Good News at FTC on CVS Caremark Investigation, PBM Oversight

By Bruce T. Roberts

Monday brought two very positive developments at the Federal Trade Commission (FTC) with regard to the agency’s investigation of the CVS Caremark merger and oversight of pharmacy benefit managers (PBMs) generally. Namely, NCPA leadership met FTC Chairman Jon Liebowitz about the investigation and, later, President Obama nominated two new commissioners, including Julie Brill, a staunch consumer advocate who has kept a keen eye on PBMs over her public service career.

We met with Chairman Leibowitz, Deputy Director for Healthcare Enforcement Brad Albert, Advisor to the Chairman Mike Kades and others.

The meeting was a great beginning to a new, hopefully even more productive, relationship with the FTC. Chairman Leibowitz clearly gets it. His father-in-law was a professor of pharmacology and his mother-in-law was a pharmacist.

I emphasized in detail why community pharmacy makes a difference in the market to consumers. We serve in underserved areas, provide a much higher level of service, and have a strong ties and commitment to the community.

I also discussed how some PBM practices routinely disadvantage patients, who often wind up turning to their community pharmacy to address problems like delayed mail order delivery. Community pharmacies are laboratories of innovation and accessible pillars of our health care system, not just purveyors of a commodity.

We discussed how community pharmacies are critical to trying to solve the problem of inappropriate drug use, especially through projects such as the Asheville project.

We thanked the FTC for their investigation of CVS Caremark and for our May meeting with 80 community pharmacists and two patients. We reiterated that CVS Caremark’s conduct raises very serious concerns.

We also asked the FTC for greater attention to anticompetitive conduct by PBMs; to reconsider the benefits of PBM transparency legislation, as exemplified by provisions in the House and Senate health care reform bills; greater consideration of the need for pharmacies to collectively negotiate with PBMs; and more thorough review of PBM mergers to consider the harm they pose to patients and robust pharmacy competition.

NCPA is also greatly encouraged by President Obama’s nomination of Julie Brill to serve as an FTC commissioner. Ms. Brill is a fierce advocate for patients and a real watchdog over PBMs. She understands the vital role community pharmacies play in health care and our concerns.

Ms. Brill was the chief of consumer protection and antitrust at the North Carolina Department of Justice. Before that, she was the head of antitrust section in Vermont, where she worked tirelessly to get PBM regulation legislation passed. In North Carolina, Ms. Brill was one of the lead attorneys in state cases against PBMs. She has a strong sense of how they harm both consumers and pharmacists. She has been a strong advocate for states getting involved in CVS Caremark. She is sensitive to the concerns of community pharmacists, especially in rural areas.

Senate hearings, testimony and confirmation votes all need to occur before Ms. Brill joins the FTC. But her nomination is a very welcome development.

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