National Ass'n of Optometrists & Opticians v. Harris , 682 F.3d 1144 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL ASSOCIATION OF 
OPTOMETRISTS & OPTICIANS;
LENSCRAFTERS, INC.; EYE CARE
CENTERS OF AMERICA, INC.,
No. 10-16233
Plaintiffs-Appellants,
D.C. No.
v.
 2:02-cv-01464-
KAMALA D. HARRIS, Attorney LKK-DAD
General; DENISE BROWN, Case
OPINION
Manager, in his official capacity
as Director of the Department of
Consumer Affairs,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted
January 23, 2012—Pasadena, California
Filed June 13, 2012
Before: Procter Hug, Jr., Richard A. Paez, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Hug
6697
6700 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
COUNSEL
Lois A. Schechter, Morrison & Foerster LLP, San Francisco,
California, Deanne E. Maynard, Morrison & Foerster LLP,
Washington, D.C., for the appellants.
Sherry L. Ledakis, Deputy Attorney General, San Diego, Cal-
ifornia, for the appellees.
OPINION
HUG, Senior Circuit Judge:
I. INTRODUCTION
This case concerns the constitutionality of certain Califor-
nia statutes and regulations. These statutes and regulations
prohibit licensed opticians1 from offering prescription eye-
1
Individuals and optical companies, such as LensCrafters, Inc., that fill
prescriptions and perform related services in selling eyewear, fit within the
NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6701
wear at the same location in which eye examinations are pro-
vided and from advertising that eyewear and eye examina-
tions are available in the same location. The National
Association of Optometrists and Opticians, LensCrafters, Inc.,
and Eye Care Centers of America, Inc. (collectively “Plain-
tiffs”) maintain that these California statutes and regulations
violate the dormant Commerce Clause.2 On remand from this
Court, Plaintiffs filed a motion for summary judgment, con-
tending that the statutes and regulations place a burden on
interstate commerce that excessively outweighs the local ben-
efits of the law. California’s Attorney General and Depart-
ment of Consumer Affairs (collectively “the State”) filed a
cross-motion for summary judgment. The district court denied
Plaintiffs’ motion for summary judgment and granted the
State’s motion for summary judgment. Plaintiffs timely
appealed. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs filed a complaint alleging that California’s Busi-
ness & Professions Code sections 655, 2556 and 3103, and
two companion regulations, 16 Cal. Code of Regs, Title 16
sections 1399.251 and 1514 (collectively “challenged laws”)
violate the dormant Commerce Clause. Plaintiffs challenge
these laws to the extent they prohibit opticians and optical
companies from offering prescription eyewear at the same
location in which eye examinations are provided and from
advertising that eyewear and eye examinations are available
in the same location. Section 655 prohibits opticians and opti-
definition of “dispensing opticians” under California law. See Cal. Bus. &
Prof. Code § 2550. We will refer to these “dispensing opticians” simply
as “opticians” or “optical companies” in this opinion.
2
LenCrafters, Inc. is incorporated in Ohio and owns and operates retail
stores in California. Eye Care Centers of America, Inc. is a Texas corpora-
tion that owns and operates retail stores in California. These California
stores employ opticians and sell eyewear.
6702 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
cal companies from having “any membership, proprietary
interest, co-ownership, landlord-tenant relationship, or any
profitsharing arrangement in any form, directly or indirectly”
with ophthalmologists or optometrists.3 Cal. Bus. & Prof.
Code § 655. Section 2556 prohibits optical companies from
furnishing, employing, or maintaining optometrists and oph-
thalmologists on their premises. Cal. Bus. & Prof. Code
§ 2556. In addition, opticians may not advertise the services
of optometrists or ophthalmologists. Cal. Bus. & Prof. Code
§ 3103; Cal. Code Regs. tit. 16, §§ 1399.251, 1514.
Plaintiffs challenged these California laws primarily
because optometrists and ophthalmologists may set up a prac-
tice where patients may receive both eye examinations and
prescription eyewear, but opticians may offer only the sale of
eyewear, not eye examinations, and therefore are unable to
offer the convenience of “one-stop shopping” in California.
The restrictions on one-stop shopping apply to all opticians
and optical companies when they sell eyewear in California,
regardless of whether their stores are entirely owned by Cali-
fornia entities or are owned by companies incorporated out-
side of California.
Plaintiffs moved for summary judgment, and the State
opposed the motion. The district court granted Plaintiffs’
motion for summary judgment on the grounds that the chal-
lenged laws discriminate against interstate commerce and that
the State failed to provide sufficient evidence that there are no
other means to address its legitimate interest in protecting
public health. Nat’l Ass’n of Optometrists & Opticians v.
Lockyer, 463 F. Supp. 2d 1116 (E.D. Cal. 2006). The State
appealed.
3
Optometrists and ophthalmologists are health care providers who have
met specified educational requirements and must comply with certain ethi-
cal and professional responsibilities. See Nat’l Ass’n of Optometrists &
Opticians v. Brown, 567 F.3d 521, 526-27 (9th Cir. 2009). Many optome-
trists and ophthalmologists sell eyewear to their patients. Id. at 527.
NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6703
We reversed, holding that the challenged laws were not dis-
criminatory on their face, in their purpose, or in their effect.4
See Nat’l Ass’n of Optometrists & Opticians v. Brown, 567
F.3d 521, 524-28 (9th Cir. 2009). Although we concluded that
the challenged laws were not discriminatory, we recognized
that this holding was not necessarily the end of the dormant
Commerce Clause analysis and remanded to the district court
to determine whether the challenged laws violate the dormant
Commerce Clause even though they are not discriminatory.
Id. at 528.
On remand, the parties filed cross-motions for summary
judgment. The district court denied Plaintiffs’ motion for
summary judgment and granted the State’s motion for sum-
mary judgment. Nat’l Ass’n of Optometrists & Opticians v.
Brown, 709 F. Supp. 2d 968 (E.D. Cal. 2010). The court
effectively concluded that, based on the facts and the law,
there were no genuine issues of material fact. Plaintiffs argued
that the challenged laws impermissibly burdened interstate
commerce because: 1) the challenged laws preclude an inter-
state company from offering one-stop shopping, which is the
dominant form of eyewear retailing; and 2) interstate firms
would incur a great financial loss as a result of the challenged
laws. Id. at 974-78. The district court concluded that it need
not consider the evidence supporting these theories because
both theories failed as a matter of law. Id. In reaching this
conclusion, the court reasoned that, because there was no cog-
nizable burden on interstate commerce, it need not attempt to
balance the “non-burden” against the putative local interests
under the test derived from Pike v. Bruce Church, Inc., 397
U.S. 137, 142 (1970). Id. at 975. Plaintiffs timely appealed,
and that appeal is now before us.
4
In our opinion, we concluded that these laws are “designed to prevent
health care providers from being unduly affected by commercial inter-
ests.” 567 F.3d at 526. We did not reach the issue of whether these laws
were successful in achieving the State’s goals.
6704 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
III. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
novo. Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th
Cir. 2001). Therefore, our review is governed by the same
standard used by the district court under Federal Rule of Civil
Procedure 56(a). Id. Rule 56(a) provides that a court “shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is enti-
tled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The substantive law determines which facts are material; only
disputes over facts that might affect the outcome of the suit
under the governing law properly preclude the entry of sum-
mary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). We may affirm a grant of summary judg-
ment on any ground supported by the record. Video Software
Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 956 (9th Cir.
2009).
IV. ANALYSIS
A. The Dormant Commerce Clause and Pike
[1] An understanding of Pike and of the purpose and scope
of the dormant Commerce Clause informs our determination
of whether, as a matter of law, Plaintiffs have provided suffi-
cient evidence of a violation of the dormant Commerce
Clause. “Although the Commerce Clause is by its text an
affirmative grant of power to Congress to regulate interstate
and foreign commerce, the Clause has long been recognized
as a self-executing limitation on the power of the States to
enact laws imposing substantial burdens on such commerce.”
South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87
(1984); see also Oregon Waste Sys., Inc. v. Dep’t of Envtl.
Quality of State of Or., 511 U.S. 93, 98 (1994) (“Though
phrased as a grant of regulatory power to Congress, the
Clause has long been understood to have a ‘negative’ aspect
that denies the States the power unjustifiably to discriminate
NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6705
against or burden the interstate flow of articles of com-
merce.”). This limitation on state power has come to be
known as the dormant Commerce Clause. See Dep’t of Reve-
nue v. Davis, 553 U.S. 328, 337 (2008).
Modern dormant Commerce Clause jurisprudence primar-
ily “is driven by concern about economic protectionism—that
is, regulatory measures designed to benefit in-state economic
interests by burdening out-of-state competitors.” Id. at 337-38(internal quotation marks and citations omitted). “The princi-
pal objects of dormant Commerce Clause scrutiny are statutes
that discriminate against interstate commerce.” CTS Corp. v.
Dynamics Corp. of Am., 481 U.S. 69, 87 (1987). “The central
rationale for the rule against discrimination is to prohibit state
or municipal laws whose object is local economic protection-
ism,” because these are the “laws that would excite those jeal-
ousies and retaliatory measures the Constitution was designed
to prevent.” C & A Carbone, Inc. v. Town of Clarkstown, 511
U.S. 383, 390 (1994). Thus, a corollary concern of the dor-
mant Commerce Clause is that “this Nation is a common mar-
ket in which state lines cannot be made barriers to the free
flow of both raw materials and finished goods.” Hughes v.
Alexandria Scrap Corp., 426 U.S. 794, 803 (1976).
[2] Given the purposes of the dormant Commerce Clause,
it is not surprising that a state regulation does not become vul-
nerable to invalidation under the dormant Commerce Clause
merely because it affects interstate commerce. See S. Pac. Co.
v. State of Ariz., 325 U.S. 761, 767 (1945). A critical require-
ment for proving a violation of the dormant Commerce
Clause is that there must be a substantial burden on interstate
commerce. See South-Central Timber Dev., 467 U.S. at 87.
