UNITED STATES OF AMERICA

Federal Trade Commission

WASHINGTON, D.C. 20580

Office of Commissioner

Rebecca Kelly Slaughter

1

STATEMENT OF COMMISSIONER REBECCA KELLY SLAUGHTER

Regarding the Policy Statement of the Federal Trade Commission on Rebates and Fees in 

Exchange for Excluding Lower-Cost Drug Products

June 16, 2022

I’m pleased to support the Commission’s Policy Statement on Rebates and Fees in Exchange for 

Excluding Lower-Cost Drug Products (“Statement”). This Statement affirms the Commission’s 

commitment to use its full authority under the FTC Act to help tackle the illegal practices that 

result in high drug prices or reduced innovation. 

I won’t rehash the Statement, but I’d like to emphasize three points:

First, insulin is a case study in the constellation of challenges that surround America’s health 

care crisis – access, equity, intermediaries, interchangeability, and patent evergreening, to name 

a few. The stories we have heard about diabetics risking their lives by forgoing pricey insulin are 

nothing short of horrifying. Exorbitant insulin pricing is even more disturbing from a racial and 

health equity standpoint. In 2020, the Center for Disease Control and Prevention reported that 

non-Hispanic Black people and people of Hispanic origin respectively had a 50 percent and 

nearly 100 percent higher incidence of diabetes compared to non-Hispanic white people.1 In

addition, the un- and under-insured are disproportionately people of color. This means that high 

cash prices, high copays, high deductibles, and the Medicare Part D coverage gap exacerbate 

problems for these populations in particular, including reduced access and adherence to 

medication. Layered on top of existing health inequities, the resulting reality of untreated 

diabetes leads to higher medical costs as well as greater risk of complications, hospitalization, 

and death for these vulnerable populations.

Yesterday, at the Pharma Task Force Workshop, we heard compelling commentary from Raksha 

Kopparam of the Washington Center for Equitable Growth about health inequity, systemic 

racism in healthcare, and the disproportionate harm high drug prices can have on vulnerable and 

underserved communities. Insulin is only one example of the markets I think the FTC should 

prioritize in addressing harms that disproportionately affect communities of color. 

Second, as we work to unpack the potential legal issues related to rebating, the FTC should

consider theories that encompass the full breadth of the FTC’s authority, both competition and 

consumer protection related. On the competition side, this includes conduct that violates Section 

5’s prohibition on unfair methods of competition, or that may violate the Robinson Patman Act.

1

 CTR. FOR DISEASE CONTROL, NATIONAL DIABETES STATISTICS REPORT (2020), 

cdc.gov/diabetes/pdfs/data/statistics/national-diabetes-statistics-report.pdf.
2

We may also find that our authority to stop unfair or deceptive acts and practices maps onto 

misconduct in pharmaceutical pricing practices. For example, when we sued Martin Shkreli for 

his anticompetitive scheme to hike the price of Daraprim, I wrote that our unfairness authority 

could apply in that or other cases where conduct causes substantial injury to consumers, the 

injury is not reasonably avoidable, and there are no countervailing benefits to competition or 

consumers.2 In addition, as the FTC and FDA committed in a 2020 statement, both agencies will 

work together, using their respective authorities, to take appropriate steps to address false or

misleading statements and promotional communications by biological product manufacturers.3

While we need to be thorough in finding ways to tackle high insulin prices through enforcement, 

I want to be clear to the public about expectations. Investigations take time. It’s important that 

staff has the time and space to follow the facts where they lead. The FTC can scour all the 

relevant documents and take hours of the testimony, but at the end of the day we need legal 

theories and sufficient evidence to support them. Unlike enforcement investigations that are nonpublic, the Commission can undertake studies using our 6(b) authority and present the results to 

the public.4 As a result, the PBM 6(b) orders that the Commission authorized last week will 

serve as an important complement to our enforcement authority in this space by helping the 

agency and the public understand the opaque and complex web of challenges that are pervasive 

in the U.S. pharmaceutical market. 

Finally, the path to untangling the problem of high drug prices is paved with multiple entities

that play a role in the underlying cost structure and resulting prices stakeholders pay.5 While 

today’s Commission Statement focuses on PBMs, I want to be clear that pharmaceutical

manufacturers and other market participants are not off the hook if they have violated the law. 

I’m proud of the Commission’s efforts to better understand PBMs and pharmaceutical pricing. 

Patients of insulin and other life-saving prescription drugs, as well as their healthcare providers, 

will benefit greatly. I look forward to working with the FTC’s staff and my colleagues on these 

issues. 

2 Statement of Commissioner Rebecca Kelly Slaughter in the Matter of Vyera Pharmaceuticals, Federal Trade 

Commission (Jan. 27 2020),

https://www.ftc.gov/system/files/documents/public_statements/1564517/2020_01_27_final_rks_daraprim_concurrin

g_statement.pdf.

3 See FED. TRADE COMM’N, JOINT FDA-FTC STATEMENT REGARDING COLLABORATION TO ADVANCE COMPETITION 

IN THE BIOLOGIC MARKETPLACE (Feb. 3, 2020) 

https://www.ftc.gov/system/files/documents/public_statements/1565273/v190003fdaftcbiologicsstatement.pdf.

4 See 15. U.S.C. § 46(f). 5 See STAFF OF H.R. COMM. ON OVERSIGHT AND REFORM, DRUG PRICING INVESTIGATION (Dec. 10, 2021) 

https://oversight.house.gov/sites/democrats.oversight.house.gov/files/DRUG%20PRICING%20REPORT%20WITH

%20APPENDIX%20v3.pdf; STAFF OF S. FIN. COMM., INSULIN: EXAMINING THE FACTORS DRIVING THE RISING 

COST OF A CENTURY OLD DRUG (Jan. 14, 2020) https://www.finance.senate.gov/chairmans-news/grassley-wydenrelease-insulin-investigation-uncovering-business-practices-between-drug-companies-and-pbms-that-keep-priceshigh.