FTC reaches proposed settlement with Surescripts 

WASHINGTON – The Federal Trade Commission has filed a proposed order to remedy what it says is anticompetitive conduct by Surescripts that led to higher prices, stifled innovation and reduced customer choice in the e-prescribing market. 

The order follows a favorable federal court ruling that found Surescripts possesses monopoly power in e-prescribing services with a 95% “super share,” according to the FTC. 

“The FTC will not hesitate to take action in enforcing the antitrust laws to protect health care consumers,” said FTC Bureau of Competition Director Holly Vedova. “The proposed order is a victory in creating a fair and competitive playing field in the e-prescription drug market. In large part because of Surescripts’ conduct, virtually everyone today who has a prescription filled electronically does so via the Surescripts networks. The proposed order would eliminate the anticompetitive restraints Surescripts has imposed on its customers since 2010 and would create conditions that allow competition to flourish for the benefit of anyone who gets a prescription filled at a pharmacy.” 

In its lawsuit, the FTC alleged that Surescripts intentionally set out to keep e-prescription routing and eligibility customers from using competing platforms (a practice known as multihoming) by using anticompetitive exclusivity agreements, threats and other exclusionary tactics. 

The court denied Surescripts’ motion to dismiss in January 2020, and Surescripts and the FTC filed motions for summary judgment in March 2022. The court granted the FTC’s motion for partial summary judgment and encouraged the two parties to engage in settlement discussions in March 2023. The district court then referred the case to mediation. 

The FTC’s proposed order, which has a 20-year term, would prohibit Surescripts from engaging in the types of exclusionary conduct alleged in the FTC’s lawsuit. It also extends the same prohibitions to Surescripts’ medication history services and the company’s on-demand formulary services, which use data that identifies the patient’s group or plan level prescription benefit information for a specific or alternative drug. 

Specifically, the proposed order would: 

• Prohibit Surescripts from entering into, maintaining or enforcing contracts that impose a majority share requirement (e.g., exclusivity or loyalty agreements) on its routing and eligibility customers, including through all-unit discounting. 

• Prohibit Surescripts from implementing other problematic provisions it has used in the past to prevent or limit the ability of customers to do business with Surescripts’ competitors.

• Bar Surescripts from preventing customers from promoting competitors’ services; preventing and limiting customers’ ability to communicate with competitors; and requiring that customers provide Surescripts a right of first refusal. 

• Bar Surescripts from entering into, maintaining or enforcing agreements that prevent rivals from competing with Surescripts in routing and eligibility. 

• Prohibit Surescripts from discriminating against or threatening customers who refuse to agree to a majority share requirement. 

• Extend the same relief to Surescripts’ medication history and on-demand formulary services. 

• Bar Surescripts from entering into or enforcing any employee non-compete agreement with current and former employees that would prevent those employees from working for a competing e-prescribing service provider.