FTC Announces PBM Study

Jun 10, 2022

On June 7, the Federal Trade Commission (FTC) announced that it will begin an inquiry into PBM practices – particularly the actions of the 6 largest PBMs (CVS Caremark, Express Scripts (ESI), Optum, Humana, Prime, & MedImpact).

The action was anticipated in light of the U.S. Senate confirming, with Vice President Kamala Harris’ tie-breaking vote, Alvaro Bedoya to fill the 5th FTC Commissioner seat that had been vacant since October 2021. That confirmation enabled the FTC to get past the failed 2-2 vote on February 17 to approve such an inquiry.

This announcement comes on the heels of recent congressional and administrative scrutiny of PBMs:

A May 16 request of such action by a bipartisan group of U.S. Senators: U.S. Senate Finance Committee Chairman Ron Wyden (D-OR), Ranking Member Chuck Grassley (R-IA), and Senator Mike Braun (R-IN)

  • A May 13 U.S. Senate Commerce Subcommittee hearing and a May 27 bipartisan introduction of a Senate PBM bill (attached are PC Federal Alert/Updates with additional background)
  • The over 24,000 public comments (including a letter from AmerisourceBergen, signed by leaders from Good Neighbor Pharmacy, Elevate Provider Network, and AmerisourceBergen's Specialty Physician Services group) that the FTC received to its February 24 Request for Information about PBM practices
  • And in a related development, on May 31 the FTC and DOJ announced a June 14-15 joint virtual public workshop examining antitrust enforcement in the pharmaceutical industry

Here is additional information regarding the FTC’s inquiry:

  • The FTC is issuing the orders under Section 6(b) of the FTC Act, which authorizes the Commission to conduct studies without a specific law enforcement purpose. The companies will have 90 days from the date they receive the order to respond. Financial penalties are possible if an inquiry recipient fails to do so and Section 6(f) of the Act authorizes the agency to share confidential information with other appropriate enforcement agencies, subject to appropriate limitations and confidentiality. The FTC is empowered to make public some info subject to the restrictions and can release to Congress a report on its findings with recommendations for legislation.
  • The Commission voted 5-0 to issue the Section 6(b) orders and conduct the study of PBMs’ business practices. Chair Lina M. KhanCommissioner Rebecca Kelly Slaughter, and Commissioner Alvaro Bedoya issued statements. Commissioners Noah Joshua Phillips and Christine S. Wilson issued a joint statement.
  • The FTC announced that it is seeking to “shed light” on several PBM practices, including:
    • fees and claw backs charged to unaffiliated pharmacies;
    • methods to steer patients towards pharmacy benefit manager-owned pharmacies;
    • potentially unfair audits of independent pharmacies;
    • complicated and opaque methods to determine pharmacy reimbursement;
    • the prevalence of prior authorizations and other administrative restrictions;
    • the use of specialty drug lists and surrounding specialty drug policies; and
    • the impact of rebates and fees from drug manufacturers on formulary design and the costs of prescription  drugs to payers and patients.

AmerisourceBergen will continue to inform you of our active engagement with key allies such as NCPA, and noteworthy developments on PBM issues which particularly impact our Good Neighbor Pharmacy and Elevate Provider Network independent pharmacy partners and the patients they serve.