The FTC was created to be independent and objective – with the purpose of protecting consumers and promoting competition. Unfortunately, the Commission’s report falls short of that mission. We have no choice but to hold the FTC accountable and protect our ability to lower drug costs for the thousands of clients and the millions of Americans we serve.
Advocating for American consumers
Express Scripts is suing the Federal Trade Commission to withdraw its biased and flawed PBM report because the report is not in the best interest of consumers and the people we serve.
On September 17, 2024, Express Scripts sued the Federal Trade Commission (FTC) to demand the Commission withdraw its July 2024 report regarding its 6(b) study of the pharmacy benefit management (PBM) industry.
The report perpetuates false narratives about the industry based on unsubstantiated claims and comments from self-interested sources – despite our yearslong cooperation during their study.
The FTC has failed to serve consumer interests
Learn more about Express Scripts' lawsuit against the FTC below
Press release
Express Scripts' legal complaint
The basis for Express Scripts’ legal action
The FTC’s false assertions seek to advance a damaging narrative about the PBM industry. The report disregards the millions of documents and terabytes of data produced by Express Scripts and other PBMs involved in the study. We are deeply concerned that the FTC – a government agency funded by taxpayer dollars – could get an important issue such as drug pricing so irresponsibly wrong.
Why the FTC’s report is unlawful and should be retracted:
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 FTC ignored the more than 769 million lines of data, constituting more than 11 billion observable data points, and more than 3.34 million pages of documents that Express Scripts provided for the study. In fact, more than 75% of the citations in the report are to public, special interest sources – many of which were anonymous and unverifiable yet treated as fact by the Commission.
- Also overlooked were PBMs’ contributions to reducing drug costs, making generics and biosimilars more affordable, and leading the way in capping insulin prices at $25 per month for millions of people.
- Professor Dennis Carlton, a preeminent antitrust independent economist authored a report based on his research into pharmacy benefit managers utilizing the same data produced to the FTC. His study shows PBMs foster competition among rival drug manufacturers and rival pharmacies and reduce drug costs for plan sponsors and members relative to what they otherwise would be.
The FTC’s sole mission is to protect the American people, and sham reports that ignore evidence to reach a predetermined interest are contrary to the public interest. Moreover, the report makes numerous inaccurate and misleading claims that cannot advance the public’s understanding of the healthcare system or contribute constructively to policy discussions and public discourse.
- Indeed, the report seeks to do the opposite by blatantly siding with special interests responsible for skyrocketing drug prices – and ultimately, perpetuating a false narrative regarding PBMs, without whom plan sponsors and members would be subjected to even higher prescription drug costs.
The FTC’s PBM study has been highly biased since the beginning and fails to consider decades of prior FTC research affirming the value that PBMs provide.
- Notably, a dissenting commissioner believes the report reflects a biased, “guilty before proven innocent” perspective and objected to the fact that the report fails to supply the public and Congress “with evidence-based, objective, and economically sound information.”
- Chair Khan’s bias against PBMs dates back to her time in law school, when she (with no data or information to support her statement) asserted that “PBMs joined to pharmacies tend to steer plan members away from independent entities” and wrongly claimed this supposed “conflict of interest” kept “drug prices high.”
- Chair Khan has since repeatedly demonstrated hostility toward PBMs, speaking at events sponsored by lobbyists for the pharmaceutical and pharmacy industries, the loudest critics of PBMs, and prejudging the outcome of the report in her testimony before a Senate Judiciary Subcommittee in 2022.