FTC Approves Modification of Cooperativa De Farmacias Puertorriqueñas Final Commission Order

Following a public comment period, the Federal Trade Commission has approved a petition by Cooperativa De Farmacias Puertorriqueñas, a Puerto Rican cooperative of independent pharmacy owners, to reopen and modify the FTC’s 2012 final order. 

The FTC’s 2012 order, among several terms, prohibited Cooperativa De Farmacias Puertorriqueñas, also known as Coopharma, from entering into or facilitating certain agreements with pharmacies and prohibited Coopharma from facilitating information exchanges between pharmacies regarding contract terms with insurance payors. The 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 pharmacy benefit managers (PBMs).

In granting the petition, the FTC will permit Coopharma to jointly negotiate with insurers or PBMs on behalf of pharmacies. Such conduct qualifies for state action immunity to the extent that the entity appointed by Puerto Rico supervises the negotiations according to Puerto Rico’s statutory and regulatory framework, the FTC’s order states. 

In August, Coopharma had requested that the FTC reopen and modify the 2012 final consent order given changes in Puerto Rico’s law that have allowed for state oversight of health care provider cooperative negotiations with payors. In its petition to modify the 2012 order, Coopharma cited the increased dominance of PBMs and their ability to impose unfair contractual terms that harm independent pharmacies’ ability to compete.

The Commission voted 5-0 to approve Coopharma’s petition to reopen and modify the order. Chair Lina M. Khan and Commissioner Melissa Holyoak each issued separate statements.