II 

110TH CONGRESS 

1ST SESSION S. 885 

To ensure and foster continued patient safety and quality of care by making 

the antitrust laws apply to negotiations between groups of independent 

pharmacies and health plans and health insurance issuers in the same 

manner as such laws apply to collective bargaining by labor organizations 

under the National Labor Relations Act. 

IN THE SENATE OF THE UNITED STATES 

MARCH 14, 2007 

Mr. ISAKSON introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To ensure and foster continued patient safety and quality 

of care by making the antitrust laws apply to negotiations between groups of independent pharmacies and 

health plans and health insurance issuers in the same 

manner as such laws apply to collective bargaining by 

labor organizations under the National Labor Relations 

Act. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Community Pharmacy 

5 Fairness Act of 2007’’. 


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1 SEC. 2. APPLICATION OF THE ANTITRUST LAWS TO INDE2 PENDENT PHARMACIES NEGOTIATING WITH 

3 HEALTH PLANS. 

4 (a) IN GENERAL.—Any independent pharmacies who 

5 are engaged in negotiations with a health plan regarding 

6 the terms of any contract under which the pharmacies pro7 vide health care items or services for which benefits are 

8 provided under such plan shall, in connection with such 

9 negotiations, be entitled to the same treatment under the 

10 antitrust laws as the treatment to which bargaining units 

11 which are recognized under the National Labor Relations 

12 Act are entitled in connection with such collective bar13 gaining. Such a pharmacy shall, only in connection with 

14 such negotiations, be treated as an employee engaged in 

15 concerted activities and shall not be regarded as having 

16 the status of an employer, independent contractor, mana17 gerial employee, or supervisor. 

18 (b) PROTECTION FOR GOOD FAITH ACTIONS.—Ac19 tions taken in good faith reliance on subsection (a) shall 

20 not be the subject under the antitrust laws of criminal 

21 sanctions nor of any civil damages, fees, or penalties be22 yond actual damages incurred. 

23 (c) LIMITATION.— 

24 (1) NO NEW RIGHT FOR COLLECTIVE CES25 SATION OF SERVICE.—The exemption provided in 

26 subsection (a) shall not confer any new right to parVerDate Aug 31 2005 04:31 Mar 15, 2007 Jkt 059200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S885.IS S885

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1 ticipate in any collective cessation of service to pa2 tients not already permitted by existing law. 

3 (2) NO CHANGE IN NATIONAL LABOR RELA4 TIONS ACT.—This section applies only to inde5 pendent pharmacies excluded from the National 

6 Labor Relations Act. Nothing in this section shall be 

7 construed as changing or amending any provision of 

8 the National Labor Relations Act, or as affecting 

9 the status of any group of persons under that Act. 

10 (d) EFFECTIVE DATE.—The exemption provided in 

11 subsection (a) shall apply to conduct occurring beginning 

12 on the date of the enactment of this Act. 

13 (e) LIMITATION ON EXEMPTION.—Nothing in this 

14 section shall exempt from the application of the antitrust 

15 laws any agreement or otherwise unlawful conspiracy that 

16 excludes, limits the participation or reimbursement of, or 

17 otherwise limits the scope of services to be provided by 

18 any independent pharmacy or group of independent phar19 macies with respect to the performance of services that 

20 are within their scope of practice as defined or permitted 

21 by relevant law or regulation. 

22 (f) NO EFFECT ON TITLE VI OF CIVIL RIGHTS ACT

23 OF 1964.—Nothing in this section shall be construed to 

24 affect the application of title VI of the Civil Rights Act 

25 of 1964. 


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1 (g) NO APPLICATION TO FEDERAL PROGRAMS.— 

2 Nothing in this section shall apply to negotiations between 

3 independent pharmacies and health plans pertaining to 

4 benefits provided under any of the following: 

5 (1) The Medicaid Program under title XIX of 

6 the Social Security Act (42 U.S.C. 1396 et seq.). 

7 (2) The SCHIP program under title XXI of the 

8 Social Security Act (42 U.S.C. 1397aa et seq.). 

9 (3) Chapter 55 of title 10, United States Code 

10 (relating to medical and dental care for members of 

11 the uniformed services). 

12 (4) Chapter 17 of title 38, United States Code 

13 (relating to Veterans’ medical care). 

14 (5) Chapter 89 of title 5, United States Code 

15 (relating to the Federal employees’ health benefits 

16 program). 

17 (6) The Indian Health Care Improvement Act 

18 (25 U.S.C. 1601 et seq.). 

19 (h) DEFINITIONS.—For purposes of this section: 

20 (1) ANTITRUST LAWS.—The term ‘‘antitrust 

21 laws’’— 

22 (A) has the meaning given it in subsection 

23 (a) of the first section of the Clayton Act (15 

24 U.S.C. 12(a)), except that such term includes 

25 section 5 of the Federal Trade Commission Act 


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1 (15 U.S.C. 45) to the extent such section 5 ap2 plies to unfair methods of competition; and 

3 (B) includes any State law similar to the 

4 laws referred to in subparagraph (A). 

5 (2) HEALTH PLAN AND RELATED TERMS.— 

6 (A) IN GENERAL.—The term ‘‘health plan’’ 

7 means a group health plan or a health insur8 ance issuer that is offering health insurance 

9 coverage. 

10 (B) HEALTH INSURANCE COVERAGE; 

11 HEALTH INSURANCE ISSUER.—The terms 

12 ‘‘health insurance coverage’’ and ‘‘health insur13 ance issuer’’ have the meanings given such 

14 terms under paragraphs (1) and (2), respec15 tively, of section 733(b) of the Employee Retire16 ment Income Security Act of 1974 (29 U.S.C. 

17 1191b(b)). 

18 (C) GROUP HEALTH PLAN.—The term 

19 ‘‘group health plan’’ has the meaning given that 

20 term in section 733(a)(1) of the Employee Re21 tirement Income Security Act of 1974 (29 

22 U.S.C. 1191b(a)(1)). 

23 (3) INDEPENDENT PHARMACY.—The term 

24 ‘‘independent pharmacy’’ means a pharmacy which 

25 is not owned (or operated) by a publicly traded comVerDate Aug 31 2005 04:31 Mar 15, 2007 Jkt 059200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S885.IS S885

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1 pany. For purposes of the previous sentence, the 

2 term ‘‘publicly traded company’’ means a company 

3 that is an issuer within the meaning of section 

4 2(a)(7) of the Sarbanes-Oxley Act of 2002 (15 

5 U.S.C. 7201(a)(7)). 

Æ 


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