Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: In the biggest tech antitrust case in three decades, Google
Speaker 2: avoided a breakup after a DC federal judge ruled against
Speaker 2: the government's most severe proposals for remedies, including a forced
Speaker 2: sale of its Chrome browser. Judge on Metmeta had already
Speaker 2: found in August of twenty twenty four that Google illegally
Speaker 2: dominated the search market by paying more than twenty six
Speaker 2: billion dollars to Apple and other companies to make its
Speaker 2: search engine the default option on smartphones and web browsers.
Speaker 2: Tuesday's ruling was all about the fix, and Google will
Speaker 2: have to make some concessions, including sharing online search data
Speaker 2: with rivals and ending exclusive contracts for distribution. My guest
Speaker 2: is antitrust law expert Harry First, a professor at NYU
Speaker 2: Law School. So on its website, the Department of Justice says,
Speaker 2: Department of Justice wins significant remedies against Google, but this
Speaker 2: falls far short of the severe remedies that the government wanted.
Speaker 2: How much of a setback is it for the government
Speaker 2: in its attempt to curb the power of the biggest
Speaker 2: tech companies?
Speaker 3: Well, you know, people often talk about things as being
Speaker 3: a win win, and that's a good thing. So I
Speaker 3: think that the judge's decision is a win win, but
Speaker 3: not a good thing. So why is it a win
Speaker 3: win because the Justice Department and the States gets something
Speaker 3: and Google gets more by their not being more. So
Speaker 3: I view it as win in sort of eight point
Speaker 3: type on the government's side, and win in sort of
Speaker 3: sixteen point type on Google. Said, so, here's what I mean.
Speaker 3: It's not a significant victory for the Justice Department. They
Speaker 3: did win some things, and you know, maybe that will
Speaker 3: help bring some competition into search. But I think Google
Speaker 3: won a lot by not losing very much. They get
Speaker 3: to keep Chrome. A lot of the remedies that the
Speaker 3: Department asked for and got even were cut down, circumscribed, diminished.
Speaker 3: And you know, whether what the judge did will end
Speaker 3: up changing the search business, I doubt but who knows.
Speaker 3: But we've now passed the point where the question will
Speaker 3: be will we get competition? And the question will just
Speaker 3: be is Google complying with the decree. Of course, all
Speaker 3: of that comes after a round of appeals, So there's
Speaker 3: much more to this, But in terms of, you know,
Speaker 3: the overall feeling about what we've done. I think it's,
Speaker 3: you know, from a public point of view, a disappointment.
Speaker 2: So the big headline was zoeas will Google be forced
Speaker 2: to sell Chrome? We'll have to divest. So Google doesn't
Speaker 2: have to do that. Why did Judge Meta decide not
Speaker 2: to make Google divest Chrome?
Speaker 3: So this is a second point that pervades Judge Meta's decision.
Speaker 3: Rightly in a legal sense, but I think not so
Speaker 3: correct from a policy point of view and really where
Speaker 3: the law ought to be. So this is in many
Speaker 3: ways a very conservative opinion. It's the judge expressing what
Speaker 3: judges often express is that they understand the limits of
Speaker 3: who they are, what the institution can do, and what
Speaker 3: they want to do on an ongoing basis. So they're
Speaker 3: conservative about this. And here the government's plaintiffs are asking
Speaker 3: them to do some pretty strong restructuring of one of
Speaker 3: the superstar firms in the United States. So you got
Speaker 3: to be a little modest. Now. The judge backs up
Speaker 3: his modesty with a lot of quotations from the Court
Speaker 3: of Appeals and recently from the Supreme Court in a
Speaker 3: different anti trust case opinion written by Justice Gorsuch, which
Speaker 3: counsels let's be careful a little bit. So the ask
Speaker 3: that Chrome be divested structural relief is something that the
Speaker 3: DC Circuit itself. Remember, Judge Meta is a district court
Speaker 3: judge overseen by a Court of Appeals from the DC
Speaker 3: Circuit District of Columbia Circuit, so he's required to follow
Speaker 3: the law from that circuit. The law from that circuit
Speaker 3: on remedies is actually pretty conservative and cautious, and that
Speaker 3: stems from actually the Microsoft case, which is much the
Speaker 3: template for the complaint that the government filed and for
Speaker 3: the government's theories. So you know, they said, well, when
Speaker 3: it comes to structural relief, restructuring, reorganizing a company, you
Speaker 3: really need some strong proof before you do that. You
Speaker 3: need to watch out. And so he took those admonitions
Speaker 3: to heart and just didn't find enough to overcome that
Speaker 3: sort of a presumption that you know, you don't do
Speaker 3: this unless you really have to do it for effective relief.
Speaker 3: And this then goes to the second part that maybe
Speaker 3: the government didn't make an effective enough case for divesting
Speaker 3: Chrome and maybe made it seem too easy. So stuck
Speaker 3: with all of that, he backed away from it.
