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The country’s big three pharmacy benefit managers (PBMs) are swinging back at the Federal Trade Commission (FTC).
In response to a September lawsuit the agency filed against Caremark, Express Scripts, and Optum Rx—which collectively administer 80% of prescriptions in the US—the PBMs countersued the FTC on November 19 alleging the agency’s suit is “fundamentally unfair” and “unconstitutional.”
The FTC suit claimed the PBMs artificially inflated insulin costs to boost their own profits to the detriment of patients who need the medicine to survive. But according to the PBMs, the FTC’s complaint subverts “accountability and fairness” and attempts to change substantial parts of the pharmaceutical industry.
Since the FTC filed its suit in its in-house administrative court (instead of a federal district court), the PBM suit claims the agency has an unfair advantage by being both the “judge and jury.” The PBMs allege that over the past three decades, the FTC has found a violation every time it brought a case to its in-house court, but when it has brought cases before a federal court, it has lost a number of times.
Further, the FTC lawsuit violates the PBMs’ Fifth Amendment right to due process, which guarantees everyone the right to a fair and impartial trial, the PBMs alleged. They asked the judge to rule that the FTC’s case can’t proceed in administrative court.
“It has become fashionable for corporate giants to argue that a 110-year-old federal agency is unconstitutional to distract from business practices that we allege, in the case of PBMs, harm sick patients by forcing them to pay huge sums for life-saving medicine. It will not work,” FTC spokesperson Douglas Farrar said in a statement to Healthcare Brew.
Elizabeth Hoff, a spokesperson for Optum Rx, told Healthcare Brew that the PBM lawsuit “seeks to require the FTC to resolve its purported claims in a fair and unbiased forum instead of a proceeding where the FTC serves as prosecutor, judge, and jury in violation of bedrock constitutional principles.”
Healthcare Brew also reached out to the other PBMs named in this story, but did not receive responses by publication.