I 

111TH CONGRESS 

1ST SESSION H. R. 1204 

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 

FEBRUARY 25, 2009 

Mr. WEINER (for himself, Mr. ADERHOLT, Ms. BALDWIN, Mr. BARTLETT, Mr. 

BERRY, Mr. BISHOP of Georgia, Mr. BISHOP of New York, Mr. 

BOUSTANY, Ms. CLARKE, Mr. COBLE, Mr. CONYERS, Mr. COURTNEY, 

Mr. CUMMINGS, Mr. FARR, Mr. HINCHEY, Mr. HINOJOSA, Mr. HOLDEN, 

Mr. JONES, Mr. LOEBSACK, Mr. MCHUGH, Mr. MOORE of Kansas, Mr. 

MORAN of Kansas, Mr. PATRICK J. MURPHY of Pennsylvania, Mr. NADLER of New York, Mr. PAUL, Mr. ROE of Tennessee, Ms. LINDA T. 

SA ́NCHEZ of California, Mr. TERRY, Mr. WELCH, Mr. WILSON of Ohio, 

Mr. HALL of Texas, Mr. DRIEHAUS, Mr. PLATTS, and Mr. TAYLOR) 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. 


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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 2009’’. 

6 SEC. 2. APPLICATION OF THE ANTITRUST LAWS TO INDE7 PENDENT PHARMACIES NEGOTIATING WITH 

8 HEALTH PLANS. 

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

10 are engaged in negotiations with a health plan regarding 

11 the terms of any contract under which the pharmacies pro12 vide health care items or services for which benefits are 

13 provided under such plan shall, in connection with such 

14 negotiations, be entitled to the same treatment under the 

15 antitrust laws as the treatment to which bargaining units 

16 which are recognized under the National Labor Relations 

17 Act are entitled in connection with activities described in 

18 section 7 of such Act. Such a pharmacy shall, only in con19 nection with such negotiations, be treated as an employee 

20 engaged in concerted activities and shall not be regarded 

21 as having the status of an employer, independent con22 tractor, managerial employee, or supervisor. 

23 (b) PROTECTION FOR GOOD FAITH ACTIONS.—Ac24 tions taken in good faith reliance on subsection (a) shall 

25 not be the subject under the antitrust laws of criminal 


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1 sanctions nor of any civil damages, fees, or penalties be2 yond actual damages incurred. 

3 (c) NO CHANGE IN NATIONAL LABOR RELATIONS

4 ACT.—This section applies only to independent phar5 macies excluded from the National Labor Relations Act. 

6 Nothing in this section shall be construed as changing or 

7 amending any provision of the National Labor Relations 

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

9 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) LIMITATIONS ON EXEMPTION.—Nothing in this 

14 section shall exempt from the application of the antitrust 

15 laws any agreement or otherwise unlawful conspiracy 

16 that— 

17 (1) would have the effect of boycotting any 

18 independent pharmacy or group of independent 

19 pharmacies, or would exclude, limit the participation 

20 or reimbursement of, or otherwise limit the scope of 

21 services to be provided by, any independent phar22 macy or group of independent pharmacies with re23 spect to the performance of services that are within 

24 the scope of practice as defined or permitted by rel25 evant law or regulation; 


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1 (2) allocates a market among competitors; 

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

3 product or service to the sale or purchase of another 

4 product or service; or 

5 (4) monopolizes or attempts to monopolize a 

6 market. 

7 (f) LIMITATION BASED ON MARKET SHARE OF

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

9 negotiations of any group of independent pharmacies with 

10 a health plan regarding the terms of any contract under 

11 which such pharmacies provide health care items or serv12 ices for which benefits are provided under such plan in 

13 a PDP region (as defined in subsection (j)(4)) if the num14 ber of pharmacy licenses of such pharmacies within such 

15 group in such region exceeds 25 percent of the total num16 ber of pharmacy licenses issued to all retail pharmacies 

17 (including both independent and other pharmacies) in 

18 such region. 

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

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

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

22 of 1964. 

23 (h) NO APPLICATION TO SPECIFIED FEDERAL PRO24 GRAMS.—Nothing in this section shall apply to negotiaVerDate Nov 24 2008 03:29 Feb 27, 2009 Jkt 079200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1204.IH H1204

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1 tions between independent pharmacies and health plans 

2 pertaining to benefits provided under any of the following: 

3 (1) The Medicaid Program under title XIX of 

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

5 (2) The State Children’s Health Insurance Pro6 gram (SHIP) under title XXI of the Social Security 

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

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

9 (relating to medical and dental care for members of 

10 the uniformed services). 

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

12 (relating to Veterans’ medical care). 

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

14 (relating to the Federal employees’ health benefits 

15 program). 

16 (6) The Indian Health Care Improvement Act 

17 (25 U.S.C. 1601 et seq.). 

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

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

20 laws’’— 

21 (A) has the meaning given it in subsection 

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

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

24 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 

7 plan’’— 

8 (i) means a group health plan or a 

9 health insurance issuer that is offering 

10 health insurance coverage; 

11 (ii) includes any entity that con12 tracts with such a plan or issuer for the 

13 administering of services under the plan or 

14 coverage; and 

15 (iii) includes a prescription drug plan 

16 offered under part D of title XVIII of the 

17 Social Security Act and a Medicare Advan18 tage plan offered under part C of such 

19 title. 

20 (B) HEALTH INSURANCE COVERAGE; 

21 HEALTH INSURANCE ISSUER.—The terms 

22 ‘‘health insurance coverage’’ and ‘‘health insur23 ance issuer’’ have the meanings given such 

24 terms under paragraphs (1) and (2), respec25 tively, of section 733(b) of the Employee RetireVerDate Nov 24 2008 03:29 Feb 27, 2009 Jkt 079200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1204.IH H1204

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1 ment Income Security Act of 1974 (29 U.S.C. 

2 1191b(b)). 

3 (C) GROUP HEALTH PLAN.—The term 

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

5 term in section 733(a)(1) of the Employee Re6 tirement Income Security Act of 1974 (29 

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

8 (3) INDEPENDENT PHARMACY.—The term 

9 ‘‘independent pharmacy’’ means a pharmacy that 

10 has a market share of— 

11 (A) less than 10 percent in any PDP re12 gion; and 

13 (B) less than 1 percent in the United 

14 States. 

15 For purposes of the preceding sentence, all phar16 macies that are members of the same controlled 

17 group of corporations (within the meaning of section 

18 267(f) of the Internal Revenue Code of 1986) and 

19 all pharmacies under common control (within the 

20 meaning of section 52(b) of such Code but deter21 mined by treating an interest of more than 50 per22 cent as a controlling interest) shall be treated as 1 

23 pharmacy. 

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

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


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1 11(a)(2) of the Social Security Act (42 U.S.C. 

2 1395w–111(a)(2)). 

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

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

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

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

7 the end of such period to contracts entered into before 

8 the end of such period. 

9 (k) GENERAL ACCOUNTABILITY OFFICE STUDY AND

10 REPORT.—The Comptroller General of the United States 

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

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

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

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

15 General shall submit to Congress a report on such study 

16 and shall include in the report such recommendations on 

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

18 made in making such extension) as the Comptroller Gen19 eral deems appropriate. 

20 (l) OVERSIGHT.—Nothing in this section shall pre21 clude the Federal Trade Commission or the Department 

22 of Justice from overseeing the conduct of independent 

23 pharmacies covered under this section. 

Æ 


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