(Bloomberg) -- CVS Health Corp., UnitedHealth Group Inc. and Cigna Group said members of the US Federal Trade Commission who voted to sue prescription drug middlemen should be barred from overseeing the case, alleging that they’re biased against the industry.
Three members of the commission who advanced the enforcement action “made repeated incorrect prejudgments” about businesses owned by CVS, according to a legal filing by the largest US pharmacy benefit manager. The companies filed separate motions citing extensive public statements from the FTC commissioners criticizing pharmacy benefit managers, or PBMs.
Their demand marks the latest clash between the antitrust agency and PBMs. The FTC has blamed the industry for impeding competition in the market for prescription drugs. Cigna sued the regulator last month, alleging that an earlier FTC report on drug middlemen amounted to defamation.
The FTC has accused units of CVS, Cigna and UnitedHealth of unfair trade practices in how they manage insulin prescriptions. It said the companies illegally kept lower priced insulin products off their lists of approved drugs, driving up costs for consumers.
The agency brought its case in its own administrative court. When the action was filed, two Republican FTC commissioners recused themselves from the vote for reasons the agency didn’t disclose.
Now CVS is seeking to disqualify the three remaining Democratic commissioners, including Chair Lina Khan, who voted to advance the lawsuit. The commissioners first consult with the agency’s ethics officials to decide whether to recuse themselves before a vote on the motion goes to their colleagues.
Khan has in the past declined to recuse herself from an FTC case against Meta Platforms Inc. over the advice of an agency ethics official.
CVS said a long record of public statements from Khan and Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya showed they’re unable to render a fair judgment on the case.
CVS said Khan has “vilified” PBMs in writings and public statements since she was a law student. CVS also cited commissioners’ appearances at events hosted by a trade group for community pharmacies that frequently tangles with PBMs. At one such event, materials portrayed PBMs as “bloodsuckers” and vampires.
The companies provided their filings to Bloomberg News before they were made public on the FTC’s docket.
--With assistance from Leah Nylen.
(Updates throughout with Cigna filings.)
©2024 Bloomberg L.P.