UNITED STATES OF AMERICA

Federal Trade Commission

WASHINGTON, D.C. 20580

Statement of Commissioner Christine S. Wilson

Regarding the Policy Statement of the Federal Trade Commission on 

Rebates and Fees in Exchange for Excluding Lower Cost Drug Products

June 16, 2022

Health care spending accounted for 19.7 percent of the nation's GDP in 2020.1

Recognizing that health care issues have a daily and frequently significant impact on 

consumers, the FTC has long pursued a comprehensive agenda to address unlawful conduct in 

the health care space generally,2 and in the pharmaceutical space specifically.3 According to 

one analysis, over 45% of non-merger antitrust complaints filed by the FTC since 2009 were 

in health care industries, and over half of those complaints were in the pharma space.4 In 

addition, the agency carefully screens pharmaceutical mergers,5 combats anticompetitive 

1 Historical National Health Expenditure Data, CENTERS FOR MEDICARE & MEDICAID SERVICES, 

https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-andReports/NationalHealthExpendData/NationalHealthAccountsHistorical#:~:text=The%20data%20are%20presented

%20by,spending%20accounted%20for%2019.7%20percent (last visited June 14, 2022). 

2 For an overview of FTC actions in the health care space generally, see FED. TRADE COMM’N, OVERVIEW OF FTC

ACTIONS IN HEALTH CARE SERVICES AND PRODUCTS (Apr. 2022), 

https://www.ftc.gov/system/files/ftc_gov/pdf/2022.04.08%20Overview%20Healthcare%20%28final%29.pdf. 

3 FED. TRADE COMM’N, OVERVIEW OF FTC ACTIONS IN PHARMACEUTICAL PRODUCTS AND DISTRIBUTION (Apr. 

2022), https://www.ftc.gov/system/files/ftc_gov/pdf/2022.04.08%20Overview%20Pharma%20%28final%29.pdf. 

4 Nearly half of FTC antitrust complaints in healthcare industries – Analytics, PARR (June 14, 2022), 

https://app.parr-global.com/intelligence/view/intelcmsmszmc7?utm_source=Notifications&utm_medium=Email&utm_campaign=Alert&utm_term=5bd82c78ea4893001d

f3da2f&ssouid=B9B89930-CE7C-4730-9604-7F1B0EAD2165. 

5 See, e.g., ANI Pharmaceuticals, Inc./Novitium Pharma LLC, C-4754, FTC File No. 211-0101, (final order 

approved January 12, 2022); Bristol-Myers Squibb Company/Celgene Corporation, C-4690, FTC File No. 191-

0061, (complaint filed November 15, 2019; final order issued January 13, 2020; modification of settlement approved 

November 12, 2021); Pfizer Inc./Mylan N.V., C-4727, FTC File No. 1910182 (proposed consent order issued 

October 30, 2020; final order issued January 28, 2021); AbbVie Inc. /Allergan plc, FTC File No. 1910169 (proposed 

final order accepted for public comment on May 5, 2020); Amneal Pharmaceuticals LLC/Impax Laboratories Inc., 

C-4650, FTC File No. 1810017 (final order approved on July 10, 2018); Baxter Int’l Inc., Dkt. No. C-4620 (F.T.C. 

July 20, 2017); FTC v. Mallinckrodt ARD Inc., No. 1:17-cv-00120 (D.D.C. Jan. 18, 2017); Mylan, N.V., Dkt. No. 

C-4590 (F.T.C. July 26, 2016); Teva Pharmaceutical Indus. Ltd., Dkt. No. C-4589 (F.T.C. July 26, 2016); Hikma 

Pharmaceuticals PLC, Dkt. No. C-4572 (F.T.C. Mar. 28, 2016); Hikma Pharmaceuticals PLC, Dkt. No. C-4568 

(F.T.C. Feb. 26, 2016); Lupin Ltd., Dkt. No. C-4566 (F.T.C. Feb. 18, 2016); Endo Int’l PLC, Dkt. No. C-4539 

(F.T.C. Sept. 24, 2015); Pfizer Inc., Dkt. No. C-4537 (F.T.C. Aug. 21, 2015); Impax Labs, Inc., Dkt. No. C-4511 

(F.T.C. Mar. 5, 2015); Novartis AG, Dkt. No. C-4510 (F.T.C. Feb. 20, 2015); Sun Pharmaceutical Indus. Ltd, Dkt. 