Most regulations that run afoul of the dormant Commerce
Clause do so because of discrimination, but in a small number
of dormant Commerce Clause cases courts also have invali-
dated statutes that imposed other significant burdens on inter-
state commerce. Gen. Motors Corp. v. Tracy, 519 U.S. 278,
298 n.12 (1997). These other significant burdens on interstate
6706 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
commerce generally result from inconsistent regulation of
activities that are inherently national or require a uniform sys-
tem of regulation. Id.; CTS Corp., 481 U.S. at 88; see also
Exxon Corp. v. Governor of Md., 437 U.S. 117, 128 (1978)
(recognizing that, on rare occasions, the Supreme Court has
held that the Commerce Clause precludes state regulation in
a particular field because “a lack of national uniformity would
impede the flow of interstate goods”). A classic example of
this type of regulation is one that imposes significant burdens
on interstate transportation. See Tracy, 519 U.S. at 298 n.12;
CTS Corp., 481 U.S. at 88.
Although dormant Commerce Clause jurisprudence pro-
tects against burdens on interstate commerce, it also respects
federalism by protecting local autonomy. Davis, 553 U.S. at
338. Thus, the Supreme Court has recognized that “under our
constitutional scheme the States retain broad power to legis-
late protection for their citizens in matters of local concern
such as public health” and has held that “not every exercise
of local power is invalid merely because it affects in some
way the flow of commerce between the States.” Great Atl. &
Pac. Tea Co. v. Cottrell, 424 U.S. 366, 371 (1976) (internal
quotations and citations omitted); see also Huron Portland
Cement Co. v. City of Detroit, 362 U.S. 440, 443-44 (1960)
(recognizing that the Constitution “never intended to cut the
States off from legislating on all subjects relating to the
health, life, and safety of their citizens, though the legislation
might indirectly affect the commerce of the country”); H. P.
Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 535 (1949)
(noting that the Supreme Court generally has supported the
rights of states to “impose even burdensome regulations in the
interest of local health and safety”).
In a long line of dormant Commerce Clause cases, the
Supreme Court has sought to reconcile these competing inter-
ests of local autonomy and burdens on interstate commerce.
In one of those cases, Pike v. Bruce Church, Inc., the Supreme
NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6707
Court set forth the following summary of dormant Commerce
Clause law, stating:
Although the criteria for determining the validity of
state statutes affecting interstate commerce have
been variously stated, the general rule that emerges
can be phrased as follows: Where the statute regu-
lates even-handedly to effectuate a legitimate local
public interest, and its effects on interstate commerce
are only incidental, it will be upheld unless the bur-
den imposed on such commerce is clearly excessive
in relation to the putative local benefits. If a legiti-
mate local purpose is found, then the question
becomes one of degree. And the extent of the burden
that will be tolerated will of course depend on the
nature of the local interest involved, and on whether
it could be promoted as well with a lesser impact on
interstate activities.
Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (citation
omitted).
Unfortunately, the Pike test has not turned out to be easy
to apply. As the Supreme Court has acknowledged, there is
“no clear line” in Supreme Court cases between cases involv-
ing discrimination and cases subject to Pike’s “clearly exces-
sive” burden test. See Tracy, 519 U.S. at 298 n.12. Justice
Scalia has candidly observed that “once one gets beyond
facial discrimination our negative-Commerce-Clause jurispru-
dence becomes (and long has been) a quagmire.” W. Lynn
Creamery, Inc. v. Healy, 512 U.S. 186, 210 (1994) (Scalia, J.,
concurring) (internal quotation marks omitted).
Much of the confusion stems from the fact that Pike does
not define the term “even-handedly” and combines the test for
discriminatory laws with the test for non-discriminatory laws.
The cases therefore are not clear or consistent in terms of
when a regulation is considered discriminatory and virtually
6708 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
per se invalid and when and how a regulation is subjected to
Pike’s “clearly excessive” burden test.5 In Tracy, the Supreme
Court recognized that a number of its cases purporting to
apply the Pike undue burden balancing test really turned on
the discriminatory character of the challenged regulations.
Tracy, 519 U.S. at 298 n.12. According to the Supreme Court,
only a small number of its cases invalidating laws under the
dormant Commerce Clause have involved laws that were
“genuinely nondiscriminatory, in the sense that they did not
impose disparate treatment on similarly situated in-state and
out-of-state interests.” Id.[3] In the instant case, we previously held that the chal-
lenged laws are not discriminatory on their face, in their pur-
pose, or in their effect. See Nat’l Ass’n of Optometrists, 567
F.3d at 524-28. Nevertheless, because it is possible for non-
discriminatory regulations to place a significant burden on
interstate commerce and thereby violate the dormant Com-
merce Clause, we remanded to the district court for a determi-
nation of whether the challenged laws, though non-
5
In some cases, facial discrimination draws the line, explicitly or in
application, between: 1) laws that are considered discriminatory (e.g. not
“even-handed” in the words of Pike) and therefore subject to stricter scru-
tiny and virtual per se invalidity; and 2) other laws imposing a burden on
interstate commerce (including laws that are discriminatory in purpose and
effect), which are subject to the Pike “clearly excessive” burden test. See,
e.g., Great Atl. & Pac. Tea Co. v. Cottrell, 424 U.S. 366, 375-76, 380-81
(1976) (recognizing that, although Mississippi statute did not discriminate
on its face, by its terms the statute’s effect was to exclude Louisiana milk
from Mississippi, and that such a burden on interstate commerce was
clearly excessive in relation to the putative local benefits and could not be
justified by protectionist goals); Alaska Airlines, Inc. v. City of Long
Beach, 951 F.2d 977, 983 (9th Cir. 1991). In other cases, the determina-
tion of whether a law is subject to strict scrutiny depends on whether there
is any kind of discrimination, including facial discrimination, discrimina-
tory purpose, and discriminatory effect. See, e.g., Nat’l Ass’n of Optome-
trists & Opticians v. Brown, 567 F.3d 521, 524-25 (9th Cir. 2009);
LensCrafters, Inc. v. Robinson, 403 F.3d 798, 802 (6th Cir. 2005); see also
W. Lynn Creamery, 512 U.S. at 193-96, 201-02 (holding that statute was
clearly unconstitutional because of its discriminatory purpose and effect).
NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6709
discriminatory, nevertheless violate the dormant Commerce
Clause. Id. at 528. The threshold issue in this appeal is
whether Plaintiffs have produced sufficient evidence that the
challenged laws, though non-discriminatory, impose a signifi-
cant burden on interstate commerce. As discussed below, we
hold that Plaintiffs have not produced such evidence.
B. Significant Burden on Interstate Commerce
On remand, Plaintiffs argued that, under Pike, the chal-
lenged laws impermissibly burdened interstate commerce.
Nat’l Ass’n of Optometrists & Opticians v. Brown, 709 F.
Supp. 2d 968, 974-78 (E.D. Cal. 2010). The district court,
relying in large part on Exxon Corp. v. Governor of Md., 437
U.S. 117 (1978), rejected those arguments. Id. On appeal,
Plaintiffs contend that the district court misinterpreted Exxon,
and they argue that the challenged laws impose a significant
burden on interstate commerce because the restrictions on
one-stop-shopping result in a transfer of market share and
income from “out-of-state”6 eyewear sellers to in-state optom-
etrists and ophthalmologists who sell eyewear.7
6
Plaintiffs use the term “out-of-state” in reference to their own case to
refer to corporations that are incorporated out-of-state, but own stores that
are located in California and are selling eyewear in California. They use
the term “in-state” to refer to eyewear sellers who are located in California
and selling eyewear in California, but are not owned by a company incor-
porated out-of-state. These terms are used differently, however, in the
cases relied upon by Plaintiffs. Those cases generally use the term “out-of-
state” to refer to the origin of goods and materials produced outside of the
state or to refer to entities producing those goods and materials outside the
state. Here, as far as the record shows, the eyewear sold by opticians is no
more likely to have been produced outside of California than the eyewear
sold by optometrists and ophthalmologists.
7
To the extent Plaintiffs again raise arguments concerning alleged dis-
criminatory costs, barriers to entry, or other discriminatory effects and dis-
criminatory purposes, we will not revisit those issues. We already have
rejected those arguments and held that the challenged laws are not dis-
criminatory.
6710 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
[4] In Exxon, the Supreme Court considered a Maryland
law that prohibited petroleum producers and refiners from
owning retail service stations in Maryland. Exxon, 437 U.S.
117. Because no petroleum products were produced or refined
in Maryland, all the producers and refiners affected by the
regulation were out-of-state companies. Id. at 123. The
Supreme Court first rejected Exxon’s argument that the stat-
ute was discriminatory. Id. at 124-25. The Court then rejected
Exxon’s argument that the statute, even if not discriminatory,
still impermissibly burdened interstate commerce by placing
all the adverse effects of the regulation on interstate compa-
nies. Id. at 126-27. In the course of explaining why there was
not a burden on interstate commerce, the Court made it clear
that the Commerce Clause does not protect “the particular
structure or methods of operation in a retail market.” Id. at
127.
[5] The reasoning of Exxon applies to the instant case.
Plaintiffs want opticians to be able to offer one-stop shopping.
The challenged laws regulating one-stop shopping are gener-
ally applicable regulations of a method of operating in a retail
market. Under the reasoning of Exxon, the dormant Com-
merce Clause does not protect this method of operation, nor
guarantee Plaintiffs their preferred method of operation, in the
eyewear retail market.
Plaintiffs argue that Exxon does not preclude relief here
because the challenged laws have the effect of shifting market
share and profits from “out-of-state” entities to “in-state” ones.8
8
Plaintiffs appear to make a related argument that the challenged laws
burden interstate commerce because the elimination of one-stop shopping
interferes with their ability to compete. This argument does not appear to
be materially different from Plaintiffs’ arguments regarding “out-of-state”
market share and essentially is another way for Plaintiffs to argue that they
should be able to engage in their preferred method of operation. Countless
non-discriminatory regulations affect the ability of some out-of-state enti-
ties to compete, but that does not necessarily mean that those regulations
NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6711
This argument is unavailing. Plaintiffs focus on some of the
Supreme Court’s language in Exxon to argue that the Supreme
Court’s decision in that case turned on the fact that the statute
being challenged would not affect the market share of inter-
state refiners. In particular, Plaintiffs direct us to the Supreme
Court’s response to Exxon’s argument that some refiners
would stop selling petroleum in Maryland as a result of the
Maryland statute:
Some refiners may choose to withdraw entirely from
the Maryland market, but there is no reason to
assume that their share of the entire supply will not
be promptly replaced by other interstate refiners.
