Antitrust Agenda: How the Wave of New Democrat House Members May Shape the Next Congress; John Deere Faces State Legislature Push for Farmer Control Over Data; Lawmakers Consider Whether Utility Rate of Return Should Be Set by Markets; Live Nation’s Collection of Amphitheaters Could See State and Local Government Pushback; State AGs Look to Rein in Pharmacy Benefit Managers
*A select excerpt: State AGs using antitrust lawsuits to rein in PBMs. Florida AG James Uthmeier last week filed another antitrust lawsuit against pharmacy benefit managers—his second in less than a month—in a growing bipartisan effort to use antitrust laws to lower drug prices. The most recent Florida case concerns inflated insulin costs, with diabetes […]
*A select excerpt:
State AGs using antitrust lawsuits to rein in PBMs. Florida AG James Uthmeier last week filed another antitrust lawsuit against pharmacy benefit managers—his second in less than a month—in a growing bipartisan effort to use antitrust laws to lower drug prices. The most recent Florida case concerns inflated insulin costs, with diabetes medication manufacturers, PBMs, and rebate aggregators as the named defendants. The older one accuses PBMs Prime Therapeutics and Express Scripts (CI) of price-fixing. Louisiana filed a similar price-fixing lawsuit last month.
The increased scrutiny of PBMs in the last several years has led to state and federal actions that had varying degrees of success. All 50 states passed laws that regulate PBMs in some way, but courts have blocked some of the strongest laws—such as Arkansas’s and Tennessee’s ban on PBMs owning pharmacies; or Illinois’s, which subjects PBMs to new reporting requirements—from going into effect while lawsuits challenging them play out.
In other cases, Brad Gallagher of Barclay Damon told The Capitol Forum, enforcing the new laws brings unforeseen challenges. Sometimes, the state agencies newly vested with enforcement authority can’t or won’t do it, or PBMs find legal workarounds that render parts of laws meaningless, or courts rule that parts of the state law are preempted by federal laws.
“You’ll have these laws or regulations, and then you’ll have no mechanism to enforce them through the state,” Gallagher said. “The state agency doesn’t think that they have enforcement capability in some instances, or they’ll believe that it’s a private dispute.”
But private parties may not have the resources to sue, or, Gallagher said, they may not have the right—some PBM laws don’t include private right of action.
State antitrust lawsuits, then, may be another path to address alleged harms from PBMs. Florida and Louisiana join a handful of others that have filed antitrust lawsuits against PBMs, including California, Iowa, Michigan, Missouri, Oregon and Vermont.
The lawsuits brought by state AGs may have a better chance of succeeding where similar lawsuits brought by private parties have failed, Gallagher said.
“The facts are different. Who’s bringing the cases now is different. There’s definitely more information out there with the FTC’s investigations. Various states have done a lot of investigations themselves,” he said.
Still more antitrust lawsuits may be coming from states. Florida’s Uthmeier in June announced an investigation into CVS’s (CVS) Caremark—which could result in his third PBM case.
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