PUTT Public Comment | FTC Proposed Decision and Agreement – Docket No. 9437 (Express Scripts, Inc., et al.)

March 16, 2026

Federal Trade Commission

Office of the Secretary

600 Pennsylvania Avenue, NW

Washington, DC 20580

Chairman Ferguson and Commissioners:

Pharmacists United for Truth and Transparency submit the following formal comments regarding the proposed Decision and Agreement in Docket No. 9437 against Express Scripts, Inc. (ESI), Evernorth Health, Inc., Medco Health Services, Inc., and Ascent Health Services LLC. We thank the Commission for including provisions that address anticompetitive practices in the pharmacy benefit management (PBM) industry in the Consent Agreement. We have read through the Agreement and made note of several concerns that, if addressed, could potentially fortify the Agreement and prevent opportunities for future exploitation of patients, plan payers, taxpayers, pharmacies and medical providers. 

We thank you in advance for considering our recommendations and respectfully ask the Commission to consider revising the Consent Agreement before it is finalized.

I. Definitional Deficiencies Could Undermine the Agreement’s Scope

The Agreement’s definition of “Retail Community Pharmacy” as a pharmacy with “three or fewer retail stores” (Definition AA) is far narrower than both common understanding and existing federal law. The U.S. Code defines retail community pharmacy to include independent, chain, and supermarket pharmacies not affiliated with mail order or long-term care. The Agreement’s definition excludes independent pharmacies operating more than three locations, as well as grocery store pharmacy chains, effectively limiting the benefits of the Standard Offering to a fraction of the pharmacies that serve patients in our communities.

We recommend the Commission replace this definition with “non-PBM affiliated, non-vertically integrated pharmacy,” consistent with the CMS definition and the government’s existing statutory framework. Additionally, the Agreement fails to define “Connecticut General Corporation” anywhere in the definitions section despite naming it as a party to agreements in Section II. Several other terms used throughout the Agreement — including “PSAO,” “first dollar coverage,” “non-dispensing services,” and “compensation” — are likewise undefined, providing ESI with – we fear - room to interpret these terms in self-serving ways. Non-dispensing services must also be specifically enumerated (including immunizations, medication therapy management, medication synchronization, blister packaging, and counseling) and should carry defined, non-performance-based reimbursement rates.

II. Key Substantive Provisions May Contain Exploitable Loopholes

Non-Discrimination of Low-WAC Drugs (Section I). The Agreement’s protections against formulary discrimination apply only “when a Drug Manufacturer markets a High-WAC Version and a Low-WAC Version” — meaning both versions must originate from the same manufacturer. This excludes multi-source generics from competing manufacturers, which represent most cost-saving generic drugs in the market. The supply-sufficiency proviso in paragraph two may further allow ESI to cut corners with its compliance by claiming “a manufacturer cannot meet demand.” We recommend revising Section I to apply whenever an A-rated, therapeutically equivalent version of a medication exists per FDA Orange Book ratings, including biosimilars, and that the supply-sufficiency carve-out be deleted entirely.

Insulin and Patient Assurance Program (Section IV). The Agreement’s insulin protections rely on ESI’s own proprietary “Patient Assurance Program,” which ESI controls and can modify at any time, and which plan sponsors may opt out of “in writing.” We are concerned the opt-out provision may result in situations in which plan sponsors feel pressured or misled into opting out based on rebate considerations, leaving patients without the protections the Agreement seeks to guarantee. The Commission should consider requiring a straightforward $35 insulin copay cap consistent with existing federal law, without plan-sponsor opt-out authority.

Rebates and Spread Pricing (Sections V and VI). Section V.A permits ESI to charge its “actual cost to pre-fund” rebates without specifying who bears this cost or how it is calculated, creating a mechanism through which pharmacies could be charged fees under a different name. Section V.C prohibits spread pricing, yet ESI’s own definition of “Spread Pricing” excludes various administrative fees, allowing the practice to continue in a different form. Real-world audits confirm this risk: a West Virginia Caremark audit documented how a PBM kept 8% of a 78% manufacturer discount on a diabetes drug — approximately $45 per prescription — while pharmacies lost $200 per fill, and cheaper therapeutic alternatives were excluded from the formulary entirely. We recommend the FTC make explicit that no fee of any kind may be substituted for prohibited spread pricing. Additionally, Section VI’s requirement that ESI compensation be “delinked” from list price appears to omit the word “rebate,” - unlike Section V.B, - which could create an unexplained and potentially exploitable inconsistency.

