FTC Seeks Public Comments on Cooperativa De Farmacias Puertorriqueñas Request to Modify Final Commission Order

The Federal Trade Commission is seeking public comment on a petition by a Puerto Rican cooperative of independent pharmacy owners, Cooperativa De Farmacias Puertorriqueñas, also known as Coopharma, requesting that the FTC reopen and modify a final consent order issued in 2012 given changes in the law as well as the increasing dominance of pharmacy benefit managers (PBMs).

The FTC's 2012 order settled antitrust charges alleging that Coopharma harmed competition by negotiating, entering into, and implementing agreements among its member pharmacies to fix prices with insurers and PBMs. The FTC's 2012 consent order, among several terms, prohibited Coopharma from entering into or facilitating agreements with pharmacies and prohibited Coopharma from facilitating information exchanges between pharmacies regarding contract terms with insurance payors.

In the petition, Coopharma has asked that the FTC either modify or rescind the order given changes in Puerto Rico's law that have allowed for state oversight of health care provider cooperative negotiations with payors. Additionally, the petition states that given the increased dominance of PBMs and their ability to impose unfair contractual terms that harm independent pharmacies' ability to compete, the 2012 order is unnecessary.

Coopharma, in its petition, states that the 2012 consent order has limited the ability of many independent pharmacies across Puerto Rico to obtain favorable contracting terms, leading to many pharmacies being forced out of business. The current order prevents Coopharma from negotiating lower costs for consumers with PBMs and prevents Coopharma from being able provide improved quality pharmacy services for residents of Puerto Rico, which can only be gained through equitable reimbursement and fair treatment under contracts with PBMs, the petition states. As the FTC recently recognized in its interim staff report on PBMs, PBMs often employ an arsenal of unfair tactics toward independent pharmacies, Coopharma said in its petition.

Coopharma's petition further claims that the FTC's decision to rescind prior guidance on PBMs, as well as state and federal investigation into PBM practices, also make the 2012 order unnecessary.

The FTC will publish Coopharma's application in the Federal Register shortly. Instructions for filing comments appear in the published notice. Comments must be received 30 days after publication in the Federal Register. Once processed, they will be posted on Regulations.gov. After the comment period closes, the Commission will vote on whether to approve the application.