The source of the consumers’ supply may switch
from company-operated stations to independent
dealers, but interstate commerce is not subjected to
an impermissible burden simply because an other-
wise valid regulation causes some business to shift
from one interstate supplier to another.
Id. at 127 (emphasis added).
Plaintiffs make much of the fact that the Exxon Court wrote
of a shift from one “interstate supplier to another,” and they
argue that this explains why the Supreme Court upheld the
statute. Plaintiffs distinguish their own case on the grounds
that here the challenged laws will cause a shift in market
share from eyewear sellers owned by companies that are
impose a significant burden on interstate commerce. Cf. Exxon, 437 U.S.
at 133 (“[I]f an adverse effect on competition were, in and of itself,
enough to render a state statute invalid, the States’ power to engage in eco-
nomic regulation would be effectively destroyed.”). If we were to create
an exception to Exxon’s rule regarding methods of operation for those
cases in which competition was affected, such an exception would swal-
low the rule. Moreover, such an exception would be contrary to the rea-
soning and result in Exxon, where the statute unquestionably affected
competition.
6712 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
incorporated outside of California to entirely in-state eyewear
sellers. It is true that, in Exxon, all of the shift in supply neces-
sarily would have been from one out-of-state supplier to
another because there were no in-state suppliers. In contrast,
here we may assume that there will be a shift in market share
from optical stores owned by companies incorporated out-of-
state9 to in-state optometrists or ophthalmologists.
[6] But the Exxon Court’s own analysis shows that the fact
that the change in supply would be from one interstate petro-
leum supplier to another interstate petroleum supplier had no
bearing on the Court’s decision, especially once the Court
determined that the statute was not discriminatory.10 After rul-
ing that the Maryland statute was not discriminatory, the
Court addressed the argument that the statute nevertheless
burdened interstate commerce. The Court focused its concern
on the free flow of petroleum into the state, not on who ulti-
mately profited. The Court noted: “The crux of appellants’
claim is that, regardless of whether the State has interfered
with the movement of goods in interstate commerce, it has
interfered with the natural functioning of the interstate market
either through prohibition or through burdensome regulation.”
9
The restrictions on one-stop shopping apply to all opticians and optical
stores, including those owned by California companies. Thus, we will
assume that there also will be a transfer of eyewear sales and income from
optical companies owned by Californians to California optometrists and
ophthalmologists. We also understand that there are methods of operation
that may impact market share to the benefit of the chain optical stores
owned by interstate companies. However, for purposes of this appeal, we
assume that the challenged laws will result in an overall shift in the market
share of eyewear sales and profits from optical stores owned by out-of
state corporations to entities that are entirely owned by Californians.
10
Even in its statements regarding discriminatory effects, the Court was
discussing the free flow of goods, not who owned those goods, stating:
“[I]f the effect of a state regulation is to cause local goods to constitute
a larger share, and goods with an out-of-state source to constitute a smaller
share, of the total sales in the market . . . the regulation may have a dis-
criminatory effect on interstate commerce.” Id. at 126 n.16 (emphasis
added).
NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6713
Exxon, 437 U.S. at 127 (internal quotation marks omitted)
(emphasis added). It was in the course of rejecting this argu-
ment that the Court stated: “We cannot . . . accept appellants’
underlying notion that the Commerce Clause protects the par-
ticular structure or methods of operation in a retail market.”
Id. The Court went on to explain that the dormant Commerce
Clause “protects the interstate market, not particular interstate
firms, from prohibitive or burdensome regulations.”11 Id. at
127-28. Furthermore, the Court concluded, if the statute
caused the loss of stations owned by some refiners and there-
fore caused harm to the consuming public, such a result
would be related to the wisdom of the statute, not to a burden
on interstate commerce. Id. at 127-28.
The Exxon Court determined that the challenged statute had
no impact on the interstate flow of goods, pointing out that the
sales by independent retailers (who necessarily obtained their
petroleum products from outside Maryland) were just as much
a part of the flow of interstate commerce as sales made by the
stations operated by interstate refiners. Exxon, 437 U.S. at 126
n.16. As part of its analysis, the Court held that the case did
not involve a situation in which there would be a lack of
national uniformity that would impede the flow of interstate
goods. Id. at 128. Having determined that there was no dis-
crimination or other burden on interstate commerce, the Court
11
Plaintiffs concede that there would not be a burden on interstate com-
merce if business shifted from one set of interstate firms to another set of
interstate firms. Thus, Plaintiffs do not appear to be maintaining the argu-
ment that mere loss of profits demonstrates a burden on interstate com-
merce. Rather, their argument rests on the theory that the challenged laws
will result in a shift in the share of sales and profits from companies that
are incorporated out-of-state. To the extent Plaintiffs are arguing that a
mere loss of profits constitutes a burden on interstate commerce, that argu-
ment has no merit. As Exxon makes clear, the dormant Commerce Clause
does not protect a particular company’s profits. Exxon, 437 U.S. at 127;
see also Pac. Nw. Venison Producers v. Smitch, 20 F.3d 1008, 1013-17
(9th Cir. 1994) (holding that dormant Commerce Clause did not protect
plaintiffs’ economic investment against legitimate state regulations pro-
tecting native wildlife).
