Washington, D.C., September 8, 2025– On Friday, September 5, The ERISA Industry Committee (ERIC) and aligned organizations filed an amicus brief in the U.S. Court of Appeals for the Sixth Circuit in McKee Foods Corporation v. BFP, Inc. (McKee). In its brief, ERIC asked the court to affirm the lower court’s decision that Tennessee’s “any willing pharmacy” law is preempted by the Employee Retirement Income Security Act (ERISA).
In McKee, the plaintiff is challenging a Tennessee law requiring that “any willing pharmacy” be included in a prescription drug plan’s provider network, including self-insured prescription drug plans governed by ERISA.
“ERISA self-funded health benefit plans are designed to address employee needs wherever the employee may reside. Federal law grants employers the flexibility to meet those needs, enabling them to innovate value-driven policies like lower copays at onsite and in-network pharmacies. This flexibility helps employers manage costs for employees and their families,” said ERIC President and CEO James Gelfand. “Requiring ERISA self-insured plans to comply with the Tennessee law increases complexity, administrative burdens, and costs, and eliminates the very flexibility Congress gave employers to help working families.”
In the brief, ERIC explains that ERISA preempts the Tennessee law because that law directly interferes with prescription-drug benefit plan design and administration by:
(1) Restricting plan sponsors’ ability to design pharmacy networks for their plans; and
(2) Limiting the ability of plan sponsors to implement effective cost-savings measures for their plans.
Gelfand added, “ERISA’s preemption provision was designed so employers with multi-state benefit plans would not face a patchwork of state regulations. The lower court correctly recognized that the Tennessee law would restrict the freedom envisioned under ERISA’s preemption provision, and we urge the Circuit court to uphold that decision.”
ERIC is a national advocacy organization exclusively representing the largest employers in the United States in their capacity as sponsors of employee benefit plans for their nationwide workforces. With member companies that are leaders in every economic sector, ERIC is the voice of large employer plan sponsors on federal, state, and local public policies impacting their ability to sponsor benefit plans. ERIC member companies offer benefits to tens of millions of employees and their families, located in every state and city across the country.
ERIC was joined by the America’s Health Insurance Plans, Inc., The American Benefits Council, The Chamber of Commerce of the United States of America, and The National Association of Manufacturers on the brief. Morgan, Lewis & Bockius LLP prepared the amicus brief, which is available here.
Background
Key facts on employer health and prescription drug affordability:
- Sixty-three percent of working-age adults (ages 19–64) had employment-based health insurance in 2023 (U.S. Census Bureau, Health Insurance Coverage in the United States: 2023, p. 5).
- About 154 million non-elderly Americans obtain their health insurance through an employer (Kaiser Family Foundation, Employer Health Benefits 2024 Annual Survey, p. 7).
- Seventy-five percent of eligible workers offered employer-sponsored coverage accept it (Kaiser Family Foundation, Employer Health Benefits 2024 Annual Survey, p. 68).