The news: Just two months after the FTC sued the three largest pharmacy benefit managers (PBMs) over artificially inflating insulin prices, the industry’s most prominent middlemen have countersued the agency.
The latest twist in the back-and-forth legal battle involves CVS Health’s Caremark, Cigna’s Express Scripts, and UnitedHealth’s Optum Rx filing a lawsuit against the FTC claiming the regulator’s case is unconstitutional.
Catch up quick: The FTC’s September lawsuit alleged that the three have created a “perverse” rebate system that favors higher-priced insulin products even when more affordable insulins with lower list prices are available.
The PBMs have refuted the FTC’s allegations, demanding that FTC Chair Lina Khan and two other commissioners recuse themselves from the agency’s case against them. Prior to this, Express Scripts separately sued the FTC, demanding a retraction of an agency report that criticized pharma’s middlemen.
Behind the lawsuit: The PBMs allege the FTC’s legal process behind its lawsuit over insulin prices violates the PBMs’ right to due process under the Fifth Amendment.
Our take: We find it telling that the PBMs’ case is more about the FTC’s litigation process than defending their own business practices.
It’s a legal strategy that may work (depending on who is FTC chair in Trump’s administration), but it shouldn’t divert attention from the role PBMs play in rising prescription drug costs.
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