No. C-4506 (F.T.C. Jan. 30, 2015).
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patent litigation settlements,6 seeks to halt the abuse of FDA regulatory processes,7 works 

closely with the FDA to promote competition in pharma,8 and challenges novel

anticompetitive strategies as they arise.9

The FTC also continuously seeks to improve its understanding of the competitive 

dynamics in these markets through studies, workshops, hearings, and roundtables. For 

example, the FTC studied generic drug competition in 2002,10 many aspects of the health care

industry in the Antitrust & Health Care Hearings in 2003,11 the PBM industry in 2005,12

follow-on biologic drug competition in 200913 and again in 2014,14 authorized generics in 

6 See, e.g., Impax Laboratories, Inc., D-9373, FTC File No. 1410004 (complaint filed January 19, 2017; initial 

decision May 18, 2018; Commission opinion and final order issued March 28, 2019; affirmed by U.S. Court of 

Appeals for the Fifth Circuit April 13, 2021); FTC v. Actavis, Inc., 570 U.S. 136 (2013).

7 See, e.g., FTC v. AbbVie Inc., et al., 329 F. Supp. 3d 98 (E.D. Pa. 2018), aff’d in part, rev’d in part and remanded, 

976 F.3d 327 (3d Cir. 2020), cert. denied sub nom., AbbVie Inc. v. FTC, No. 20-1293, 2021 WL 2519407, at *1 

(U.S. June 21, 2021); (global settlement entered with Teva February 19, 2019; reverse payment claim against 

AbbVie withdrawn July 30, 2021).

8 Joint Statement of the Food & Drug Administration and the Federal Trade Commission Regarding a Collaboration 

to Advance Competition in the Biologic Marketplace, FED. TRADE COMM’N & FOOD & DRUG ADMIN. (Feb. 3, 

2020), https://www.fda.gov/media/134864/download; Emerging Health Care Competition and Consumer Issues: 

Competition Issues Involving Follow-on Biologic Drugs, FED. TRADE COMM’N. (Nov. 21, 2008),

https://www.ftc.gov/news-events/events/2008/11/emerging-health-care-competition-consumer-issues-competitionissues-involving-follow-biologic-drugs. 

9 See, e.g., FTC, et al. v. Vyera Pharmaceuticals, LLC, et al., No. 20-cv-00706, FTC File No. 161-0001 (complaint 

issued January 27, 2020; amended complaint filed on April 14, 2020; stipulated order for permanent injunction 

issued December 7, 2021; 2022 WL 135026 (S.D.N.Y. Jan. 14, 2022)); See Joint Motion for Entry of Stipulated 

Order for Permanent Injunction and Equitable Monetary Relief, FTC v. Reckitt Benckiser Group, PLC, No. 1:19-cv00028 (W.D. Va. filed July 11, 2019).

10 FED. TRADE COMM’N, GENERIC DRUG ENTRY PRIOR TO PATENT EXPIRATION: AN FTC STUDY (July 2002), 

https://www.ftc.gov/sites/default/files/documents/reports/generic-drug-entry-prior-patent-expiration-ftcstudy/genericdrugstudy_0.pdf.

11 Health Care and Competition Law and Policy Hearings, FED. TRADE COMM’N & DEP’T OF JUST. (Feb. 26, 2003), 

https://www.ftc.gov/news-events/events/2003/02/health-care-competition-law-policy-hearings.

12 FED. TRADE COMM’N, PHARMACY BENEFIT MANAGERS: OWNERSHIP OF MAIL-ORDER PHARMACIES (Aug. 2005), 

https://www.ftc.gov/sites/default/files/documents/reports/pharmacy-benefit-managers-ownership-mail-orderpharmacies-federal-trade-commission-report/050906pharmbenefitrpt_0.pdf. 

13 FED. TRADE COMM’N, EMERGING HEALTH CARE ISSUES: FOLLOW-ON BIOLOGIC DRUG COMPETITION (June 2009), 

https://www.ftc.gov/sites/default/files/documents/reports/emerging-health-care-issues-follow-biologic-drugcompetition-federal-trade-commission-report/p083901biologicsreport.pdf.

14 Follow-On Biologics Workshop: Impact of Recent Legislative and Regulatory Naming Proposals on Competition,

FED. TRADE COMM’N (Feb. 4, 2014), https://www.ftc.gov/news-events/events/2014/02/follow-biologicsworkshop-impact-recent-legislative-regulatory-naming-proposals-competition. 
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2011,15 and entry and supply chain dynamics in prescription drug markets in 2017.16 More 

recently, in 2018, the FTC joined HHS, the Department of the Treasury, and the Department 

of Labor in issuing a report on “Reforming America’s Healthcare System Through Choice and 

Competition”17 and launched studies on physician group and health care facility mergers18 and 

certificates of public advantage.19

On June 7, 2022, the Commission launched a 6(b) study of the PBM industry.20 That 

study will examine insulin and other prescription drugs, including the costs and fees 

associated with these drugs and how the use of formularies, rebates, and other mechanisms

impacts consumers who depend on these prescriptions.21 I look forward to the results of that 

study.

