I 

112TH CONGRESS 

1ST SESSION H. R. 1839 

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 (including 

health plans under parts C and D of the Medicare Program) in the 

same manner as such laws apply to protected activities under the National Labor Relations Act. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 11, 2011 

Mr. WEINER introduced the following bill; which was 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 (including 

health plans under parts C and D of the Medicare Program) in the same manner as such laws apply to protected activities 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, 


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1 SECTION 1. SHORT TITLE. 

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

3 Fairness Act of 2011’’. 

4 SEC. 2. APPLICATION OF THE ANTITRUST LAWS TO INDE5 PENDENT PHARMACIES NEGOTIATING WITH 

6 HEALTH PLANS. 

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

8 are engaged in negotiations with a health plan regarding 

9 the terms of any contract under which the pharmacies pro10 vide health care items or services for which benefits are 

11 provided under such plan shall, in connection with such 

12 negotiations, be entitled to the same treatment under the 

13 antitrust laws as the treatment to which bargaining units 

14 which are recognized under the National Labor Relations 

15 Act are entitled in connection with activities described in 

16 section 7 of such Act. Such a pharmacy shall, only in con17 nection with such negotiations, be treated as an employee 

18 engaged in concerted activities and shall not be regarded 

19 as having the status of an employer, independent con20 tractor, managerial employee, or supervisor. 

21 (b) PROTECTION FOR GOOD FAITH ACTIONS.—Ac22 tions taken in good faith reliance on subsection (a) shall 

23 not be the subject under the antitrust laws of criminal 

24 sanctions nor of any civil damages, fees, or penalties be25 yond actual damages incurred. 


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1 (c) NO CHANGE IN NATIONAL LABOR RELATIONS

2 ACT.—This section applies only to independent phar3 macies excluded from the National Labor Relations Act. 

4 Nothing in this section shall be construed as changing or 

5 amending any provision of the National Labor Relations 

6 Act, or as affecting the status of any group of persons 

7 under that Act. 

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

9 subsection (a) shall apply to conduct occurring beginning 

10 on the date of the enactment of this Act. 

11 (e) LIMITATIONS ON EXEMPTION.—Nothing in this 

12 section shall exempt from the application of the antitrust 

13 laws any agreement or otherwise unlawful conspiracy 

14 that— 

15 (1) would have the effect of boycotting any 

16 independent pharmacy or group of independent 

17 pharmacies, or would exclude, limit the participation 

18 or reimbursement of, or otherwise limit the scope of 

19 services to be provided by, any independent phar20 macy or group of independent pharmacies with re21 spect to the performance of services that are within 

22 the scope of practice as defined or permitted by rel23 evant law or regulation; 

24 (2) allocates a market among competitors; 


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1 (3) unlawfully ties the sale or purchase of one 

2 product or service to the sale or purchase of another 

3 product or service; or 

4 (4) monopolizes or attempts to monopolize a 

5 market. 

6 (f) LIMITATION BASED ON MARKET SHARE OF

7 GROUP.—This section shall not apply with respect to the 

8 negotiations of any group of independent pharmacies with 

9 a health plan regarding the terms of any contract under 

10 which such pharmacies provide health care items or serv11 ices for which benefits are provided under such plan in 

12 a PDP region (as defined in subsection (j)(4)) if the num13 ber of pharmacy licenses of such pharmacies within such 

14 group in such region exceeds 25 percent of the total num15 ber of pharmacy licenses issued to all retail pharmacies 

16 (including both independent and other pharmacies) in 

17 such region. 

18 (g) NO EFFECT ON TITLE VI OF CIVIL RIGHTS ACT

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

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

21 of 1964. 

22 (h) NO APPLICATION TO SPECIFIED FEDERAL PRO23 GRAMS.—Nothing in this section shall apply to negotia24 tions between independent pharmacies and health plans 

25 pertaining to benefits provided under any of the following: 


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1 (1) The Medicaid Program under title XIX of 

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

3 (2) The State Children’s Health Insurance Pro4 gram (SHIP) under title XXI of the Social Security 

5 Act (42 U.S.C. 1397aa et seq.). 

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

7 (relating to medical and dental care for members of 

8 the uniformed services). 