Compensation Structure for Pharmacies (Section VIII). Section VIII requires that pharmacies be compensated based on “actual acquisition cost plus a dispensing fee,” conditioned on pharmacies disclosing their proprietary acquisition cost data to ESI on a quarterly basis. This requirement is fundamentally unfair and inconsistent with the reality of how pharmacy reimbursement: pharmacies submit usual and customary prices to PBMs, which respond based on unpublished MAC (Maximum Allowable Cost) lists. Pharmacies’ actual acquisition costs are proprietary business information, just as PBM contracts are proprietary. 

Pharmacies should not be compelled to be disclosed to a commercial counterparty 

PBMs operate their own mail-order and specialty pharmacy operations that compete directly with independent retail pharmacies. Requiring pharmacies to disclose sensitive acquisition cost data to ESI is requiring them to hand competitive intelligence to a direct competitor — an arrangement no other industry would countenance and one the Commission should not embed in a consent order. We urge the Commission to replace this mechanism with reimbursement based on NADAC (National Average Drug Acquisition Cost), which is publicly available, updated monthly by CMS, and easily programmable into existing systems. We also recommend including unambiguous language including a professional dispensing fee as defined by CMS, which covers the cost of dispensing and is not profit.

III. The “Standard Offering” Framework May Be Structurally Insufficient to Fulfill the Commission’s Intent to Create a Standard, Transparent Framework

Under Section XI, plan sponsors may opt out of the Standard Offering in writing with minimal procedural requirements. This creates a serious risk that ESI will make the Standard Offering financially unattractive — for example, by offering more generous rebate guarantees under non-standard plans — inducing plan sponsors to opt out and voiding the Agreement’s protections for patients and plan payers =. This mirrors the “plan design” defense ESI and other PBMs have used in many legislative hearings: “the plan sponsor chose this.”

Section XI’s Exhibit A acknowledgment form may worsen the problem. To be meaningful, the acknowledgment must require a signed, affirmative statement by the plan sponsor stating the plan sponsor was not financially incentivized, coerced, or enticed to choose a non-standard plan. ESI should also be required to provide a side-by-side cost comparison disclosing the full costs of both the standard and alternative plans — including cost to the plan sponsor, cost to patients, administrative fees, and all other expenses. These comparisons should be reported to the FTC when non-standard plans are offered and should be publicly available.

Section IX’s prohibition on coercing plan sponsors to adopt non-standard plans should also be expanded to prohibit verbal coercion and financial incentives to steer sponsors away from the Standard Offering. Network participation protections should extend to any plan offering — not just the Standard Offering — to prevent ESI from excluding pharmacies from TRICARE and other plans.

IV. As Currently Stated, Transparency Provisions May Not Provide Enough Information or Time for Plan Sponsors, Pharmacies, and Plan Enrollees

Section VII requires ESI to submit annual automated reports to plan sponsors by January 1, 2028. We are concerned that annual reporting may create a lag that prevents plan payers from discovering, addressing and correcting issues prior to the next plan year. We recommend quarterly or biannual reporting, with data available by July 1 each year to allow plan sponsors enough time to make changes before the standard October open enrollment deadlines.

We have experienced instances in which PBM reports that were to be made available to the public were produced in uncommon, machine-readable formats such as JSON. We recommend the FTC amend the reporting to require reports be provided in accessible, readable formats such as Excel. Additionally, claim-level reporting must not be aggregated — it must break down payment differences by pharmacy type, distinguishing between mail-order, vertically integrated, and independent retail pharmacies.

Requirements for ESI’s Group Purchasing Organization

Transparency requirements under Section VII should also extend to GPOs. Additionally, GPOs should be required to maintain a fiduciary duty to plan sponsors. We are concerned that, until drugmaker rebate “safe harbor” protections are repealed, Section X’s requirement to comply with GPO safe harbor disclosure obligations will not be enough to force ESI to fully disclose the size and scope of all rebates they require from manufacturers. We are relieved the FTC was able to mandate Ascent Health be re-domiciled in the U.S., the Agreement does not seem to prevent ESI from establishing future offshore entities or renaming existing GPO structures to circumvent the reshoring requirement. In our experience, ESI and its fellow “Big 3” PBMs must be explicitly instructed to maintain onshore operations or else they will find ways to interpret Agreements and laws favorable to their profit-motivated outcomes.

Reporting Timelines

Compliance reports under Section XIII must include an explicit requirement that ESI provide all requested information within 30 days. State-level audits in Florida and Tennessee have documented instances where PBMs ignored or stonewalled similar data requests. Compliance reports, which are produced using taxpayer-funded regulatory resources, should be publicly viewable. Section XIV should also be revised to remove the qualifier “that might affect compliance obligations” from the change-in-respondent notification requirement; any material change to ESI’s corporate structure should trigger mandatory disclosure, regardless of ESI’s own assessment of its compliance impact.

