Notice2026-02844
Express Scripts, Inc., et al.; Analysis of Agreement Containing Consent Order To Aid Public Comment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 12, 2026
Issuing agencies
Federal Trade Commission
Abstract
The consent agreement in this matter settles alleged violations of Federal law prohibiting unfair methods of competition. The attached Analysis of Agreement Containing Consent Order to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order--embodied in the consent agreement--that would settle these allegations.
Full Text
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<title>Federal Register, Volume 91 Issue 29 (Thursday, February 12, 2026)</title>
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[Federal Register Volume 91, Number 29 (Thursday, February 12, 2026)]
[Notices]
[Pages 6640-6643]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-02844]
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FEDERAL TRADE COMMISSION
[Docket No. 9437]
Express Scripts, Inc., et al.; Analysis of Agreement Containing
Consent Order To Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed consent agreement; request for comment.
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SUMMARY: The consent agreement in this matter settles alleged
violations of Federal law prohibiting unfair methods of competition.
The attached Analysis of Agreement Containing Consent Order to Aid
Public Comment describes both the allegations in the complaint and the
terms of the consent order--embodied in the consent agreement--that
would settle these allegations.
DATES: Comments must be received on or before March 16, 2026.
ADDRESSES: Interested parties may file comments online or on paper by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Please write: ``Express
Scripts; Docket No. 9437'' on your comment and file your comment online
at <a href="https://www.regulations.gov">https://www.regulations.gov</a> by following the instructions on the
web-based form. If you prefer to file your comment on paper, please
mail your comment to the following address: Federal Trade Commission,
Office of the Secretary, 600 Pennsylvania Avenue NW, Mail Stop H-144
(Annex I), Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT: Armine Black (202-326-2502), Health
Care Division, Bureau of Competition, Federal Trade Commission, 600
Pennsylvania Avenue NW, Washington, DC 20580.
SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34,
notice is hereby given that the above-captioned consent agreement
containing a consent order to cease and desist, having been filed with
and accepted, subject to final approval, by the Commission, has been
placed on the public record for a period of 30 days. The following
Analysis of Proposed Agreement Containing Consent Orders to Aid Public
Comment describes the terms of the consent agreement and the
allegations in the complaint. An electronic copy of the full text of
the consent agreement package can be obtained from the FTC website at
this web address: <a href="https://www.ftc.gov/news-events/commission-actions">https://www.ftc.gov/news-events/commission-actions</a>.
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The public is invited to submit comments on this document. For the
Commission to consider your comment, we must receive it on or before
March 16, 2026. Write ``Express Scripts; Docket No. 9437'' on your
comment. Your comment--including your name and your State--will be
placed on the public record of this proceeding, including, to the
extent practicable, on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website.
Because of the agency's heightened security screening, postal mail
addressed to the Commission will be delayed. We strongly encourage you
to submit your comments online through the <a href="https://www.regulations.gov">https://www.regulations.gov</a>
website. If you prefer to file your comment on paper, write ``Express
Scripts; Docket No. 9437'' on your comment and on the envelope, and
mail your comment by overnight service to: Federal Trade Commission,
Office of the Secretary, 600 Pennsylvania Avenue NW, Mail Stop H-144
(Annex I), Washington, DC 20580.
Because your comment will be placed on the publicly accessible
website at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, you are solely responsible for
making sure your comment does not include any sensitive or confidential
information. In particular, your comment should not include sensitive
personal information, such as your or anyone else's Social Security
number; date of birth; driver's license number or other State
identification number, or foreign country equivalent; passport number;
financial account number; or credit or debit card number. You are also
solely responsible for making sure your comment does not include
sensitive health information, such as medical records or other
individually identifiable health information. In addition, your comment
should not include any ``trade secret or any commercial or financial
information which . . . is privileged or confidential''--as provided by
section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2),
16 CFR 4.10(a)(2)--including competitively sensitive information such
as costs, sales statistics, inventories, formulas, patterns, devices,
manufacturing processes, or customer names.
Comments containing material for which confidential treatment is
requested must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular,
the written request for confidential treatment that accompanies the
comment must include the factual and legal basis for the request and
must identify the specific portions of the comment to be withheld from
the public record. See FTC Rule 4.9(c). Your comment will be kept
confidential only if the General Counsel grants your request in
accordance with the law and the public interest. Once your comment has
been posted on <a href="https://www.regulations.gov">https://www.regulations.gov</a>--as legally required by FTC
Rule 4.9(b)--we cannot redact or remove your comment from that website,
unless you submit a confidentiality request that meets the requirements
for such treatment under FTC Rule 4.9(c), and the General Counsel
grants that request.
