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
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, California, for the appellees.

OPINION

HUG, Senior Circuit Judge:

I. INTRODUCTION

This case concerns the constitutionality of certain California statutes and regulations. These statutes and regulations

prohibit licensed opticians1 from offering prescription eye1

Individuals and optical companies, such as LensCrafters, Inc., that fill

prescriptions and perform related services in selling eyewear, fit within the

6700 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
wear at the same location in which eye examinations are provided and from advertising that eyewear and eye examinations are available in the same location. The National

Association of Optometrists and Opticians, LensCrafters, Inc.,

and Eye Care Centers of America, Inc. (collectively “Plaintiffs”) 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, contending that the statutes and regulations place a burden on

interstate commerce that excessively outweighs the local benefits of the law. California’s Attorney General and Department 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 Business & 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 optidefinition 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. 

2LenCrafters, Inc. is incorporated in Ohio and owns and operates retail

stores in California. Eye Care Centers of America, Inc. is a Texas corporation that owns and operates retail stores in California. These California

stores employ opticians and sell eyewear. 

NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6701
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 ophthalmologists 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 practice 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 California entities or are owned by companies incorporated outside 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 challenged 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. 

3Optometrists and ophthalmologists are health care providers who have

met specified educational requirements and must comply with certain ethical and professional responsibilities. See Nat’l Ass’n of Optometrists &

Opticians v. Brown, 567 F.3d 521, 526-27 (9th Cir. 2009). Many optometrists and ophthalmologists sell eyewear to their patients. Id. at 527. 

6702 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
We reversed, holding that the challenged laws were not discriminatory 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 summary 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 interstate 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 cognizable 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 interests.” 567 F.3d at 526. We did not reach the issue of whether these laws

were successful in achieving the State’s goals. 

NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6703
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 entitled 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 summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). We may affirm a grant of summary judgment 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 sufficient 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

6704 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
against or burden the interstate flow of articles of commerce.”). This limitation on state power has come to be

known as the dormant Commerce Clause. See Dep’t of Revenue v. Davis, 553 U.S. 328, 337 (2008). 

Modern dormant Commerce Clause jurisprudence primarily “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 principal 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 protectionism,” because these are the “laws that would excite those jealousies 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 dormant Commerce Clause is that “this Nation is a common market 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 vulnerable 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 requirement 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 invalidated statutes that imposed other significant burdens on interstate commerce. Gen. Motors Corp. v. Tracy, 519 U.S. 278,

298 n.12 (1997). These other significant burdens on interstate

NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6705
commerce generally result from inconsistent regulation of

activities that are inherently national or require a uniform system 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 protects 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 legislate 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 interests of local autonomy and burdens on interstate commerce.

In one of those cases, Pike v. Bruce Church, Inc., the Supreme

6706 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
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 regulates even-handedly to effectuate a legitimate local

public interest, and its effects on interstate commerce

are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive

in relation to the putative local benefits. If a legitimate 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 involving discrimination and cases subject to Pike’s “clearly excessive” 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 jurisprudence 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

NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6707
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 challenged laws are not discriminatory on their face, in their purpose, or in their effect. See Nat’l Ass’n of Optometrists, 567

F.3d at 524-28. Nevertheless, because it is possible for nondiscriminatory regulations to place a significant burden on

interstate commerce and thereby violate the dormant Commerce Clause, we remanded to the district court for a determination of whether the challenged laws, though non5

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 scrutiny 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 determination of whether a law is subject to strict scrutiny depends on whether there

is any kind of discrimination, including facial discrimination, discriminatory purpose, and discriminatory effect. See, e.g., Nat’l Ass’n of Optometrists & 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).

6708 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
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 significant 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 challenged 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 optometrists and ophthalmologists who sell eyewear.7

6Plaintiffs 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 incorporated out-of-state. These terms are used differently, however, in the

cases relied upon by Plaintiffs. Those cases generally use the term “out-ofstate” 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. 

7To the extent Plaintiffs again raise arguments concerning alleged discriminatory costs, barriers to entry, or other discriminatory effects and discriminatory purposes, we will not revisit those issues. We already have

rejected those arguments and held that the challenged laws are not discriminatory. 

NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6709
[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 statute 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 companies. 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 generally applicable regulations of a method of operating in a retail

market. Under the reasoning of Exxon, the dormant Commerce 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

8Plaintiffs 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 entities to compete, but that does not necessarily mean that those regulations

6710 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
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 interstate 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 otherwise 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 economic 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 swallow the rule. Moreover, such an exception would be contrary to the reasoning and result in Exxon, where the statute unquestionably affected

competition. 

NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6711
incorporated outside of California to entirely in-state eyewear

sellers. It is true that, in Exxon, all of the shift in supply necessarily 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-ofstate9

 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 petroleum 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 ruling 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 ultimately 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.”

