The FTC has provided the public 30 days to submit comments on the proposed consent agreement package.

As a follow-up to our Alerts from September 2024 and November 2025 concerning the Federal Trade Commission’s (FTC) administrative case against the nation’s three largest pharmacy benefit managers (PBMs), on February 4, 2026, the FTC reached a monumental settlement with Express Scripts Inc., one of the largest PBMs, and its affiliated entities (ESI) to resolve the FTC’s lawsuit alleging the use of anticompetitive and unfair rebating practice to artificially inflate costs of insulin medications.

The consent agreement, if approved by the FTC commissioners as currently proposed, would require ESI to make substantial changes to its business practices that are expected to lead to meaningful change for both consumers and pharmacies, including: lowering patients out-of-pocket costs by up to $7 billion over a 10-year period; increasing transparency for ESI’s patients, plan sponsors and pharmacies by requiring compliance with price transparency laws and requiring disclosures of kickbacks; and providing millions of dollars in additional revenue to independent pharmacies each year.

More specifically, under the FTC’s proposed consent order, ESI has agreed to:

• Stop preferring on its standard formularies high wholesale acquisition cost versions of a drug over identical low wholesale acquisition cost versions;
• Provide a standard offering to its plan sponsors that ensures members’ out-of-pocket expenses will be based on the drug’s net cost, rather than its artificially inflated list price;
• Provide covered access to “TrumpRx” as part of its standard offering upon relevant legal and regulatory changes;
• Provide full access to its patient assurance program’s insulin benefits to all members when a plan sponsor adopts a formulary that includes an insulin product covered by the program unless the plan sponsor opts out in writing;
• Provide a standard offering to all plan sponsors that allows them to transition off rebate guarantees and spread pricing;
• Delink drug manufacturers’ compensation to ESI from list prices as part of its standard offering;
• Increase transparency for plan sponsors, including with mandatory, drug-level reporting, providing data to permit compliance with transparency-in-coverage regulations, and disclosing payments to brokers representing plan sponsors;
• Transition its standard offering to retail community pharmacies to a more transparent and fairer model based on the actual acquisition cost for a drug product plus a dispensing fee and additional compensation for nondispensing services;
• Promote the standard offerings to plan sponsors and retail community pharmacies; and
• Reshore its group purchasing organization, Ascent, from Switzerland to the United States, which will bring back to the United States more than $750 billion in purchasing activity over the duration of the order.

The FTC has provided the public 30 days to submit comments on the proposed consent agreement package.

This settlement, reached after over a year of litigation between the FTC and ESI, would allow ESI to be dismissed as a defendant in the FTC’s pending litigation, leaving defendants CVS Heath and OptumRx to continue to litigate against the FTC. It also follows years of ongoing and increasing nationwide scrutiny of PBMs. Specifically, the FTC has been investigating the nation’s six largest PBMs over alleged anticompetitive conduct for several years, including the issuance of two interim reports detailing problematic conduct engaged in by PBMs towards consumers and independent pharmacies. In 2024, several state attorneys general (including Michigan’s) filed suits alleging collusion among PBMs and drug manufacturers that fueled the opioid crisis. And recently enacted into law is the 2026 Appropriations Act, which contains significant PBM reform requirements, including the expansion of the federal any-willing-provider law.

We will continue to monitor this case and make the ruling and any other updates the subject of a future Alerts.

For More Information

If you have any questions about this Alert, please contact Jonathan L. Swichar, Bradley A. Wasser, Nikki Baniewicz any of the attorneys in our Pharmacy Litigation Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.