I want to thank FTC staff for their unsung work in the health care space generally, and in 

the pharma industry specifically. Resources are scarce, and the requests from the Commission, 

Congress, and other stakeholders can seem limitless. But the FTC is blessed with seasoned and 

dedicated professionals who choose to devote their time to protecting consumers and 

competition, and I have no doubt staff will continue to rise to the challenges ahead.

I also want to thank Chair Khan for facilitating a collaborative drafting process for this 

policy statement. The document underwent multiple rounds of edits and was the subject of 

many internal discussions. I believe that process matters, and that the work of the FTC is 

stronger when all views and thoughts are considered. 

15 FED. TRADE COMM’N, AUTHORIZED GENERIC DRUGS: SHORT-TERM EFFECTS AND LONG-TERM IMPACT (Aug. 

2011), https://www.ftc.gov/sites/default/files/documents/reports/authorized-generic-drugs-short-term-effects-andlong-term-impact-report-federal-trade-commission/authorized-generic-drugs-short-term-effects-and-long-termimpact-report-federal-trade-commission.pdf. 

16 Understanding Competition in Prescription Drug Markets: Entry and Supply Chain Dynamics, FED. TRADE 

COMM’N (Nov. 8 2017), https://www.ftc.gov/news-events/events/2017/11/understanding-competition-prescriptiondrug-markets-entry-supply-chain-dynamics.

17 U.S. DEP’T OF HEALTH & HUMAN SERVICES, REFORMING AMERICA’S HEALTHCARE SYSTEM THROUGH CHOICE 

AND COMPETITION (Dec. 3, 2018), https://www.hhs.gov/sites/default/files/Reforming-Americas-Healthcare-SystemThrough-Choice-and-Competition.pdf (“We are pleased to provide you with this report, prepared by the Department 

of Health and Human Services (HHS) in collaboration with the Departments of the Treasury and Labor, the Federal 

Trade Commission, and several offices within the White House”).

18 Press Release, Fed. Trade Comm’n, FTC to Study the Impact of Physician Group and Healthcare Facility Mergers 

(April 14, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/01/ftc-study-impact-physician-grouphealthcare-facility-mergers.

19 Press Release, Fed. Trade Comm’n, FTC to Study the Impact of COPAs (Oct. 21, 2019), 

https://www.ftc.gov/news-events/news/press-releases/2019/10/ftc-study-impact-copas. 

20 Press Release, Fed. Trade Comm’n, FTC Launches Inquiry Into Prescription Drug Middlemen Industry (June 7, 

2022), https://www.ftc.gov/news-events/news/press-releases/2022/06/ftc-launches-inquiry-prescription-drugmiddlemen-industry.

21 Order to File A Special Report, FTC File No. P221200 (June 6, 2022), 

https://www.ftc.gov/system/files/ftc_gov/pdf/P221200PBMModelOrder.pdf. 
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The rebate and fee issues in pharma, and especially for insulin, are clearly an area worthy 

of investigation. Today’s policy statement reiterates the role and ability of the antitrust laws to 

bring enforcement actions when appropriate in this space. I have previously expressed concerns 

that policy statements can give the illusion of taking action, and can provide cover for skipping 

the hard work that is required of us.22 Issuing a policy statement cannot replace the work of 

conducting an investigation and bringing an enforcement action when necessary. I hope that 

sufficient resources are dedicated to ensuring that enforcement actions in this area can be 

brought if the Commission has reason to believe there are unlawful practices in this space.

Some observers may be surprised to see Section 2(c) of the Robinson-Patman Act 

included in this policy. The role of the FTC is to protect competition and consumers. The 

Robinson-Patman Act has been used in ways that elevate protection of rivals over benefits to 

consumers.23 I oppose using Robinson-Patman in ways other than protecting consumers and 

competition; I support enforcing the Robinson Patman Act where doing so would protect 

competition and consumers. 

22 Christine S. Wilson, Oral Remarks – Open Commission Meeting May 19, 2022 at 4-5, 

https://www.ftc.gov/system/files/ftc_gov/pdf/P155401WilsonRemarks_0.pdf. 

23 Robert T. Pitofsky, Antitrust at the Turn of the Twenty-First Century: A View from the Middle, 76 ST. JOHN’S L.

REV. 583, 586 & 588 (2002), 

https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1357&context=lawreview (“There will always be 

outliers – for example, people on the enforcement margin who believe that virtually all mergers among large firms 

should be blocked and people on the free market margin who believe that cartels are unstable, self-containing, and 

need not be challenged by the government. But a broad range of informed people now finds common ground 

between those extremes. ... Price discrimination is almost never an anti-consumer strategy and, therefore, challenges 

to price discrimination under the Sherman Act, and particularly according to the quasi-per se rules of the RobinsonPatman Act, should be approached with great caution.”).