Consumer groups go on record in support of retail pharmacy versus ESI-Medco merger

PITTSBURGH — The U.S. District Court for the Western District of Pennsylvania on Wednesday accepted an amici curiae from the Consumer Federation of America, the National Consumers League, the National Legislative Association on Prescription Drug Prices and U.S. PIRG (a federation of 28 nonprofit, nonpartisan state Public Interest Research Groups) on behalf of retail pharmacy plaintiffs in their suit to dismantle the Express Scripts-Medco merger.

"Amici have long been concerned by the egregious, deceptive and anticompetitive conduct of [pharmacy benefit managers]," the groups noted. "Notwithstanding any cost benefits [pharmacy benefit managers] offer, they often harm consumers by engaging in deceptive practices, eliminating access to vital healthcare services and reducing consumer choice."

The amici made a three-pronged argument against the merger — notably that the resulting super-PBM would represent an increase in consumer costs and a decline in consumer choice. The third concern identified by the amici regarded the potential for an ESI-Medco combination to dominate the business of specialty pharmacy. "This incredible consolidation of the specialty market is of particular concern to consumers given the fact that specialty drugs are expected to be the single greatest cost-driver in pharmaceutical spending over the next decade," the groups wrote. "The cost of specialty drugs is rising rapidly, increasing by 19.6% in 2010 to reach as high as 27.5% by 2013. Meanwhile, by 2016, eight of the top 10 prescription drugs are expected to be specialty."

The brief was filed in support of the National Association of Chain Drug Stores, the National Community Pharmacists Association and nine individual retail pharmacy operators' suit to reverse the ESI-Medco merger that was approved by the Federal Trade Commission at the beginning of April.

The judge presiding in that case, U.S. District judge Cathy Bissoon, entertained arguments from both the plaintiffs and defendants on April 10, but has yet to rule in the case.

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