The American Antitrust Institute (“AAI”) filed public comments with the Federal Trade Commission (“FTC”) on March 16, 2026, weighing in on the agency’s proposed settlement with Express Scripts, one of the country’s largest pharmacy benefit managers (“PBMs”). While AAI applauds the FTC for using Section 5 of the FTC Act to pursue PBMs for anticompetitive insulin pricing practices that have driven up out-of-pocket drug costs for patients, AAI argues the proposed settlement falls short of providing meaningful, lasting relief.
AAI’s comments identify three key flaws in the proposed settlement. First, its core prohibitions apply only to Express Scripts’ “Standard Offering,” leaving a significant loophole that allows insurance companies and employers to negotiate around the settlement’s protections by creating customized offerings. Second, the settlement relies on “Plan Sponsors,” including Cigna, which is vertically integrated with Express Scripts, to act as enforcers on behalf of patients, despite well-documented incentives for those same sponsors to profit from the very practices the settlement aims to curb. AAI draws a cautionary parallel to the Hatch-Waxman experience, where a similar “proxy-enforcer” structure ultimately failed consumers for decades.
Finally, AAI raises concerns that the settlement includes provisions, such as crediting patient payments through the TrumpRx platform and requiring Express Scripts to “re-shore” its purchasing organization from Switzerland, that are unrelated to the harms alleged in the complaint. AAI urges the FTC either to remove those provisions and replace them with alternative relief that protects competition and patients or to explain their connection to the underlying conduct, and it recommends strengthening the consent order by making its prohibitions apply to all Express Scripts plans, not just the Standard Offering.
Read the comments: AAI’s Comments on the Proposed Consent Agreement with Express Scripts, Inc.