6714 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
concluded its Commerce Clause inquiry and upheld the stat-
ute. Id. at 128-29, 134. Thus, in deciding whether there was
a non-discriminatory burden on interstate commerce and a
violation of the dormant Commerce Clause, the Exxon
Court’s decision turned on the interstate flow of goods, not on
where the retailers were incorporated, what the out-of-state
market shares of sales and profits were, or whether competi-
tion would be affected by the statute. Exxon thus undercuts,
rather than supports, Plaintiffs’ claim.
Plaintiffs next argue that Minnesota v. Clover Leaf Cream-
ery, Co., 449 U.S. 456 (1981), supports their claim that there
is a significant burden on interstate commerce when non-
discriminatory regulations result in income shifting from out-
of-state corporations to in-state businesses.12 We find this
argument unconvincing. The Minnesota statute at issue in
Clover Leaf prohibited all milk retailers in Minnesota from
selling their products in plastic, non-returnable milk contain-
ers. Id. at 472. The likely result of the statute was that many
milk retailers would switch from plastic milk containers to
paperboard milk containers. Id.After rejecting the argument that the statute was discriminato-
ry,13 the Court concluded that the controlling question was
12
Plaintiffs similarly claim that United Haulers Ass’n, Inc. v. Oneida-
Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330 (2007), supports its con-
clusion that there is a burden on interstate commerce if income is shifted
out of state, arguing that the United Haulers Court’s “chief finding” in its
Pike analysis was that the Court had not detected any disparate impact
between in-state and out-of-state businesses. This part of United Haulers
is of no import here because it is not the opinion of the Court, because it
does not state if or why this fact had any significance, because it appears
to relate to discriminatory effects, and because it made no determination
of whether there even was a burden on interstate commerce. See id. at 346.
13
The Clover Leaf Court’s assessment of whether the statute was “dis-
criminatory” did not include an analysis of whether the statute had dis-
criminatory effects. See Clover Leaf, 449 U.S. at 471-72. The Court
arguably was discussing discriminatory effects as part of its application of
Pike’s “clearly excessive” burden test. Id. at 473-74.
NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6715
whether, under Pike, there was a burden on interstate com-
merce that was clearly excessive in relationship to the puta-
tive local interests. Id. at 472. In its analysis of the burden on
interstate commerce, the Court’s discussion centered on the
flow of goods and raw materials into Minnesota. The Court
began by noting that the statute would permit milk to continue
to move freely across the Minnesota border. Id. The Court
nevertheless found a “relatively minor” burden on interstate
commerce because the statute would result in some benefits
to Minnesota’s pulpwood industry at the expense of non-
Minnesota industries. Id. at 473. This effect was due to the
fact that the plastic resin used in non-returnable milk jugs was
produced by non-Minnesota firms, while pulpwood was a
major Minnesota product. Id.Although the Supreme Court found the burden to be rela-
tively minor and upheld the statute, Plaintiffs argue that this
part of Clover Leaf shows that a shift in income from “out-of-
state” to “in-state” businesses is a burden on interstate com-
merce that must be weighed against the benefits of a statute
causing such a shift in income. In Clover Leaf, however, the
Court made no mention of “income” and instead discussed
manufacturing and exporting materials or goods into another
state. The Court used terms such as “Minnesota product,”
“out-of-state pulpwood producers,” “Minnesota pulpwood
industry,” and “out-of-state plastics industry,” and it
addressed the issue of whether there would be a change in the
importation into Minnesota of materials and goods produced
outside of Minnesota. Id. at 472-73 (emphasis added). Thus,
the Court’s determination of whether there was a burden on
interstate commerce turned on a change in the flow of goods
into the state, not on profits.
[7] We conclude that Supreme Court precedent14 estab-
14
In addition to Exxon and Clover Leaf, Plaintiffs cite a number of other
Supreme Court cases for the proposition that, under the Pike test, courts
consider lost profits and the transfer of revenue or market share from out-
6716 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
lishes that there is not a significant burden on interstate com-
merce merely because a non-discriminatory15 regulation
precludes a preferred, more profitable method of operating in
a retail market. Where such a regulation does not regulate
activities that inherently require a uniform system of regula-
tion and does not otherwise impair the free flow of materials
of-state firms to in-state firms to constitute an injury under the dormant
Commerce Clause. However, these cases are discrimination cases, and
they reinforce our conclusion that dormant Commerce Clause jurispru-
dence is concerned with burdens resulting from discrimination and inter-
ference with the interstate flow of goods, not the share of profits obtained
by entities owned by interstate corporations. For example, in West Lynn
Creamery, Inc. v. Healy, 512 U.S. 186, 196 (1994), the Supreme Court
concluded that the purpose and effect of the state’s thinly disguised tariff
on out-of-state milk was to cause local goods to be a larger share of the
market at the expense of goods coming from out-of-state. The Court deter-
mined that the statute was discriminatory and a violation of the dormant
Commerce Clause. Id. at 194-97. Similarly, Pike itself is a case in which
the challenged order prohibited interstate transfer of cantaloupes for pack-
ing, and the Supreme Court has indicated that the decision in Pike was
about discrimination. See Pike, 397 U.S. at 138, 146 (holding that state’s
interest was not compelling and that Court would not permit state to
require that cantaloupe grower take its packing business to a local packing
company instead of to a packing company in another state); see also
Tracy, 519 U.S. at 298 n.12 (classifying Pike as a case that purported to
apply the Pike undue burden test, but turned largely on the discriminatory
character of the challenged state regulations). C&A Carbone is yet another
discrimination case that discussed concerns about the flow of goods and
services. See C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383,
389-90 (1994) (holding ordinance that had effect of prohibiting out-of-
state businesses from providing certain waste services was discriminatory
and applying strict scrutiny instead of “clearly excessive” burden test); see
also Raymond Motor Transp. Inc. v. Rice, 434 U.S. 429, 445 (1978) (hold-
ing that Wisconsin statute barring trucks of certain lengths imposed a
“substantial burden on the interstate movement of goods”); S.D. Myers,
Inc. v. City and Cnty. of San Francisco, 253 F.3d 461, 471(9th Cir. 2001)
(upholding non-discriminatory ordinance that adversely impacted plaintiff
and emphasizing that the “Commerce Clause is concerned with the free
flow of goods and services through the several states”).
