UNITED STATES OF AMERICA 

Federal Trade Commission 

WASHINGTON, D.C. 20580 

Office of Commissioner 

Rebecca Kelly Slaughter 

Statement of Commissioner Rebecca Kelly Slaughter 

Regarding the Commission Statement on Reliance on Prior PBM-Related 

Advocacy Statements and Reports that No Longer Reflect Current Market Realities 

As Prepared for Delivery 

Federal Trade Commission Open Meeting 

July 20, 2023 

Thank you to our hard-working staff in the Office of Policy Coordination for your ongoing 

work on the PBM 6(b) Study and crafting today’s Commission Statement. Additional thanks go 

to staff in the Bureau of Competition who also worked on today’s Statement. 

I am pleased to support the Commission’s Statement Concerning Reliance on Prior PBMRelated Advocacy Statements and Reports That No Longer Reflect Current Market Realities for 

two primary reasons. First, it advances the Commission’s commitment to providing the public 

clarity on our competition enforcement and policies. And second, staying silent on the risk of 

misplaced reliance on our outdated PBM guidance may significantly harm patients and other 

stakeholders in healthcare markets. 

Principles of transparency and good government make it incumbent on the Commission to 

notify the public of business practices we identify as potentially unlawful, and to update our 

notice and guidance as our understanding of markets evolves. Consistent with that obligation, the 

Commission should inform the public when our prior policy guidance may no longer reflect our 

current learning and experience. That is the case here. 

Between 2004 and 2017 the Commission published or issued eleven letters and reports that 

advocated against implementing mandatory disclosure and transparency requirements on PBMs. 

These materials primarily relied on the understanding that the structure of relevant healthcare 

markets was sufficiently competitive and that mandating certain disclosures by PBMs risked 

unintended anticompetitive consequences, including collusion among PBMs. However, during 

this period, several experts questioned the accuracy of the information and analyses underlying 

the Commission’s conclusions. Among them was then FTC Commissioner Julie Brill. In an 

August 2014 letter to the U.S. Department of Labor’s ERISA Advisory Council, Commissioner 

Brill cautioned the Council against relying on prior FTC advocacy and reports that advised 

against imposing mandatory compensation and fee disclosures on PBMs. 1

 In addition to 

describing as “questionable” the level of competition in the PBM market at the time, she noted 

that PBM study released by the FTC in 2005 in particular was “quite old at this point, and could 

1 Letter from Comm’r Julie Brill to Larry Good, Executive Secretary ERISA Advisory Council, U.S. Dep’t of Labor 

(Aug. 19, 2014), https://www.ftc.gov/system/files/documents/public_statements/579031/140819erisaletter.pdf 

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not have taken into account the significant changes that have occurred in the market since 

2005.” 2 

Since Commissioner Brill expressed her concerns in 2014, the competitively troubling 

changes in the PBM market have increased significantly. To name a few, vertical integration and 

horizontal concentration among payers, PBMs, pharmacies and providers have accelerated while 

the number of independent pharmacies and visibility into PBM contracting practices have 

decreased; and list prices and patients’ out-of-pocket costs for prescription drugs have increased 

as PBM rebates and fees have mushroomed. 

In light of these troubling market developments, the Commission authorized in June 2022, a 

study under Section 6(b) of the FTC Act of certain PBM market structures and practices.

3 This 

ongoing study is an important step towards helping the Commission identify and understand what 

roles PBMs play in contributing to the opaque and complex web of challenges that adversely affect 

price, quality, consumer choice, and competition in the U.S. pharmaceutical market. 

I know many observers—myself included—eagerly anticipate the results of that study. 

However, we do not need to wait for it to be completed to update the public on what we already 

know to be true: the Commission’s prior PBM statements do not reflect contemporary market 

realities. The update is necessary given the substantial costs patients may bear if policy makers, 

other government agencies, academics, or market participants rely upon outdated Commission 

advocacy as the basis for not advancing solutions to any anticompetitive market outcomes driven 

by PBM compensation and fee practices. 

For these reasons, I wholeheartedly support approval and issuance of the Commission’s 

Statement Concerning Reliance on Prior PBM-Related Advocacy Statements and Reports That 

No Longer Reflect Current Market Realities. Thank you. 

2 Id. 

3 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. 

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