Dissenting commissioner calls the PBM merger a "game changer".
April 4, 2012—The Federal Trade Commission has closed its investigation of the proposed acquisition of pharmacy benefits manager (PBM) Medco Health Solutions by Express Scripts, clearing the way for the merger of two of the nation's largest PBMs.
The April 2 vote to end the investigation was 3 to 1, with Commissioner Julie Brill dissenting. An earlier motion by Chairman Jon Leibowitz to solicit public comment on a proposed consent agreement that would have prohibited Express Scripts from engaging in certain potentially anti-competitive conduct failed to receive the support of the majority of the commission and was withdrawn.
The commission majority said the investigation "revealed a competitive market for PBM services characterized by numerous, vigorous competitors who are expanding and winning business from traditional market leaders."
"The acquisition of Medco by Express Scripts will likely not change these dynamics: the merging parties are not particularly close competitors, the market today is not conducive to coordinated interaction, and there is little risk of the merged company exercising monopsony power," the majority said.
In her dissenting statement, Brill described the merger as an industry "game changer" that creates a "merger to duopoly" between the merged ESI/Medco and CVS Caremark, "with few efficiencies and high entry barriers — something no court has ever approved." Brill called on the commission to conduct a retrospective study on the merger in three years' time.
"Our merger is exactly what the country needs now," said George Paz, chairman and chief executive officer of Express Scripts, in a statement announcing his company's completion of its $29 billion acquisition of Medco. "It represents the next chapter of our mission to lower costs, drive out waste in health care, and improve patient health. We remain focused on formulary management, channel management, and closing gaps in care, which will allow us to further improve the health of people with chronic and complex medical conditions."
The National Community Pharmacists Association (NCPA), the National Association of Chain Drug Stores (NACDS), and nine other pharmacies filed suit against the merger in federal district court on March 29 and are seeking a temporary restraining order.
Hospitals enrolled in the 340B drug discount program asked the FTC in February to challenge the merger, saying it would undermine their safety-net mission and further reduce their access to specialty medications at 340B prices.The Independent Specialty Pharmacy Coalition (ISPC) also urged the FTC not to approve of the merger. The group represents specialized pharmacies for patients with chronic conditions such as hepatitis, hemophilia, multiple sclerosis, severe rheumatoid arthritis, and cancer.