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

10 (relating to Veterans’ medical care). 

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

12 (relating to the Federal employees’ health benefits 

13 program). 

14 (6) The Indian Health Care Improvement Act 

15 (25 U.S.C. 1601 et seq.). 

16 (i) DEFINITIONS.—For purposes of this section: 

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

18 laws’’— 

19 (A) has the meaning given it in subsection 

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

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

22 section 5 of the Federal Trade Commission Act 

23 (15 U.S.C. 45) to the extent such section 5 ap24 plies to unfair methods of competition; and 


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1 (B) includes any State law similar to the 

2 laws referred to in subparagraph (A). 

3 (2) HEALTH PLAN AND RELATED TERMS.— 

4 (A) IN GENERAL.—The term ‘‘health 

5 plan’’— 

6 (i) means a group health plan or a 

7 health insurance issuer that is offering 

8 health insurance coverage; 

9 (ii) includes any entity that con10 tracts with such a plan or issuer for the 

11 administering of services under the plan or 

12 coverage; and 

13 (iii) includes a prescription drug plan 

14 offered under part D of title XVIII of the 

15 Social Security Act and a Medicare Advan16 tage plan offered under part C of such 

17 title. 

18 (B) HEALTH INSURANCE COVERAGE; 

19 HEALTH INSURANCE ISSUER.—The terms 

20 ‘‘health insurance coverage’’ and ‘‘health insur21 ance issuer’’ have the meanings given such 

22 terms under paragraphs (1) and (2), respec23 tively, of section 733(b) of the Employee Retire24 ment Income Security Act of 1974 (29 U.S.C. 

25 1191b(b)). 


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1 (C) GROUP HEALTH PLAN.—The term 

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

3 term in section 733(a)(1) of the Employee Re4 tirement Income Security Act of 1974 (29 

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

6 (3) INDEPENDENT PHARMACY.—The term 

7 ‘‘independent pharmacy’’ means a pharmacy that 

8 has a market share of— 

9 (A) less than 10 percent in any PDP re10 gion; and 

11 (B) less than 1 percent in the United 

12 States. 

13 For purposes of the preceding sentence, all phar14 macies that are members of the same controlled 

15 group of corporations (within the meaning of section 

16 267(f) of the Internal Revenue Code of 1986) and 

17 all pharmacies under common control (within the 

18 meaning of section 52(b) of such Code but deter19 mined by treating an interest of more than 50 per20 cent as a controlling interest) shall be treated as 1 

21 pharmacy. 

22 (4) PDP REGION.—The term ‘‘PDP region’’ 

23 has the meaning given such term in section 1860D– 

24 11(a)(2) of the Social Security Act (42 U.S.C. 

25 1395w–111(a)(2)). 


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1 (j) 5-YEAR SUNSET.—The exemption provided in 

2 subsection (a) shall only apply to conduct occurring during 

3 the 5-year period beginning on the date of the enactment 

4 of this Act and shall continue to apply for 1 year after 

5 the end of such period to contracts entered into before 

6 the end of such period. 

7 (k) GENERAL ACCOUNTABILITY OFFICE STUDY AND

8 REPORT.—The Comptroller General of the United States 

9 shall conduct a study on the impact of enactment of this 

10 section during the 6-month period beginning with the 5th 

11 year of the 5-year period described in subsection (j). Not 

12 later than the end of such 6-month period, the Comptroller 

13 General shall submit to Congress a report on such study 

14 and shall include in the report such recommendations on 

15 the extension of this section (and changes that should be 

16 made in making such extension) as the Comptroller Gen17 eral deems appropriate. 

18 (l) OVERSIGHT.—Nothing in this section shall pre19 clude the Federal Trade Commission or the Department 

20 of Justice from overseeing the conduct of independent 

21 pharmacies covered under this section. 

Æ 


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