| Kathleen W. Bradish
FTC, Section 5 of the FTC Act, Health & Pharmaceuticals
The American Antitrust Institute (“AAI”) filed public comments with the Federal Trade Commission (“FTC”) on September 4, 2026, on the agency’s proposed settlement with Caremark Rx, L.L.C. and Zinc Health Services, LLC.
Caremark is the second of the three largest pharmacy benefit managers (“PBMs”) to settle in the FTC’s insulin pricing case. The comments follow AAI’s March 2026 comments on the proposed Express Scripts order in the same docket. AAI again applauds the FTC for pursuing PBMs’ anticompetitive conduct under Section 5 of the FTC Act but notes that the central flaw AAI identified in March remains under the new settlement.
As in the Express Scripts order, the Caremark order’s core prohibitions reach only Caremark’s “Standard Offering,” and the order permits a plan sponsor and Caremark to negotiate terms that differ from it. That structure ignores that a plan sponsor may find it more profitable to split the gains from the prohibited practices with the PBM than to pass them to the patients who bear the costs. The settlement’s effectiveness thus continues to rest on the judgment of entities whose incentives the Commission has not addressed. Moreover, a complete public record is lacking. On that score, the FTC’s Analysis of Agreement Containing Consent Order to Aid Public Comment falls short in three respects.
First, the settlement quietly releases an FTC investigation of Aetna Inc. that the public has never been told about. Aetna, the insurance affiliate that sits alongside Caremark under CVS Health, is not a respondent in the insulin pricing case, is not charged in the complaint, and did not sign the agreement. Yet its fully insured health plans carry obligations under the order, and the Consent Agreement releases all claims arising from a Commission investigation of Aetna that appears to be related to this docket but is unexplained in any public document. Nothing on the record says what conduct that investigation concerned, what the evidence showed, or why it is being resolved now.
Second, the Consent Agreement puts limits on the FTC’s ability to address CVS Health’s post-settlement conduct in future reports from the agency’s own 6(b) study of PBM practices. The 6(b) study is among the principal public sources of information about the PBM industry, and the Analysis does not mention this commitment at all.
Third, the Analysis describes the order’s ban on rebate guarantees more broadly than the order imposes, omitting without explanation a proviso that preserves Caremark’s TrueCost program and per-member-per-month net cost guarantees.
AAI takes no position on whether the Commission should have agreed to any of these terms, because the public record contains too little to permit that judgment, and that is the point. The concern is sharpened by the settlement’s posture: the Commission voted 1-0-1 to accept it, with Commissioner Meador recused, leaving the comment record as the only remaining input before the order becomes final. AAI asks the Commission, as it has when so warranted in the past, to publish a supplemental Analysis addressing each of these matters and to reopen the comment period before finalizing the order. AAI also renews the request it made in March that the Commission close the contracting-around route by clarifying that no plan sponsor may negotiate around the order’s core patient protections.
AAI’s public comments were written by AAI Vice President & Director of Legal Advocacy Kathleen Bradish.
Read the comments: AAI’s Comments on the Proposed Settlement with Caremark Rx, L.L.C. and Zinc Health Services, LLC.
