the purchasers of the medicine (who generate the waste) do not have any responsibility to pay for its disposal.

What is the problem that this ordinance means to address? The county contends that improper prescription drug disposal poses unnecessary health risks like (1) contaminating drinking water (when flushed); (2) allowing diversion of drugs that contributes to prescription drug abuse; and (3) poisoning children who mistake colorful pills in the trash for candy. Let’s consider each of these concerns in turn.

Whether miniscule water-supply contamination by pharmaceuticals poses a genuine threat is something even the World Health Organization doubts. But skepticism aside, a drug take-back program cannot fix the supposed problem. Even if no medicines went unused, municipally treated water supplies would still contain tiny, barely detectable quantities of pharmaceuticals, because 90% or more of drugs pass through a patient before being flushed down the toilet. Less than 10% are flushed as leftovers.

What about the threat of diversion of drugs though—doesn’t that justify a mandatory take-back program? Considering that diversion is a form of theft, probably not. Drug abusers and other thieves are just as happy to steal medicine someone plans to use as they are to steal unused medicine. Consolidating unused medicine in one clean collection location might even increase the potential for diversion. It certainly increases the incentive for drug diverters to “Dumpster dive” when they know exactly where to look for what they seek.

The risk of ‘stockpiling’ presents a further opportunity for illegal diversion of unused drugs. Anyone who recycles plastic grocery bags or some other item that is not recycled at the curb will understand this problem. If you decide to participate in a take-back program, chances are that you will leave the unused medicine on your shelf a little bit longer—until you get around to turning it in. But the longer unused medicine stays on the shelf, the longer it is subject to diversion.

For much the same reason, drug take-back programs will not reduce child poisonings. Keeping extra medicines until you remember to turn them in may even increase accidental poisoning risks. To be careful, you can dispose of drugs at the bottom of a trash bag—or in a manner that hides them or otherwise makes it less likely that a child (or a would-be drug diverter) will see them in the trash. To prevent poisoning, it is best to safeguard all medicines, used and unused, and then dispose of unneeded drugs safely in the trash, where they will be taken to a landfill immediately.

Is there a role for industry then? A public education campaign would do more to address the purported problems than will the Safe Drug Disposal Ordinance. The consumer who is conscientious enough to bring old, expired or unused pharmaceuticals to a special receptacle for disposal would also be responsible enough to heed ads advising her not to flush unused drugs, to dispose of them right away, and to discard them out of children’s reach.

“Pack it in, pack it out” works because it reminds the person in the best position to reduce waste—the hiker—to do so. The same approach will work with unused medicine. What needs to change is not who is paying for drug disposal. The county ordinance essentially says “pack it in, and then expect Coleman® to come clean up your campsite.” That policy just shifts costs without actually solving the problem. What needs to change is that patients need to be better informed about what they need to do with their unused drugs and why it is important to dispose of them properly. As for the drug disposal ordinance, here’s hoping the Ninth Circuit tells it to take a hike.

Also published at WLF’s contributor page