Scott's Web Log: Comment until March 16, 2026 on FTC-Express Scripts Proposed Settlement Agreement

Today, I am opining on the recent proposed "settlement" agreement with the Federal Trade Commission (FTC) and Cigna's Evernorth/Express Scripts Pharmacy Benefit Manager (PBM) business. I have long advocated for FTC action on this; if you care to read my summary of what happened, catch my post at https://blog.sstrumello.com/2025/01/why-i-pushed-for-ftc-litigation-against.html.

Make no mistake, the FTC sued, and FTC had substantial evidence against Express Scripts, so the company opted to simply settle, essentially agreeing to the FTC's "Intended Relief" which is assuredly a good thing. On February 4, 2026, Drug Channels' former owner Adam J. Fein covered the proposed FTC settlement with Express Scripts which is well worth a read. See his coverage at https://www.drugchannels.net/2026/02/the-ftc-blows-up-express-scripts-pbm.html for more.

Adam J. Fein's notable concern pertains specifically to the fact that the settlement seemingly enables employer healthcare "plan sponsors" with a potential big loophole for business-as-usual. (See Section XI of the settlement agreement at https://www.ftc.gov/system/files/ftc_gov/pdf/d09437caremarkproporder-esiresps.pdf for details).

To be certain, regardless of what Express Scripts is doing, we still need for CVS Health/Caremark/Aetna and United Healthcare/OptumRx to settle, and until those vertically-integrated entities agree to settle with FTC, the job is anything but complete, but it's still a good start. It will meaningfully implement some much-needed changes to a very corrupt industry (PBMs) which has persistently resisted them. With one big PBM settling, it also makes it rather difficult for CVS Health/Caremark/Aetna and United Healthcare's OptumRx to do nothing.

But as former Cigna exec-turned whistle-blower Wendell Potter's "Health Care Un-Covered" Substack correctly observed (see https://healthcareuncovered.substack.com/p/in-ftc-settlement-cigna-agrees-to/ for its coverage), there will be a 30-day public comment period on the settlement package before it moves toward final settlement. Those anyone wishing to weigh-in on the settlement can do so at regulations.gov to find the proposed settlement. To spare you the trouble of finding it, see below:

The settlement agreement is designated "Express Scripts, Inc., et al.; Analysis of Agreement Containing Consent Order To Aid Public Comment" which was posted by the Federal Trade Commission on February 12, 2026. Observe that the public comment period on the "Proposed Settlement" ends on March 16, 2026 at 11:59 PM EDT. Visit https://www.regulations.gov/document/FTC-2026-0134-0001 until March 15, 2026 in order to comment.

Below was the letter which I wrote to FTC. I used AI tools to help compose it, but I feel it addresses the major weakness of the proposed settlement agreement with FTC and Cigna's Express Scripts and gives FTC direction on what still needs to change before it finalizes the agreement. Feel free to use it yourself!

SUGGESTED COMMENTARY ON FTC SETTLEMENT AGREEMENT WITH EXPRESS SCRIPTS:

To FTC Staff:
Thank you for the work that has gone into this settlement. As a patient who has been directly adversely affected by PBM "business" practices, I appreciate that the FTC is finally taking steps to fix a system that has enabled drug costs rise higher for years. This settlement is the result of years of advocacy from patients, pharmacists, and others who have been calling attention to these problems.
However, I remain very concerned about Section XI ("Meeting Competition") of the proposed order. As written, this section appears to allow employer health plan sponsors to continue requesting special terms that differ from the "Standard Offering." In practice, this could allow employers to keep receiving "premium offsets"—payments or credits funded by the large prescription drug rebates tied to high (artificially-inflated) list‑price drugs.
This is one of the most harmful "misaligned" incentives in the current PBM system. These premium offsets are not free money. They are funded by the sickest patients who use heavily-rebated prescription medicines, and pay out‑of‑pocket costs based on artificially-inflated list prices. Meanwhile, employers benefit from lower premiums that are effectively subsidized by those same patients. This is a deeply unfair cost‑shift, and it is one of the main reasons U.S. prescription drug prices have stayed artificially high.
If Section XI enables employer healthcare plan sponsors to continue choosing terms that preserve these offsets, then the core problem remains in place. The settlement will not achieve its goal of lowering drug costs for patients if employers can still benefit financially from inflated list prices and fat rebates subsidized by patients who require heavily-rebated prescription drugs.
For that reason, I urge the FTC to close this loophole before finalizing the order. Specifically:
Plan sponsors should NOT be allowed to receive premium offsets or similar financial benefits that depend on inflated list prices or rebates.
Any deviation from the Standard Offering should NOT include terms that recreate the same misaligned incentives the settlement is meant to eliminate.
The final order should make absolutely certain that employers cannot continue benefiting at the expense of the sickest patients.
Without fixing this, the settlement risks leaving the most harmful part of the PBM model intact. Patients including me and others like me will continue to bear the highest costs, while others benefit from the system that created those inflated costs in the first place.
Thank you for considering this comment and for your continued work to protect patients and bring more fairness to the U.S. prescription drug market.
Sincerely,