CVS, UnitedHealth, Cigna say FTC should take Lina Khan off PBM case

CVS Health, UnitedHealth Group and Cigna are demanding Federal Trade Commission Chair Lina Khan and two other commissioners recuse themselves from a suit accusing the companies and other drug middlemen of boosting their profits while inflating insulin costs for Americans. 

In separate motions filed Tuesday night with the FTC, the companies argued that all three commissioners have an extensive track record of making public statements that indicate allegedly serious bias against the companies’ so-called pharmacy benefit managers. 

The companies accused Khan, as well as Commissioners Alvaro Bedoya and Rebecca Kelly Slaughter, of incorrectly asserting that PBMs are “price gougers” that hold significant control over the pricing and access to drugs like insulin. CVS said those statements demonstrate that the commissioners have “prejudged this matter,” so their participation in the case “violates due process.” 

“If the opposite of ‘complete fairness’ is ‘blatant bias,’ the Three Commissioners would easily satisfy even that standard,” CVS wrote in a 23-page motion.

Meanwhile, UnitedHealth’s 17-page motion said, “Any judge who made these remarks about a litigant at the outset of a lawsuit would immediately need to recuse for blatant bias.”

Cigna, in one of three motions filed, said Khan has “prejudged the facts and law relating to this action.”

“She has repeatedly and wrongly asserted that PBMs ‘control’ drug pricing and patient access to drugs,” Cigna said.

The FTC filed its complaint through its so-called administrative process, which initiates a proceeding before an administrative judge at the agency who would hear the case and issue an opinion. FTC commissioners then vote on that opinion.

The FTC on Wednesday declined CNBC’s request for comment on the motion. 

Other corporate giants, including Amazon and Meta, have unsuccessfully pushed for Khan to be disqualified from previous cases or investigations, citing concerns about her objectivity. Khan has resisted those calls, saying she has never prejudged any case or set of facts. 

The FTC filed the suit last month against the three largest PBMs, CVS Health’s Caremark, UnitedHealth Group‘s Optum Rx and Cigna‘s Express Scripts. All are owned by or connected to health insurers and collectively administer about 80% of the nation’s prescriptions, according to the FTC. 

PBMs sit at the center of the drug supply chain in the U.S., negotiating medication rebates with manufacturers on behalf of insurers, creating lists of preferred medications covered by health plans and reimbursing pharmacies for prescriptions. The FTC has been investigating PBMs and their role in insulin prices since 2022.

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