Visit the FTC website at <a href="https://www.ftc.gov">https://www.ftc.gov</a> to read this document
and the news release describing this matter. The FTC Act and other laws
the Commission administers permit the collection of public comments to
consider and use in this proceeding, as appropriate. The Commission
will consider all timely and responsive public comments it receives on
or before March 16, 2026. For information on the Commission's privacy
policy, including routine uses permitted by the Privacy Act, see
<a href="https://www.ftc.gov/site-information/privacy-policy">https://www.ftc.gov/site-information/privacy-policy</a>.
Analysis of Agreement Containing Consent Order To Aid Public Comment
I. Introduction
The Federal Trade Commission (``Commission'') has accepted, subject
to final approval, an Agreement Containing Consent Order (``Consent
Agreement'') from Express Scripts, Inc., Evernorth Health, Inc., Medco
Health Services, Inc., and Ascent Health Services LLC (collectively,
``ESI'' or ``ESI Respondents''). If and when the Commission issues the
Decision and Order as final, the Consent Agreement settles (1) charges
in In the Matter of Caremark Rx, Zinc Health Services, et al.
(``Insulin Litigation'') that ESI violated Section 5 of the Federal
Trade Commission Act, 15 U.S.C. 45 (``Section 5''), by
anticompetitively and unfairly creating a system of competition that
artificially prioritizes inflated rebates, and (2) the separate
Commission investigation (``PBM Investigation'') into ESI's business
practices seeking to determine whether ESI unlawfully harmed pharmacy
or PBM competition.\1\
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\1\ Under the Consent Agreement, the Commission and ESI agree
that the Consent Agreement is a global settlement that resolves the
Commission's current concerns about ESI's business practices to the
extent reflected in the Decision and Order. The release in the order
excludes certain types of claims from its scope. For example, the
release does not bar the Commission from bringing claims regarding
business practices that ESI adopts after the Consent Agreement was
signed or that were unknown to the Commission at the time, and it
does not bar the Commission from bringing claims in the event it
becomes aware of any agreement between ESI and its competitors.
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Express Scripts is one of the nation's largest pharmacy benefit
managers (``PBM''). Positioned at the center of the intricate and
opaque pharmaceutical distribution chain, it wields significant
influence over which drugs patients can access and at what prices.
Express Scripts administers PBM services on behalf of its plan sponsor
clients, including employers that provide commercial insurance to their
members. It creates drug formularies (lists of preferred drugs) as well
as preferred pharmacy networks where members can go to fill their
prescriptions. The Insulin Litigation alleges that ESI Respondents
created a competition system that prioritizes the size of rebates over
drugs' net price in winning clients, pushed insulin manufacturers to
compete for preferred formulary coverage based on the size of rebates
rather than net price, and shifted the cost of artificially inflated
list prices to vulnerable patients. The PBM Investigation seeks to
determine whether ESI violated Section 5 by requiring its clients'
members to use its affiliated pharmacies or coercing unaffiliated
pharmacies to accept unfavorable contractual terms.
The purpose of the Consent Agreement is to protect the public from
ESI's anticompetitive conduct and deter others from engaging in similar
anticompetitive conduct. Under the terms of the Proposed Decision and
Order (``Proposed Order''), ESI will: (1) cease to discriminate against
low-WAC \2\ versions of a drug on its standard formularies; (2) provide
a standard offering to its plan sponsors that ensures that members will
pay no higher than a drug's net cost; (3) 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 Patient Assurance Program unless the plan sponsor opts out in
writing; (4) provide a standard offering to all plan sponsors that
allows the plan sponsor to transition off rebate guarantees and spread
pricing; (5) delink, for its standard offering, drug manufacturers'
compensation to ESI from list prices; (6) increase transparency for
plan sponsors; (7) include certain terms in its standard offering to
retail community pharmacies; (8) promote the standard offerings to plan
sponsors and retail community pharmacies; and (9) reshore its group
purchasing organization
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(``GPO'') Ascent from Switzerland to the United States.
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\2\ WAC, or wholesale acquisition cost, is the list price for a
drug set by pharmaceutical manufacturers for wholesalers and direct
purchasers.
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The Consent Agreement has been placed on the public record for 30
days for receipt of comments from interested persons. Comments received
during this period will become part of the public record. After 30
days, the Commission will review the comments received and decide
whether it should withdraw, modify, or finalize the Proposed Order. The
purpose of this analysis is to facilitate public comment on the Consent
Agreement and Proposed Order to aid the Commission in determining
whether it should make the Proposed Order final. This analysis is not
an official interpretation of the Proposed Order or the Agreement
Containing Consent Order and does not modify its terms.
