Utah is suing two of the nation’s top pharmacy benefit managers (PBM), the companies that shape prescription drug pricing, alleging that both “fueled the fire” by profiteering off the opioid-involved overdose crisis.
On December 23, the Utah Attorney General’s Office and the state Department of Commerce filed a complaint against Express Scripts and Optum, two of the three PBM that control the vast majority of the United States pharmaceutical market. (The largest, CVS Caremark, is not included in the suit.)
PBM are the middlemen of the pharmaceutical supply chain. As third-party intermediaries they negotiate with manufacturers, pharmacies, insurers and employers on a wide range of prescription drug pricing decisions. This role includes creating insurance plan formularies—the lists of preferred medications that insurers will cover—which provides ample opportunity to collect kickbacks, AKA rebates, from manufacturers seeking to influence decisions.
“With this special access and power, Defendants Express Scripts and Optum have had incredible knowledge and control over the flow of opioids into our communities, and maybe more than any other entities involved in the pharmaceutical distribution and payment chain,” the complaint states. “Instead of using their role in crafting national formularies and benefit plans to place meaningful restrictions and safety conditions on opioids, Defendants gave opioids preferred status on their formularies with little to no limits on their use and consumption … in exchange for payments from opioid manufacturers.”
It further alleges that Express Scripts and Optum, and their subsidiaries, “substantially contributed … to tripling the number of Utahns who died from prescription opioid overdose” over the past two decades.
This is misleading. The state’s recorded rate of overdose fatalities associated with prescription opioids has been decreasing since 2014, and is currently lower than it was in 2003. Nationally, a crackdown on opioid prescribing has pushed pain patients into crisis, and been accused of fueling unprecedented fatalities associated with unregulated drugs.
The complaint requests a trial by jury to determine whether the companies created a public nuisance, and whether they violated the Utah Consumer Sales Practices Act.
Michigan and Kentucky filed similar suits against Express Scripts and Optum in 2024, as did LA County in 2023.
PBM are not required to disclose how they arrived at a drug’s pricing or formulary placement, or the profits they made off those decisions. They are notorious for inflating prices with little oversight, and for being poorly understood by the public.
“I have billions of claims, literally billions of claims,” an Optum executive stated, according to the complaint. “When you go to the pharmacy, in microseconds, I know if my patients are on a concurrent [benzodiazepine]. I know what the dose is. I know what the day’s supply is. I know what other drugs they’re taking, and I can have realtime [point of sale] edits going through making sure everything is happening appropriately.”
The filing leans on various narratives that demonize certain opioids and the people who use them. These include the debunked yet popular myth that discarded syringes pose a public health threat, and villainizing OxyContin—which many patients rely on to manage chronic pain—as a medication that shouldn’t be on formularies because it’s too likely to be diverted. But the suit reflects the increased attention that PBM have been attracting in recent years.
Michigan and Kentucky filed similar complaints against Express Scripts and Optum in 2024, as did Los Angeles County in 2023. In December 2024, President-elect Donald Trump expressed support for legislation that proposed to increase regulations for PBM. These included flat fees, more oversight around pricing for pharmacies on Medicaid plans, and a dispute process for pharmacies to challenge PBM decisions. However, the provisions were cut amid last-minute negotiations to avoid a government shutdown.
“I don’t know who these middlemen are,” Trump told reporters prior to the revisions, “but they are rich.”
Image via Ohio Department of Insurance
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