V. Monitor and Enforcement Provisions Require Fundamental Reform

The monitoring framework in Section XII is, in our view, poses some of the greatest risk to the Agreement’s spirit and intention of accountability. As written, ESI would nominate its own Monitor candidates, the selected Monitor would report to ESI’s Chief Legal Officer, and the Monitor’s only escalation path — if the Chief Legal Officer is unresponsive — is to notify ESI’s own Board of Directors. Having been at the effect of the largest PBMs’ “fox guarding the henhouse” methodologies for almost two decades, we are deeply concerned this directing will be another form of self-policing that will shield ESI’s most egregious business practices from the FTC and the public. We recommend the FTC select the Monitor directly without nominations from ESI, and the Monitor report to the Commission, not to ESI’s legal team.

We recommend further changes: At minimum, one Monitor appointee should represent retail community pharmacies and must not be affiliated with any vertically integrated entity or any of the named respondents in this proceeding. Monitors must have clearly defined qualifications, and their compensation structure must be transparent. No Monitor should be permitted to work for any entity related to this proceeding for at least one year following the end of their service.

We respectfully recommend the Monitor’s complaint-handling authority be increased to include investigation and reporting of findings the Commission. The Monitor should also be required to report to the Commission quarterly — not annually — and a minimum service period of 18 months following implementation should be established before terminating the need for a Monitor because of ESI’s “good behavior”. The side-by-side plan comparison requirement discussed above in Section III can be implemented, required, and enforced if the Monitor is given sufficient authority.

VI. Conclusion

We greatly appreciate and support the Commission’s efforts to include the concerns of patients and pharmacies as part of the Corrective Agreement. The proposed Agreement represents a meaningful and much-needed step toward accountability in the PBM industry. We recognize that ESI came forward of its own volition to work with the FTC, and we hope the terms presented by the Commission will result in a better working partnership between Express Scripts and its network pharmacies. We respectfully request the Commission consider our recommendations when reviewing subsequent consent Agreements involving Caremark and OptumRx.

In summary, we ask the Commission to revise the Agreement to address the following:

•        Adopt a broader definition of Retail Community Pharmacy consistent with the CMS definition and federal statute, replacing the three-store limit with “non-PBM affiliated, non-vertically integrated pharmacy”

•        Extend all Agreement protections uniformly to all ESI-administered plans, not only the Standard Offering, and eliminate meaningful plan-sponsor opt-out authority

•        Revise Section I to cover multi-source generics and biosimilars using FDA Orange Book A-ratings, deleting the supply-sufficiency loophole

•        Replace the Patient Assurance Program insulin provision with a statutory $35 copay cap without opt-out provisions

•        Require pharmacy reimbursement based on NADAC plus a defined dispensing fee, eliminating the requirement that pharmacies disclose proprietary acquisition cost data to ESI

•        Clarify that no fees of any kind may substitute for prohibited spread pricing, and ensure consistency of rebate language between Sections V and VI

•        Define non-dispensing services with specificity and require fixed, non-performance-based reimbursement rates

•        Require quarterly reporting to plan sponsors in accessible formats, with breakdowns by pharmacy type, and make compliance reports publicly available

•        Extend Section VII transparency requirements to GPOs, require GPO fiduciary duty to plan sponsors, and prohibit creation of new offshore entities

•        Require ESI to provide a signed non-coercion statement and side-by-side plan cost comparison whenever plan sponsors opt out of the Standard Offering

•        Reform the Monitor framework so the FTC selects Monitors directly, Monitors report to the Commission rather than ESI’s Chief Legal Officer, Monitor composition includes retail pharmacy representation, and Monitors are required to investigate complaints and report quarterly

•        Establish a mandatory minimum monitoring period of 18 months post-implementation and define Monitor qualifications and post-service restrictions

•        Remove the “might affect compliance” qualifier from Section XIV’s change-in-respondent notification requirement

Thank you for the opportunity to submit these comments. We welcome the opportunity to further discuss our concerns. We remain steadfastly committed to finding solutions that ensure patients maintain access to care at the pharmacy of their choice and continue to work toward meaningful, mutually respectful business relationships between PBMs and pharmacies, ensuring Americans receive the finest healthcare on the planet.

Respectfully submitted,

Monique Whitney

Executive Director

Pharmacists United for Truth & Transparency

Deborah Keaveny

President

Pharmacists United for Truth & Transparency