Speaker 2: How much did AI play into his decision, So that's.
Speaker 3: Maybe the real lead which we're now burying. I think
Speaker 3: his decision is all about it, frankly, and I think
Speaker 3: that he's betting, and many in the industry, and if
Speaker 3: you listen to some of the news shows, are just
Speaker 3: simply betting that AI is going to replace search as
Speaker 3: we know it with something else that's not search as
Speaker 3: we know it, or maybe as you and I know it,
Speaker 3: but just simply getting information, and that Google Search, that product,
Speaker 3: no matter what he does in this opinion, is going
Speaker 3: to be eclipsed by some AI product, and I think
Speaker 3: that that permeates. I think that he views generative AI
Speaker 3: as coming to the rescue of competition.
Speaker 2: Yeah. Some say it's already eroding Google's events.
Speaker 1: Yea.
Speaker 3: The data seemed to show. He mentions this in his
Speaker 3: opinion that searches on Safari have decreased. You know, people
Speaker 3: seem to be going directly to you know, chat, GPT
Speaker 3: or Perplexity or some of these other AI assistant things
Speaker 3: and just getting information that way. And this is the
Speaker 3: destructive force of innovation, as the economist Joseph Schumpeter talked
Speaker 3: about many years ago. So maybe he's right, and you
Speaker 3: know that may mean that sort of didn't matter what
Speaker 3: he did so long as AI lives. But of course
Speaker 3: the worry is that we'll just replicate the current structure
Speaker 3: of the tech platform. Superstar firms will just control AI,
Speaker 3: and we won't have moved to new competition, but we'll
Speaker 3: have a different product.
Speaker 2: He's ordering Google to share data with rivals to open
Speaker 2: up competition in online search. Google has to share some
Speaker 2: of the data with competitors, but not some of its
Speaker 2: most important data.
Speaker 3: Would you say, well, here again, it's hard to say
Speaker 3: exactly what our important data. You could say all of
Speaker 3: the data are important, the more the more. But you know,
Speaker 3: this particularly involves the search index, which is something that
Speaker 3: Google has done really well, and the government in some
Speaker 3: ways didn't ask for as much as it could, which
Speaker 3: would have been a license to the index itself. What
Speaker 3: they wanted is some help with the data so competitors
Speaker 3: could build an index. And even with that, the judge
Speaker 3: cut down the kinds of data that will be required
Speaker 3: to be disclosed, and to me, even more importantly, the
Speaker 3: timing of the disclosure. So for some of these data
Speaker 3: it's a one time snapshot, which strikes me. As you know,
Speaker 3: the judge calls at a kickstart for competition. Yeah, like
Speaker 3: a kick in the rear. I don't know, you know,
Speaker 3: a one time thing for some very important parts of
Speaker 3: some basic information to help them put together a better
Speaker 3: index of the web. There's an awful lot of information
Speaker 3: out there, and indexing it is critical for an effective
Speaker 3: search engine. And you know, when it comes to sort
Speaker 3: of this user side data to click and query. You
Speaker 3: know what we do when we get free search is
Speaker 3: create data that's worth a heck of a lot of
Speaker 3: money for which we don't get paid, we being you
Speaker 3: and me and all the other users. But these data
Speaker 3: here Again, the judge cuts down the request, gives some
Speaker 3: amount of the request, and then sort of puts on
Speaker 3: some limits yet to be decided about how often this
Speaker 3: will be disclosed more than once. Now it's not just
Speaker 3: a snapshot, but the cap yet to be determined by
Speaker 3: this technical committee that the decree is going to set up.
Speaker 3: So I don't know, it's you know, it's hard for
Speaker 3: me to say exactly, you know, will this enable competitors
Speaker 3: real to really get an effect of competing search engine
Speaker 3: or will it not quite be enough? And in some
Speaker 3: ways this goes to what I've always viewed as the
Speaker 3: underlying problem with these decrees is a judge trying to
Speaker 3: say what competitors need to succeed, instead of a judge saying,
Speaker 3: don't ask me, just come back, you know, Google, just
Speaker 3: come back and let me know whether there's competition or not.
Speaker 3: And if there isn't, we're going to have to do
Speaker 3: something more about it. You know, trying for judges or
Speaker 3: even the Justice Department, which apparently at least is still
Speaker 3: made up of some lawyers. You know, trying to design
Speaker 3: these remedies is tough, and you can feel it with
Speaker 3: what the judge is written in this opinion. It's hard
Speaker 3: and trying to figure out what the effect is going
Speaker 3: to be. And he says at the beginning, you know,
Speaker 3: I don't have a crystal ball. Other judges have used
Speaker 3: that worry as well when being asked to predict effects
Speaker 3: in future markets.
