FTC sues major pharmacy benefit managers over insulin prices

Dive Brief:

• The Federal Trade Commission has filed suit against the three largest pharmacy benefit managers in the country for anticompetitive business practices that artificially inflated the price of life-saving insulin drugs.
• The agency’s administrative complaint alleges CVS’ Caremark, Cigna’s Express Scripts and UnitedHealth’s Optum Rx steered patients toward higher priced insulin to bring in larger rebates from pharmaceutical manufacturers.
• As a result, patients who weren’t eligible for the lower discounted price faced higher costs, the FTC alleges. Caremark, Express Scripts and Optum Rx together control about 80% of U.S. prescriptions.

Dive Insight:

The FTC’s long-awaited lawsuit comes as tensions rise between PBMs, middlemen in the drug supply chain, and the lawmakers and regulators looking to crack down on U.S. drug prices.

The companies have “abused their economic power by rigging pharmaceutical supply chain competition in their favor, forcing patients to pay more for life-saving medication,” the FTC said.

The agency’s complaint hinges on how PBMs have negotiated discounts for insulin medications with drugmakers.

Pharmaceutical companies pay PBMs to have their medications placed on a favorable tier of the formulary, or list of covered drugs. According to PBM critics, that structure incentivizes the middlemen to prefer drugs with higher list prices, resulting in higher consumer costs.

In 1999, the average list price of Eli Lilly’s brand-name insulin, Humalog, was $21, according to the FTC. But due in part to PBMs’ rebating practices, Humalog’s list price increased to more than $274 by 2017, the complaint alleges. Meanwhile, PBMs collected billions of dollars in rebates.

In a statement, Rahul Rao, the deputy director of the FTC’s Bureau of Competition, called Caremark, Express Scripts and Optum Rx “medication gatekeepers” that “extracted millions of dollars off the backs of patients who need life-saving medications.”

“The FTC’s administrative action seeks to put an end to the Big Three PBMs’ exploitative conduct,” Rao continued.

The FTC also names group purchasing organizations owned or affiliated with the three PBMs — Zinc Health Services, Ascent Health Services and Emisar Pharma Services — as defendants.

Express Scripts, Caremark and Optum Rx decried the FTC’s lawsuit on Friday. The action is based on a “profound misunderstanding of how drug pricing works,” according to an Optum Rx spokesperson, and “is simply wrong,” a Caremark spokesperson said.

Andrea Nelson, Cigna’s chief legal officer, slammed the FTC’s lawsuit as an “unsubstantiated and ideologically-driven” attack.

“The fact is that in the unlikely event the FTC succeeds in its suit and forces PBMs to include drugs on formulary even if they have higher net costs for plan sponsors — and regardless of whether they are clinically necessary — the FTC will drive drug prices higher in this country,” Nelson said in a statement.

PBMs maintain that they pass through the majority of rebate savings to their clients, and save customers money overall by negotiating down the price of drugs. Instead, the industry has attempted to refocus blame on drugmakers, arguing the core problem behind unaffordable U.S. drugs are the list prices set by manufacturers.

The FTC noted PBMs aren’t the only problematic companies. “The Bureau also remains deeply troubled by the role drug manufacturers like Eli Lilly, Novo Nordisk, and Sanofi play in driving up list prices of life-saving medications like insulin. Indeed, all drug manufacturers should be on notice that their participation in the type of conduct challenged here raises serious concerns,” the agency said in a statement.

Speculation the FTC would sue the companies started in mid-July, after the FTC released an interim report on the status of its yearslong investigation into the PBM industry.

Express Scripts sued the FTC over the report on Tuesday, arguing it was defamatory and damaging to the PBM’s business.

Regulators and lawmakers in Washington have been more aggressive in cracking down on profiteering in the healthcare industry.

Congress appeared poised to curb some PBM practices last year, including forcing the companies to disclose more information about their negotiation practices to their employer and health plan clients. The push failed to materialize in any passed legislation. Still, lawmakers have held a number of hearings this year, including one over the summer in the House Oversight Committee where representatives on both sides of the aisle were highly critical of the drug middlemen.

PBMs have also faced a number of recent lawsuits over their alleged contribution to rising costs, including from state attorneys general and independent pharmacies.

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