On May 29, 2025, the two largest Pharmacy Benefit Managers (“PBMs”) in the United States—Caremark and Express Scripts—filed lawsuits in the Eastern District of Arkansas seeking to overturn Arkansas’s recently enacted Act 624, which seeks to prevent PBMs from also owning pharmacies. This legal battle has the potential to reshape the regulatory landscape for PBMs not only in Arkansas, but across the nation.
Background on Act 624
Act 624 prohibits PBMs from acquiring, holding, or renewing a pharmacy permit in Arkansas, effectively barring PBMs from owning or operating pharmacies in the state. The law was championed by local pharmacy groups and state officials who argue that PBMs have too much influence over drug pricing and pharmacy competition, often to the detriment of independent pharmacies and consumers.
Arkansas Attorney General Tim Griffin, whose office will defend against these cases, stated “[PBMs] wield outsized power to reap massive profits at the expense of consumers,” and that “the rise of PBMs as middlemen in the prescription drug market has resulted in patients facing fewer choices, lower quality care, and higher prices.” Attorney General Griffin vowed to stand up to PBMs and vigorously defend the law.
Express Scripts’ Claims Against Arkansas
The Express Scripts lawsuit seeks declaratory and injunctive relief to prevent Act 624 from going into effect on January 1, 2026. Express Scripts alleges that Act 624:
- Violates the Dormant Commerce Clause: Express Scripts claims that by targeting out-of-state PBMs and their affiliated pharmacies, the law discriminates against interstate commerce in favor of local businesses, which is prohibited by the U.S. Constitution.
- Violates the Privileges and Immunities Clause: Express Scripts claims the law deprives out-of-state companies of the right to conduct business in Arkansas, solely to protect in-state interests.
- Constitutes a Bill of Attainder: Express Scripts claims Act 624 singles out PBMs for punishment without a judicial trial, which is forbidden by the Constitution’s Bill of Attainder Clause.
- Is Preempted by Federal Law: As the contracted pharmacy provider for the Department of Defense’s TRICARE program, which serves military members, retirees, and their families, Express Scripts claims that Act 624 would prevent it from fulfilling its federal obligations, directly interfering with federal law and contracts.
Caremark’s Claims Against Arkansas
Caremark (who has publicly stated it would have to close 23 pharmacy locations if the law goes into effect) also seeks declaratory and injunctive relief by arguing that Act 624:
- Violates the Dormant Commerce Clause: Caremark alleges that Act 624 is a protectionist measure designed to favor in-state pharmacies and harm out-of-state competitors, particularly CVS and other PBM-affiliated pharmacies.
- Violates the Equal Protection Clause: Caremark claims that Act 624 violates the Equal Protection Clause of the Fourteenth Amendment by treating similarly situated entities differently without a rational basis. The law bans most PBM-affiliated pharmacies (like CVS) from operating in Arkansas but carves out an exemption for Walmart, the state’s largest employer, allowing it to continue operating its PBM-affiliated pharmacies.
- Violates the Employee Retirement Income Security Act (“ERISA”): Caremark claims the law interferes with the uniform, nationwide administration of employee benefit plans by preventing ERISA-governed plans from using PBM-affiliated pharmacies in Arkansas.
- Violates the Medicare Modernization Act (“MMA”): Caremark claims the law also seeks to regulate Medicare Advantage and Medicare Part D plans, which are governed exclusively by federal standards.
What’s Next
This case sets the stage for a high-stakes legal showdown over the future of pharmacy regulation in Arkansas and potentially across the country. If Act 624 is upheld, it could serve as a model for other states seeking to limit the influence of PBMs in the pharmacy market. The outcome will be closely watched by stakeholders nationwide.
As demonstrated in the landmark case, Rutledge v. Pharmaceutical Care Management Association, Arkansas continues to be a pioneer in the regulation of PBMs, pushing the boundaries of state authority in this complex and evolving area.
How Frier Levitt Can Help
Frier Levitt represents numerous pharmacies across the United States assisting them in challenging PBM audits, network access, reimbursement practices (including DIR fees and MAC reimbursement) and providing extensive knowledge on all aspects of the pharmacy-PBM relationship. Contact us to speak with an attorney about how your pharmacy can leverage the various laws and protections afforded to pharmacies, including Arkansas’s PBM laws.
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