President-elect Donald Trump’s two picks for the Federal Trade Commission are likely to usher in more life sciences deals while maintaining the agency’s pressure on pharmaceutical intermediaries.
A review of public statements by Commissioner Andrew Ferguson — Trump’s choice to lead the regulator — and Mark Meador, his pick for another GOP slot, shows a strong focus on big tech and far less about drugmakers. That would be a departure from Biden-era Chair Lina Khan, who has made the pharma industry
one of the agency’s primary anti-consolidation targets
.
Ferguson and Meador have often urged a lighter touch to antitrust, hinting at a more traditional review of consolidation than Khan’s effort to
broaden the criteria for challenging biopharma deals
. But the two Republicans share Khan’s skeptical view of pharmacy benefit managers, more commonly known as PBMs, that are under the agency’s microscope.
Under Khan, the FTC deployed new antitrust theories to challenge pharmaceutical deals with less overlap and transactions involving drugs at early stages of development. Her legal strategy was pulled from a
little-noticed workshop
that the FTC held in 2022 on antitrust and drug prices, and expressed by challenges of deals between
Amgen and Horizon Therapeutics
, and
Sanofi and Maze Therapeutics
.
With Ferguson and Meador joining Republican commissioner Melissa Holyoak, experts believe the life sciences industry is now in for an antitrust policy that’s more traditional — though still rigorous at times.
“We’re anticipating that merger enforcement will look like the first Trump administration, which was based on traditional legal theories but still aggressive,” said Jeny Maier, a managing partner with Axinn, Veltrop & Harkrider.
For example, toward the end of the first Trump administration in 2020, the FTC approved AbbVie’s $65 billion takeover of Allergan, with one stipulation: AbbVie had to divest overlapping drug products. To the majority who approved the deal, that marked an important concession and showed the agency had done its job.
But in a blistering dissent that presaged Khan’s more expansive approach, then-Commissioner Rohit Chopra, a Democrat, criticized the FTC for not suing to stop the deal and said the remedy “misses the big picture, allowing pharmaceutical companies to further exploit their dominance.”
Chopra’s frustration over the lack of legal action and a perceived failure to look at wider market forces foreshadowed the agency’s 2023 lawsuit to block Amgen’s $28 billion buyout of Horizon. The two companies didn’t sell competing products, but the FTC said that Amgen could use its portfolio of blockbuster medicines to entice payers to favor two Horizon drugs, thwarting potential competition.
Ultimately, though, the deal closed with limited concessions.
Antitrust expert Michael Carrier, a professor at Rutgers Law School, said he doesn’t expect the FTC to challenge acquisitions like this one in the future. Nor does he anticipate the agency will target deals involving early-stage drugs, like Sanofi’s attempt to acquire a Phase 1 asset from Maze.
“Back to traditional pharma antitrust theories like pay for delay, product hopping and citizen petitions,” Carrier said.
Under Khan, the FTC wasn’t always as aggressive as some companies feared. Last year, the agency
cleared Pfizer’s $43 billion bid for Seagen
, after Pfizer agreed to donate the rights to a cancer drug’s royalties to the American Association for Cancer Research. And the agency recently approved
Novo Holdings’ $16.5 billion acquisition
of Catalent, despite huge political pressure over the price of obesity drugs.
But Khan’s FTC likely made
some companies think twice
about pursuing acquisitions in the first place. The shift in approach under the new picks is anticipated to ease antitrust pressure on dealmaking, experts say.
Ferguson, one of two current Republican commissioners on the five-member FTC, in a memo recently obtained by the publication
Punchbowl
, said he plans to end “Khan’s war on mergers,” including “novel and legally dubious” cases.
“Most mergers benefit Americans and promote the movement of capital that fuels innovation. Focus FTC resources on mergers that harm competition and hinder innovation,” the document states.
Ferguson will have the power to reopen
tougher merger guidelines
that the agency debuted last year to crack down on what it called “harmful corporate consolidation.”
Two current commissioners, Rebecca Kelly Slaughter and Alvaro Bedoya, in an
open letter shared on X
, criticized Ferguson’s memo for not mentioning the cost of healthcare or prescription medicines.
“The document
does
propose allowing more mergers, firing civil servants and fighting something called the ‘trans agenda.’ Is all of that more important than the cost of healthcare and groceries and gasoline?” they asked.
Bedoya and Slaughter did not respond to a request for comment. Nor did Ferguson or Meador.
Meador — a partner at the law firm Kressin Meador Powers, who has worked as an FTC antitrust attorney and former advisor to Sen. Mike Lee (R-UT) — is seen as holding tougher enforcement stances than Ferguson. Still, it’s expected he won’t advance novel theories of harm given his ideological underpinnings.
“We will continue to see active merge enforcement, but there’s a lot of traditional, accepted theories that the agency can apply,” former FTC official and antitrust attorney James Fishkin said.
(Ferguson can be elevated to FTC chair without US Senate confirmation because of his current role as commissioner, while Meador must undergo a formal confirmation process.)
It doesn’t seem the FTC is in for wholesale change when it comes to PBMs, an issue that’s attracted bipartisan support in Congress as well.
In September, the agency sued CVS Caremark, Cigna’s Express Scripts, and UnitedHealth Group’s Optum Rx, alleging the companies are artificially inflating the cost of insulin.
That followed an interim
FTC report
that called for further investigation into the consolidated PBM industry that was characterized as pushing around competing pharmacies and extracting favorable financial outcomes.
In a statement at the time
, Ferguson voiced support for many of the sentiments in the report, but said more needs to be done to “determine whether these findings are representative of market dynamics for other drugs.”
“The Commission is responsible for protecting consumers in those markets by enforcing competition among suppliers and middlemen,” he wrote in the statement. “Competition may not be a panacea for rising healthcare prices in America, but we owe it to Congress and the American consumers to do what we can within our statutory mandate to confront this challenge.”
Meador authored a 2011 publication in the
Annals of Health Law
titled “Squeezing the Middleman: Ending Underhanded Dealing in the Pharmacy Benefit Management Industry through Regulation.”
“The challenges instigated by the behavior in the PBM industry are not anomalies that may be remedied by occasional litigation,” Meador wrote. “Rather, constant investigation and litigation would be necessary to policy PBMs and prevent or cure unfair and deceptive practices.”
Potentially buoying the FTC, PBMs have become a bipartisan target. Last week, Sens. Elizabeth Warren (D-MA) and Josh Hawley (R-MO) introduced a bill in the Senate that would require healthcare companies that own health insurers or PBMs to sell pharmacy assets within three years.
The Pharmaceutical Care Management Association, a trade group representing PBMs, didn’t respond to a request for comment.
“PBMs are just incredibly unpopular politically, and I think that that is true across both Democrats and Republicans,” Maier said.