15
By “non-discriminatory,” we mean a regulation that does not discrimi-
nate on its face, in its purpose, or in its effects.
NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6717
and products across state borders, there is not a significant
burden on interstate commerce. We find no support in the law
for Plaintiffs’ proposition that there is a significant burden on
interstate commerce whenever, as a result of non-
discriminatory retailer regulations, there is an incidental shift
in sales and profits to in-state entities from retailers that oper-
ate in-state but are owned by companies incorporated out-of-
state.16
[8] In light of this law, it is apparent that, in the case before
us, there is no material issue of fact regarding whether the
challenged laws place a significant burden on interstate com-
merce. Plaintiffs have not produced evidence that the chal-
lenged laws interfere with the flow of eyewear into
California; any optician, optometrist, or ophthalmologist
remains free to import eyewear originating anywhere into
California and sell it there. In addition, we are not concerned
here with activities that require a uniform system of regula-
tion. Thus, Plaintiffs have failed to raise a material issue of
fact concerning whether there is a significant burden on inter-
state commerce.
C. Benefits of the Challenged Laws
Relying on Pike, Plaintiffs argue that, in determining
whether a regulation violates the dormant Commerce Clause,
courts are required to examine the actual benefits of non-
discriminatory regulations. However, Pike discusses whether
16
Plaintiffs’ interpretation of the law is not only incorrect, but would
lead to unworkable and illogical results. If an interstate company suddenly
purchased all a state’s retailers that were adversely affected by that state’s
regulations, under Plaintiffs’ interpretation of the law, a regulation that
previously was constitutional might immediately be rendered unconstitu-
tional if the regulations then had the effect of shifting profits from “out-of-
state” entities to “in-state” entities. In such situations, out-of-state corpo-
rate headquarters effectively could determine the policies and laws of
another state. This situation would not be consistent with the purposes of
the dormant Commerce Clause.
6718 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
the burden on interstate commerce is “clearly excessive in
relation to the putative local benefits.” See Pike, 397 U.S. at
142 (emphasis added). It does not mention actual benefits as
part of the test for determining when a regulation violates the
dormant Commerce Clause.
[9] Even if Pike’s “clearly excessive” burden test were
concerned with weighing actual benefits rather than “putative
benefits,” we need not examine the benefits of the challenged
laws because, as discussed above, the challenged laws do not
impose a significant burden on interstate commerce. If a regu-
lation merely has an effect on interstate commerce, but does
not impose a significant burden on interstate commerce, it fol-
lows that there cannot be a burden on interstate commerce
that is “clearly excessive in relation to the putative local bene-
fits” under Pike. Accordingly, where, as here, there is no dis-
crimination and there is no significant burden on interstate
commerce, we need not examine the actual or putative bene-
fits of the challenged statutes. This is the implicit lesson of
Exxon. Once the Exxon Court determined that there was no
discrimination and no significant burden on interstate com-
merce, it ended its dormant Commerce Clause analysis with-
out assessing the value of the statute’s purported benefits or
actual benefits. See Exxon Corp. v. Governor of Md., 437 U.S.
117, 125-29 (1978).
[10] Plaintiffs ask us to determine whether the benefits of
the challenged laws are illusory. Occasionally, when deter-
mining whether a non-discriminatory health and safety regu-
lation violates the dormant Commerce Clause, courts will
consider evidence related to a regulation’s actual benefits to
determine if the purported benefits of the regulation are illuso-
ry.17 However, the issue of whether a regulation is illusory is
17
In order for a regulation to be deemed “illusory,” the state must fail
to make even a colorable showing that the regulations contribute to health
and safety, resulting in overwhelmingly one-sided evidence that there are
no real benefits to the challenged law. See, e.g., Raymond Motor Transp.
NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6719
relevant only in very limited circumstances that are not pres-
ent here. In the absence of discrimination or another substan-
tial burden on interstate commerce, we need not determine if
the benefits of a statute are illusory. See, e.g., Raymond, 434
U.S. at 445 (holding that regulations violated the dormant
Commerce Clause where they imposed a substantial burden
on the interstate movement of goods and interfered with the
flow and speed of interstate truck transportation, and the state
failed to make even a colorable showing that the regulations
contributed to safety); see also Kassel v. Consol. Freightways
Corp. of Delaware, 450 U.S. 662, 670-71 (1981) (plurality)
(recognizing that some burdens associated with state safety
regulations must be tolerated, but holding that where “the
State’s safety interest has been found to be illusory, and its
regulations impair significantly the federal interest in efficient
and safe interstate transportation,” the state law violates the
dormant Commerce Clause).
[11] Because the challenged laws are not discriminatory
and do not impose a significant burden on interstate com-
merce, it would be inappropriate for us to determine the con-
stitutionality of the challenged laws based on our assessment
of the benefits of those laws and the State’s wisdom in adopt-
ing them. See CTS Corp., 481 U.S. at 92 (noting that the
Supreme Court is not inclined to second-guess the empirical
judgments of lawmakers concerning the utility of legislation);
Alaska Airlines, Inc. v. City of Long Beach, 951 F.2d 977,
983, 984 (9th Cir. 1991) (holding that it was inappropriate for
the district court to make a quasi-legislative judgment by
Inc. v. Rice, 434 U.S. 429, 437-38, 447-48 (1978). But, if the state pro-
duces some evidence showing the purported benefits exist, the challenged
statute will not be considered illusory even if there is strong countervailing
evidence. See CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 92
(1987) (rejecting contention that state’s concern with prospect of coercive
tender offers was illusory because, even though there was support for the
notion that tender offers generally should be favored, there was some evi-
dence showing that state’s concern was not groundless).
6720 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
weighing community concerns about noise against the need
for safe and efficient national transportation system); cf.
Davis, 553 U.S. at 355 (recognizing that the judicial process
is generally unsuited to answering many of the cost-benefit
questions raised in dormant Commerce Clause challenges).
Accordingly, we express no opinion regarding the value of
the putative benefits or the actual benefits of the challenged
laws.
D. Alternatives To the Challenged Laws
Plaintiffs contend that the district court erred by failing to
determine whether there is a genuine issue of material fact
concerning whether the purposes of the challenged laws could
be served as well with less restrictive alternatives. As an ini-
tial matter, it is not clear what role possible alternative regula-
tions play when, as here, the challenged laws are not
discriminatory. In most dormant Commerce Clause cases, it
is not the role of the courts to determine the best legislative
solution to a problem. See S. Carolina State Highway Dep’t
v. Barnwell Bros., 303 U.S. 177, 190 (1938) (holding that “a
court is not called upon, as are state Legislatures, to determine
what, in its judgment, is the most suitable restriction to be
applied of those that are possible, or to choose that one which
in its opinion is best adapted to all the diverse interests affect-
ed”). During the course of simultaneously discussing both dis-
criminatory and non-discriminatory regulations, Pike does
refer to whether a local interest “could be promoted as well
with a lesser impact on interstate activities.” Pike v. Bruce
Church, Inc., 397 U.S. 137, 142 (1970). However, in one of
the Supreme Court’s most recent discussions of the Pike test,
the Court distinguished between discriminatory laws and non-
discriminatory laws, requiring an examination of alternatives
for discriminatory laws,18 but not for other laws. See Dep’t of
18
This dichotomy is consistent with prior Supreme Court precedent. See,
e.g., Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 894
NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6721
Revenue v. Davis, 553 U.S. 328, 338-39 (2008). This distinc-
tion is consistent with case law requiring the consideration of
less restrictive alternatives only when heightened scrutiny is
required.
[12] Even assuming that, in the wake of Davis, over-
whelming and conclusive evidence of equally effective alter-
native regulations is relevant to the analysis of non-
discriminatory regulations, in order for us to invalidate a stat-
ute based on the availability of less burdensome alternatives,
the statute would have to impose a significant burden on inter-
state commerce. See Pac. Nw. Venison Prods. v. Smitch, 20
F.3d 1008, 1016 (9th Cir. 1994). Because the challenged laws
do not impose a significant burden on interstate commerce, it
would be inappropriate for us to set them aside based on a
conclusion that the State’s purposes could be served as well
with alternative laws. We therefore will not consider any evi-
dence regarding alternative means for the State to achieve its
goals.
V. CONCLUSION
For the foregoing reasons, the district court’s order granting
the State’s motion for summary judgment and denying Plain-
tiffs’ motion for summary judgment is AFFIRMED.
(1988) (recognizing that a state law applying a statute of limitations only
to those present in the state had the discriminatory effect of subjecting for-
eign and domestic corporations to different regulations, and the state could
not justify the statute as a means of ensuring that foreign corporations
would be liable for acts done within the state because a long-arm statute
would permit service on such corporations); Great Atl. & Pac. Tea Co v.
Cottrell, 424 U.S. 366, 375-77 (1976) (discussing obvious alternative to
a Mississippi statute that had both a questionable purpose and the discrim-
inatory effect of excluding all milk from Louisiana even if the milk met
Mississippi health standards).