Health Care Companies Move for FTC Chair’s Recusal Over Past Comments

Lina Khan, then-nominee for FTC commissioner, speaks during a hearing on Capitol Hill on April 21, 2021. Graeme Jennings/AP Photo

Major health care companies are calling on Federal Trade Commission (FTC) Chair Lina Khan and two of her fellow commissioners to recuse themselves from a case centering on how the companies price insulin.

Pharmacy benefit managers (PBMs) CVS Caremark, Cigna’s Express Scripts, and UnitedHealth’s OptumRx filed motions on Oct. 8 in a proceeding before an administrative law judge, arguing that commissioners Khan, Alvaro Bedoya, and Rebecca Slaughter had made statements demonstrating deep bias on the issue.

ExpressScripts’ motion pointed to remarks in which Khan said PBMs’ rebate demands “may function as kickbacks that raise costs and limit access to affordable medicines.”

It also pointed to an article Khan wrote in law school claiming that PBMs “keep drug prices high.”

Amazon and Meta have similarly called for Khan’s recusal in separate proceedings. The former has highlighted how Khan wrote a Yale Law Journal article titled “Amazon’s Antitrust Paradox” in which she criticized the company’s practices.

The FTC declined to comment when contacted by The Epoch Times.

“The three commissioners here have for years, through numerous public speeches and writings during a live investigation, issued a steady drumbeat of anti-PBM rhetoric that reveals their predetermined positions on the exact issues raised in this case,” the motion from Caremark and Zinc Health Services reads.

“The three commissioners’ prior statements do not merely evince an appearance of bias or prejudgment—although that would be sufficient to require disqualification—the statements are proof-positive that Caremark’s and Zinc’s fates have been determined in the minds and statements of those who seek to adjudicate this matter.”

Caremark said the three commissioners should disqualify themselves from the case, and that if they don’t, the full commission should step in to disqualify them.

When the FTC announced its complaint on Sept. 20, it noted that the vote to file an administrative complaint was “3–0–2” and stated that two commissioners—Melissa Holyoak and Andrew Ferguson—were recused.

OptumRx’s motion stated that “disqualification of these three [Democrat] Commissioners is even more important because the unexplained ’recusals’ of the other two [Republican] Commissioners, Holyoak and Ferguson, from this administrative proceeding ... raises heightened questions about the impartiality of the one-sided partisan commission that will decide this case.”

The commission currently has two Republicans—Ferguson and Holyoak—and three Democrats.

Each was appointed by President Joe Biden, although Slaughter initially took office under President Donald Trump and was nominated by Biden for a second term.

In July, the commission issued an interim report on PBMs that received a critical concurrence from Ferguson and a dissent from Holyoak. The three Democrat commissioners defended the report in a separate statement.

Cigna’s ExpressScripts sued over the report in September, claiming that it “followed prejudice and politics, not evidence or sound economics, and wrongly concluded that PBMs inflate drug costs and harm independent pharmacies.”

In bringing its own complaint, the FTC accused the PBMs of “creating a perverse drug rebate system that prioritizes high rebates from drug manufacturers.”

The case was referred to an administrative law judge.

Khan’s presence in the Biden administration attracted political tension.

While some Democrat donors have supported her removal, others have backed Khan.

On Oct. 9, Rep. Alexandria Ocasio-Cortez (D-N.Y.) responded to news that donor and billionaire Mark Cuban said Vice President Kamala Harris should remove Khan if she won the presidency.

Ocasio-Cortez wrote in a post on social media platform X: “Anyone goes near Lina Khan and there will be an out-and-out brawl. And that is a promise.

“She proves this admin fights for working people. It would be terrible leadership to remove her.”