Supreme Court decided Rutledge v. Pharmaceutical Care Management Association, holding that ERISA does not preempt state laws regulating PBM reimbursement rates paid to pharmacies. Since that decision, lower courts have found Rutledge inapplicable when holding that ERISA preempts other PBM regulatory laws. For instance, in 2023, the U.S. Court of Appeals for the Tenth Circuit ruled that ERISA preempted several provisions of an Oklahoma PBM law, including those targeting network access standards and “any-willing-pharmacy” requirements, as applied to self-funded plans. Supreme Court declined to review the ruling in Pharmaceutical Care Management Association v. Mulready, leaving it in effect for courts in the Tenth Circuit. Earlier this year, the U.S. Court of Appeals for the Sixth Circuit affirmed in McKee Foods Corp. that ERISA preempts certain portions of Tennessee’s P…

Similarly, the Arkansas PBM law addressing ownership and vertical integration is the subject of legal challenges under ERISA, the Dormant Commerce Clause, and the Equal Protection Clause. Congress has contributed to the steadily shifting PBM landscape by adding transparency requirements. Under the Consolidated Appropriations Act of 2026 (CAA), PBMs affiliated with ERISA-governed group health plans qualify as covered service providers under ERISA. As a result, the CAA requires PBMs to pass through 100% of rebates, fees, discounts, and other payments to the plan, with some limited exceptions for bona fide service fees. The CAA also put new disclosure and reporting requirements that apply to contracts entered into or renewed on or after August 2028, with an ultimate implementation date of January 1, 2029, for many plans. Finally, the CAA creates audit rights for fiduciar…