II. Insulin Litigation
In September 2024, the FTC sued the three largest PBMs--Express
Scripts, Caremark, and Optum--and their affiliated GPOs. The Complaint
alleges that ESI Respondents have engaged in anticompetitive and unfair
rebating practices that artificially inflated the list price of insulin
drugs, impaired patients' access to lower list price products, and
shifted the cost of high insulin list prices to vulnerable patients.
The Complaint alleges that ESI created a system of competition that
prioritizes rebates over patient affordability. ESI has placed high-
list price, high-rebate versions of insulin on its standard commercial
formularies and excluded low-list price, low-rebate versions of the
same drugs, even when the two versions had comparable net prices. This
system benefits ESI, which keeps a portion of the inflated rebates and
uses the rest to attract plan sponsor clients, while withholding drug-
level price information from clients that would have allowed them to
make more informed decisions about patients' share of drug cost.
According to the Complaint, the inflated list prices hurt patients
whose out-of-pocket payments are tied to the list price of the drug,
such as patients in their deductible phase and those with coinsurance.
While patients pay inflated prices, ESI is enriched by the rebates tied
to each filled prescription.
The Complaint alleges unfair methods of competition and unfair acts
or practices under Section 5 of the FTC Act.
III. PBM Investigation
In fall 2023, the FTC opened an investigation to determine whether
certain business practices of the three largest PBMs, including Express
Scripts, violate the laws enforced by the FTC by unlawfully harming
competition for pharmacy services. Prior to and since opening the
investigation, Staff has received comments from pharmacies, patients,
and other market participants about ESI's business practices. The
comments contend, among other allegations, that ESI uses its dominance
to impose oppressive terms on unaffiliated pharmacies who need to join
the PBMs' pharmacy networks, including reimbursement rates that make it
uneconomical for unaffiliated pharmacies to dispense medications. In
December 2023, the FTC issued a civil investigative demand to Express
Scripts' parent company, The Cigna Group (``Cigna''), to investigate
these concerns. That investigation has been ongoing.
IV. Proposed Order
The Proposed Order, which lasts ten years from the Implementation
Date, contains the following provisions:
Section I generally requires ESI to place low-WAC versions of high-
WAC drugs on its four standard commercial formularies at no
disadvantage to the high-WAC version. The provision includes exceptions
to this requirement if (1) the low-WAC version is higher net cost than
the high-WAC version, or (2) the drug manufacturer is unable to supply
the low-WAC version ``in sufficient quantities to meet expected
demand.'' This provision addresses allegations that ESI placed high-WAC
versions of drugs on its standard commercial formularies and excluded
low-WAC versions of the same drug, despite both versions having
comparable net prices. According to the Insulin Complaint, this
practice increased out-of-pocket costs to patients whose payments are
based on list price (e.g., because the patient is in the deductible
stage of their insurance or owes coinsurance calculated as a percentage
of list price).
Section II contains several terms designed to protect patients from
excessive out-of-pocket expenses. Specifically, Section II requires ESI
to develop a ``standard offering'' to all plan sponsors that:
<bullet> Limits member out-of-pocket costs to be no higher than a
drug's net cost;
<bullet> Prohibits member out-of-pocket costs from being tied to
list price or any other benchmark higher than a drug's net cost; and
<bullet> Provides full access to ESI's programs that reduce out-of-
pocket costs for members.
These provisions, collectively, would reduce out-of-pocket costs
for those plans that adopt the standard offering, including by ensuring
consumers generally benefit from the proportional amount of any rebate
in coinsurance and deductible policies. In addition to providing the
above options in its standard offering to all plan sponsors, Section II
also requires all of Cigna's fully insured health plans to adopt the
above protections on patient out-of-pocket expenses.
Under the ``meeting competition'' provision in Section XI, ESI
would retain the flexibility to respond to specific client requests by
offering customized services that do not comply with the ``standard
offering.'' The plan sponsors may ultimately adopt a customized plan
after being served with a notice of the standard offering and
acknowledging receipt in writing. This ``meeting competition''
exemption does not apply to the requirements that Cigna fully insured
health plans adopt the patient protections in Section II.
