FTC Targets Drug Rebate Schemes Affecting Formularies

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The Federal Trade Commission says it is ramping up enforcement against any illegal bribes and rebate schemes that impede patients’ access to competing lower-cost drugs. Drug companies use rebates to have their drugs placed on formularies or on preferred tiers of formularies to ensure those drugs are covered. FTC issued an enforcement policy statement 6/14 that “puts drug companies and prescription drug middlemen on notice that paying rebates and fees to exclude competitors offering lower-cost drug alternatives can violate competition and consumer protection laws,” an FTC release says. “The agency will use its full range of legal authorities to combat illegal prescription drug practices that foreclose competition and harm patients.”

 

“These rebates are often conditioned on the drug staying in a preferred position on the formulary. Some rebates and fees are conditioned on the volume of sales of certain high list price prescription medicines,” FTC says. “In addition to other factors, some have suggested that high rebates and fees to PBMs and other intermediaries may incentivize higher list prices for drugs and discourage coverage of the lowest-cost products.” FTC also says it is concerned that rebate practices may be driving up the list price of insulin, which has jumped by over 300% over the past 20 years.

 

The enforcement policy also outlines the legal authorities that may apply when “dominant drug companies pay rebates and fees to middlemen” to block competition from less expensive generic and biosimilar alternatives.

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