On February 4, 2026, the Federal Trade Commission accepted a consent agreement for public comment regarding a settlement with Express Scripts, Inc. and its affiliated entities (collectively “ESI”). Once the consent order is issued by the Commission, it carries the force of law. The settlement resolves the lawsuit filed by the Commission against ESI regarding alleged inflation of insulin drugs through their rebating practices, shifting the cost to patients. Settlements have not yet been reached with Caremark and Optum at this time.
The initial complaint alleges that ESI’s rebating practice pushed insulin manufacturers to compete for preferred formulary coverage based on the size of rebates off the list price rather than net price. The FTC claimed that this practice unfairly benefited the PBMs which retain a portion of the inflated rebates and hurt patients with copays and coinsurance that are tied to the list price.
The proposed consent order includes the following concessions specific to ESI:
Drug Pricing & Cost Alignment
- No preference for high–list price drugs over lower–list price versions on standard formularies.
- Members’ out‑of‑pocket costs in standard offerings will be based on net price rather than inflated list price.
- Manufacturer compensation to ESI will be separated from drug list prices.
- A standard option will help plan sponsors transition away from rebate guarantees and spread pricing.
Insulin & Patient Assistance Access
- TrumpRx will be included as a standard offering, subject to legal and regulatory considerations.
- All members will receive access to Patient Assistance Program insulin benefits when a plan sponsor adopts a formulary that includes insulin, unless the sponsor opts out.
Transparency for Plan Sponsors
- Expanded transparency, including drug‑level reporting, data needed for Transparency in Coverage compliance, and broker payment information.
Community Pharmacy Support & Payment Reform
- Standard offering for retail community pharmacies will use a more transparent model based on actual acquisition cost plus a dispensing fee and compensation for non‑dispensing services.
- Standard offerings will be promoted to plan sponsors in ways that support and retain community pharmacies.
Organizational & Structural Changes
- The offshore group purchasing organization will be relocated from Switzerland to the United States.
This settlement agreement has been accepted by the FTC but is not formally finalized until the process for public comment has been completed.
Next Steps:
The FTC’s proposed settlement with ESI could mark a major shift in how pharmacy benefit managers handle insulin pricing, rebates, and transparency. The agreement aims to break the link between high list prices and PBM profits, reduce patient out‑of‑pocket costs, and expand access to insulin assistance programs. It also pushes ESI toward greater transparency for plan sponsors and more sustainable reimbursement models for community pharmacies, while requiring structural changes such as relocating its group purchasing organization to the U.S. Although significant, the settlement is not yet final and remains open for public comment.
The information provided is a summary of laws and regulations relating to employee benefit plan compliance. This information should not be construed as legal advice. In all cases, employers should consult with their own legal counsel.