Section III ensures that ESI's standard offering, in the event of
certain legislative or regulatory changes, will attribute patient
payments made through the TrumpRx platform towards patient deductibles
and out-of-pocket cost maximum amounts. Section IV generally requires
that ESI provide full access to its Patient Assurance Program to all
members when a plan sponsor adopts a formulary that includes an insulin
product covered by the Patient Assurance Program unless the plan
sponsor opts out in writing. This provision offers further protections
to insulin patients against high out-of-pocket costs.
Section V addresses allegations that ESI's use of rebates to
compete for plan sponsor business--particularly where those rebates are
not passed through to patients at the point of sale--can result in
excessive patient out-of-pocket expenses. Specifically, Section V
requires ESI's ``standard offering'' to plan sponsors to:
<bullet> Enable members to receive the benefit of any rebate or
discounts at the point of sale, without charging a fee other than its
actual cost to pre-fund any rebate, if applicable;
<bullet> Not provide to plan sponsors rebate guarantees or other
guarantees of pre-determined amounts of compensation; and
<bullet> Not employ spread pricing (the practice of a PBM charging
a plan sponsor a different amount for the purchase of a drug than the
PBM reimburses the pharmacy).
The terms of Section V are subject to the ``meeting competition''
exemption detailed in Section XI of the Proposed Order.
Section VI addresses allegations that ESI benefits from placing
higher list
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price products on its formularies by charging fees to manufacturers
that are based on list price. Specifically, Section VI provides that
compensation received by ESI from drug manufacturers related to ESI's
``standard offering'' to plan sponsors will not be based, directly or
indirectly, on a drug's list price.
Section VII addresses allegations that ESI obscures net price
information from plan sponsors. Specifically, Section VII increases
transparency for plan sponsors by requiring ESI to provide as part of
its standard offering an annual report disclosing each drug's costs and
pharmacy claim-level reporting, as well as any compensation paid to
consultants or brokers in connection with ESI's provision of pharmacy
benefit services.
Section VIII addresses ESI's pharmacy reimbursement practices.
Section VIII requires ESI to develop a standard offering to retail
community pharmacies (defined as a pharmacy business with three or
fewer retail stores) that will:
<bullet> Compensate retail community pharmacies based on the actual
cost of acquiring prescription drugs plus a dispensing fee;
<bullet> Make additional payments for all non-dispensing services
performed by a retail community pharmacy; and
<bullet> Not exclude any retail community pharmacy willing to agree
to the terms and conditions for participation from its standard
offering to retail community pharmacies.
Section IX provides that ESI will advertise its standard offerings;
clearly and conspicuously disclose their existence and availability in
material created to advertise, market, or otherwise promote its
products to plan sponsors and retail community pharmacies; not
disparage its standard offerings; and not require or coerce plan
sponsors or retail community pharmacies to adopt terms that differ from
its standard offerings. Section X provides that ESI will move its GPO,
Ascent, from Switzerland to the United States.
Section XI provides that nothing in Sections II, III, IV, V, and
VIII shall prevent ESI from responding to a written request for terms
other than the standard offering from a plan sponsor or retail
community pharmacy. With respect to plan sponsors, if ESI and a plan
sponsor agree to terms other than the standard offering, ESI must then
obtain a written acknowledgement that the plan sponsor has received,
read, and understood the explanation of benefits of the standard
offering attached as Exhibit A to the Decision and Order. Cigna's
fully-insured health plans are excluded from Section XI's ``meeting
competition'' exception.
Section XII appoints a monitor for a term beginning shortly after
the Order issues and ending three years after the Implementation Date
(defined as no later than January 1, 2027). The monitor has the
authority to observe ESI's compliance with the obligations set forth in
the Proposed Order, to act in consultation with, and make inquiries on
behalf of, the Commission or its Staff, and to make annual reports to
the Commission.
Sections XIII, XIV, and XV contain provisions designed to ensure
the effectiveness of the relief, including: obtaining information from
ESI that it is complying with the Order; requiring ESI to submit
compliance reports; and requiring ESI to notify the Commission of
certain changes in its corporate structure. Section XVI provides that
ESI will cooperate with the ongoing Insulin Litigation, including by
providing a certain number of witnesses for depositions and for trial.
The purpose of this analysis is to facilitate public comment on the
Consent Agreement and proposed Order to aid the Commission in
determining whether it should make the proposed Order final. This
analysis is not an official interpretation of the proposed Order and
does not modify its terms in any way.
By direction of the Commission.
Joel Christie,
Acting Secretary.
[FR Doc. 2026-02844 Filed 2-11-26; 8:45 am]
BILLING CODE 6750-01-P
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</html>Indexed from Federal Register on February 12, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.