Attorneys for UnitedHealth’s Optum Rx, Cigna and CVS Caremark said Khan, along with Commissioners Alvaro Bedoya and Rebecca Kelly Slaughter, have long track records of publicly maligning PBMs that indicate a “serious bias” against them.
The companies in separate filings said the commissioners’ public assertions that PBMs are “price gougers” that hold significant control over access to prescription drugs and the prices of drugs are false.
The FTC announced the lawsuit last month against the companies for engaging in alleged anticompetitive practices that boosted profits while “artificially” inflating the list price of insulin.
The commission alleged that the three PBMs created a “perverse drug rebate system” that prioritizes high rebates from drug manufacturers, leading to higher costs for patients.
The case is being brought under FTC’s internal administrative process, rather than a traditional court of law.
The case will be heard and decided by an FTC administrative law judge. That decision can then be appealed to the full commission, which may hold a hearing and will eventually issue its opinion. That opinion can then be appealed to any of the circuit courts.
The companies argued the commissioners have already concluded that the PBMs’ rebate practices are “unfair and illegal.”
The Biden administration and bipartisan lawmakers have been upping the pressure on PBMs, scrutinizing the business practices of the industry and seeking to shine light on the opaque intermediaries at the center of the pharmaceutical distribution system.
PBMs negotiate the terms and conditions for access to prescription drugs for hundreds of millions of Americans.
They are responsible for negotiating prices with drug companies, paying pharmacies and determining which drugs patients can access and how much they cost.
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