ALEXANDRIA, Va. — The National Community Pharmacists Association is urging the Federal Trade Commission to revise its proposed consent order with Caremark Rx and Zinc Health Services, warning that the settlement could expose independent pharmacies’ competitively sensitive data and could also limit future enforcement against pharmacy benefit managers.
NCPA filed public comments with the FTC on September 1 regarding the proposed order in Docket No. 9437. While the association supports efforts to address PBM rebate practices that it says have contributed to higher insulin list prices, it wants the commission to narrow the settlement’s waiver of liability and strengthen protections for pharmacy-level acquisition-cost data.
“The FTC’s insulin case is important, but the settlement should not become a vehicle for giving PBMs broader immunity, weakening future enforcement, or creating new opportunities for misuse of pharmacy-level data,” said Matthew Seiler, senior vice president and general counsel of NCPA. “Independent pharmacies should not be forced to disclose competitively sensitive acquisition-cost information to vertically integrated PBMs that also own their direct competitors just to obtain allegedly fair reimbursement, especially when the proposed data protections are plainly inadequate.”
According to NCPA, the proposed order offers improved reimbursement terms for independent pharmacies but conditions those terms on pharmacies providing actual acquisition-cost data.
The association argued that determining acquisition costs at the individual transaction level can be difficult because some rebates are applied later and on an aggregate basis. It also said that such information could reveal details about a pharmacy’s purchasing strategy, wholesaler relationships, margins and inventory economics.
Because Caremark is affiliated with CVS Health’s retail and mail-order pharmacy operations, NCPA wants the FTC to establish stronger firewalls around the information, restrict its use and retention, ensure independent administration, and allow alternatives such as publicly available benchmarks where appropriate.
NCPA also cautioned against allowing the settlement to become a de facto industry standard. It wants any final order limited to the insulin-related allegations at issue and is asking the FTC to preserve its ability to pursue other PBM practices, including pharmacy reimbursement, network restrictions, specialty pharmacy steering, audits, and pharmacy access.
“The commission can and should secure insulin-related relief without handing PBMs a litigation shield for unrelated conduct,” Seiler said. “Any final order should identify exactly what is being resolved, expressly preserve everything else, and make sure independent pharmacies are not forced to disclose sensitive business information to the very companies they compete against.”
NCPA is also asking the FTC to clarify that the final orders would not restrict federal, state, or private enforcement actions involving separate products, services, markets, legal theories, time periods, or competitive effects.
The association represents more than 18,900 community pharmacies nationwide.
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