Express Scripts has filed suit against the Federal Trade Commission, demanding that the agency retract a damning report on the pharmacy benefit management industry.
In the lawsuit, which was filed in Missouri federal court, the PBM argues that the report was filled with “false and misleading claims” about the industry. Express Scripts said that it cooperated in full with the FTC as it conducted its research over the course of two years.
“The FTC’s report disregarded the millions of documents and terabytes of data produced by Express Scripts and other PBMs,” Express Scripts said in a press release. “As a result, the report is riddled with false statements, misleading insinuations and violates the Commission’s duty to follow due process and serve the public interest.”
The report, released in early July, concluded that major pharmacy benefit managers have a size and scale that puts both consumers and independent pharmacies at a disadvantage.
While the FTC stopped short of arguing in favor of breaking up these companies, it did argue that some PBM business practices “warrant further scrutiny and potential regulation.” The three largest PBMs—CVS’ Caremark, UnitedHealth Group’s Optum and Express Scripts—control the majority of the market.
Each of these companies is also vertically integrated with a major health plan: Caremark with Aetna, Optum Rx with UnitedHealthcare and Express Scripts with Cigna, a trend that has garnered significant criticism.
The FTC had not responded to a request for comment at the time of publication.
“The FTC has taken unconstitutional actions in publishing a report that ignores the evidence provided by our company and other PBMs, demonstrates clear ideological bias and advances a false and damaging narrative—a narrative that could harm the health care system by removing essential checks and balances which would result in higher drug prices for American consumers,” said Andrea Nelson, Chief Legal Officer for The Cigna Group, in the press release.
“We don’t take this step lightly, but as advocates working to lower drug prices for millions of Americans and the employers, labor unions, and government agencies that provide their prescription drug benefits, we cannot let the FTC’s unlawful actions and false information stand,” Nelson said.
In a statement, JC Scott, CEO of the Pharmaceutical Care Management Association, the major lobbying group for PBMs, said it “reiterates its position that, to date, the Federal Trade Commission (FTC) has fallen far short of providing a definitive, fact-based assessment of pharmacy benefit managers (PBMs) or the prescription drug market.”
“Anecdotes and comments from anonymous sources and self-interested parties, supported only by cherry-picked case studies that are implied to be representative of the entire market, is damaging to our companies’ ability to rein in costs for the employers and patients we serve, driving costs up everywhere in the healthcare system and helping only Big Pharma,” Scott said.