9The 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. 

10Even 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 discriminatory effect on interstate commerce.” Id. at 126 n.16 (emphasis

added). 

6712 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
Exxon, 437 U.S. at 127 (internal quotation marks omitted)

(emphasis added). It was in the course of rejecting this argument that the Court stated: “We cannot . . . accept appellants’

underlying notion that the Commerce Clause protects the particular 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 therefore 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 discrimination or other burden on interstate commerce, the Court

11Plaintiffs concede that there would not be a burden on interstate commerce if business shifted from one set of interstate firms to another set of

interstate firms. Thus, Plaintiffs do not appear to be maintaining the argument that mere loss of profits demonstrates a burden on interstate commerce. 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 argument 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 protecting native wildlife). 

NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6713
concluded its Commerce Clause inquiry and upheld the statute. 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 competition would be affected by the statute. Exxon thus undercuts,

rather than supports, Plaintiffs’ claim. 

Plaintiffs next argue that Minnesota v. Clover Leaf Creamery, Co., 449 U.S. 456 (1981), supports their claim that there

is a significant burden on interstate commerce when nondiscriminatory regulations result in income shifting from outof-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 containers. 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 discriminatory,13 the Court concluded that the controlling question was

12Plaintiffs similarly claim that United Haulers Ass’n, Inc. v. OneidaHerkimer Solid Waste Mgmt. Auth., 550 U.S. 330 (2007), supports its conclusion 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.

13The Clover Leaf Court’s assessment of whether the statute was “discriminatory” did not include an analysis of whether the statute had discriminatory 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. 

6714 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
whether, under Pike, there was a burden on interstate commerce that was clearly excessive in relationship to the putative 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 nonMinnesota 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 relatively minor and upheld the statute, Plaintiffs argue that this

part of Clover Leaf shows that a shift in income from “out-ofstate” to “in-state” businesses is a burden on interstate commerce 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 estab14In 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 outNATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6715
lishes that there is not a significant burden on interstate commerce 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 regulation 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 jurisprudence is concerned with burdens resulting from discrimination and interference 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 determined 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 packing, 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-ofstate 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) (holding 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”). 

15By “non-discriminatory,” we mean a regulation that does not discriminate on its face, in its purpose, or in its effects. 

6716 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
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 nondiscriminatory retailer regulations, there is an incidental shift

in sales and profits to in-state entities from retailers that operate in-state but are owned by companies incorporated out-ofstate.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 commerce. Plaintiffs have not produced evidence that the challenged 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 regulation. Thus, Plaintiffs have failed to raise a material issue of

fact concerning whether there is a significant burden on interstate 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 nondiscriminatory regulations. However, Pike discusses whether

16Plaintiffs’ 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 unconstitutional if the regulations then had the effect of shifting profits from “out-ofstate” entities to “in-state” entities. In such situations, out-of-state corporate 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. 

NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6717
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 regulation merely has an effect on interstate commerce, but does

not impose a significant burden on interstate commerce, it follows that there cannot be a burden on interstate commerce

that is “clearly excessive in relation to the putative local benefits” under Pike. Accordingly, where, as here, there is no discrimination and there is no significant burden on interstate

commerce, we need not examine the actual or putative benefits 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 commerce, it ended its dormant Commerce Clause analysis without 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 determining whether a non-discriminatory health and safety regulation 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 illusory.17 However, the issue of whether a regulation is illusory is

17In 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.

6718 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
relevant only in very limited circumstances that are not present here. In the absence of discrimination or another substantial 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 commerce, it would be inappropriate for us to determine the constitutionality of the challenged laws based on our assessment

of the benefits of those laws and the State’s wisdom in adopting 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 produces 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 evidence showing that state’s concern was not groundless). 

NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6719
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 initial matter, it is not clear what role possible alternative regulations 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 affected”). During the course of simultaneously discussing both discriminatory 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 nondiscriminatory laws, requiring an examination of alternatives

for discriminatory laws,18 but not for other laws. See Dep’t of

18This dichotomy is consistent with prior Supreme Court precedent. See,

e.g., Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 894

6720 NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS
Revenue v. Davis, 553 U.S. 328, 338-39 (2008). This distinction 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, overwhelming and conclusive evidence of equally effective alternative regulations is relevant to the analysis of nondiscriminatory regulations, in order for us to invalidate a statute based on the availability of less burdensome alternatives,

the statute would have to impose a significant burden on interstate 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 evidence 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 Plaintiffs’ 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 foreign 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 discriminatory effect of excluding all milk from Louisiana even if the milk met

Mississippi health standards). 

NATIONAL ASSOCIATION OF OPTOMETRISTS v. HARRIS 6721