Express Scripts, one of the nation’s largest pharmacy benefit managers (PBMs) sued the United States Federal Trade Commission (FTC) over the Commission’s recent drug pricing report, calling the conclusion of the report defamatory.
In the report, the FTC argues that the three largest PBMs – of which Express Scripts is one – have unjustly enriched themselves, all while squeezing smaller pharmacies and consumers. The FTC alleges that “these powerful middlemen may be profiting by inflating drug costs and squeezing Main Street pharmacies.” The FTC further opined that market consolidations have led to PBMs often favoring their own businesses, which prohibits smaller pharmacies from remaining competitive.
Express Scripts takes issue with the report, saying the FTC relies heavily on public sources and anonymous comments and disregards “the millions of documents and terabytes of data” that was presented by the PBMs in making its statements and conclusions. The complaint refers to the report as “seventy-four pages of unsupported innuendo leveled against Express Scripts and other PBMs under a false and defamatory headline and accompanied by a false and defamatory press release.”
Express Scripts believes that had the FTC considered the data it provided the Commission, it would have reported “the opposite conclusion, that “PBMs lower prescription drug costs for health plan sponsors (employers, unions, and governments) who use PBMs to negotiate with (among others) pharmaceutical manufacturers and retail pharmacies to drive cost savings. PBMs enable plan sponsors to offer prescription drug benefits to millions of Americans despite escalating drug prices.”
Express Scripts seemed to take aim at FTC Chair Lina Khan as well, saying that before she became Chair of the FTC, the FTC “had repeatedly acknowledged the procompetitive benefits of PBMs.” The company noted that the Commission is meant to serve as a “bipartisan defender of consumers and fair competition, not an ideological pawn driven by political winds and special interests.”
The complaint also refers the FTC Commissioner Melissa Holyoak’s “scathing dissent” to the FTC’s decision to issue the report based on the “politicized nature of the process” that drove it, noting that the report did not contain any empirical work to rebut the Commission’s past conclusions that PBMs are pro-competitive.
Express Scripts also notes that the report has led to lawsuits against the PBM as well as investigations by state and federal regulators/lawmakers that it is now having to defend.
The FTC continues to defend the report, with FTC spokesperson Douglas Farrar noting that the three largest PBMs control more than 75% of the market and that “this is a complicated and opaque market, and the FTC is committed to using its clear authority to help the public and policymakers understand it.”
Express Scripts is seeking declarative and injunctive relief, including requesting: a declaratory judgment that the report and corresponding press release defame Express Scripts under Missouri law, an order vacating and setting aside the report, an order requiring the FTC take the report down and an injunction that requires FTC Chair Lina Khan to recuse herself from any actions relating to the company at the FTC.