Speaker 2: Coming up next on the Bloomberg Lawn Show, I'll continue
Speaker 2: this conversation with NYU law professor Harry First. Google has
Speaker 2: already said it's going to appeal. Will judge Meta's decisions
Speaker 2: stand up? I'm June Grosso. When you're listening to Bloomberg,
Speaker 2: a federal judge ordered a shake up of Google's search
Speaker 2: engine in an attempt to curb the power of an
Speaker 2: illegal monopoly, while rejecting the government's attempt to break up
Speaker 2: the company and impose other restraints. The two hundred twenty
Speaker 2: six page decision made by DC Federal Judge on Meta
Speaker 2: will likely ripple across the technological landscape at a time
Speaker 2: when the industry is being reshaped by artificial intelligence, as
Speaker 2: companies like Chat, GPT and Perplexity try to upend Google's
Speaker 2: long held position as the Internet's main gateway. Those innovations
Speaker 2: and competition reshape the judge's approach to the remedies in
Speaker 2: the nearly five year old anti trust case, Judge Meta wrote,
Speaker 2: unlike the typical case, where the court's job is to
Speaker 2: resolve a dispute based on historic facts, here the judge
Speaker 2: is asked to gaze into a crystal ball and look
Speaker 2: to the future. Not exactly a judge's forte. I've been
Speaker 2: talking to anti trust law professor Harry First of NYU
Speaker 2: Law School. So, Harry, the judge is directing both sides
Speaker 2: to come back by September tenth with a new remedy
Speaker 2: proposal consistent with his ruling or file a status report
Speaker 2: outlining any disagreements. Do you expect anything real from that?
Speaker 3: I think what he's looking for is he's got to
Speaker 3: write this down. He's got to enter a decree that
Speaker 3: has definitions, that has specific language that's understandable. I mean,
Speaker 3: the first challenge is figuring out sort of what to
Speaker 3: accept in the party's proposals. But the second challenge is
Speaker 3: the drafting of that decree. I think that's what he's
Speaker 3: looking for. Next, you know, give me your actual proposed decrees.
Speaker 3: The parties have done that, they have proposed final judgments,
Speaker 3: but now they've got to take here's what he's ordered,
Speaker 3: and I think he wants language now. He also hinted
Speaker 3: at some fallback potential remedies. One of the problems I
Speaker 3: think that he faced, and it surfaced in a question
Speaker 3: that he ended up posing on the record, which is
Speaker 3: pretty rare. You know, tell me why you ask for
Speaker 3: this particular thing, Google, please explain it. And he had
Speaker 3: a final hearing. But as he sits down to start
Speaker 3: to write the opinion, he he's thinking, I've got an
Speaker 3: interesting different idea here that no one's proposed to me.
Speaker 3: Maybe you should think about it. So there's sort of
Speaker 3: some version of like conditionality maybe on payments for you know,
Speaker 3: not allowing certain kinds of payments for you said, you
Speaker 3: can make any kinds of payments. But maybe there's a
Speaker 3: fallback position. Maybe they had a fallback position for Chrome
Speaker 3: that they might want to articulate now, you know, just
Speaker 3: they said, let's get rid of it, but maybe there's
Speaker 3: some fallback. So this may be an opportunity also for
Speaker 3: the parties to propose, in addition to clarifying language, some
Speaker 3: modifications for what he's imposed. So maybe that's that will
Speaker 3: also go on as well. So who said this, Yogi Barret.
Speaker 3: It's not over till it's over, And it was Yogi
Speaker 3: Barrett right, well, allegedly apparently he never said anything that
Speaker 3: he's supposed to have said, which is another thing.
Speaker 2: Yeah, we'll discuss that next time.
Speaker 1: Now.
Speaker 2: As far as pay to play, the judge said that
Speaker 2: this exclusive deal that Google had with Apple where it
Speaker 2: pays it something like twenty billion a year to be
Speaker 2: of the search default on iPhones, et cetera, So they
Speaker 2: can still do that, but it just can't be exclusive.
Speaker 3: They can pay for the fault, but can't keep others
Speaker 3: from you know, putting another search bar or who knows what,
Speaker 3: but they can still pay for the fault, so they
Speaker 3: can pay anyone for having the default. The faults were
Speaker 3: never exclusive. I mean they were exclusives. So you know,
Speaker 3: you can only out of the box if you, you know,
Speaker 3: were original equipment manufacturer, handset manufacture, you know, an exclusive
Speaker 3: to put the Google search bar on if you wanted
Speaker 3: other programs, or you know, inexclusive. If you have an exclusive,
Speaker 3: you get revenue shares things like that. So maybe not that,
Speaker 3: but he basically said you can pay for the faults,
Speaker 3: which the testimony from the behavioral economist was that's the
Speaker 3: factual equivalent of a near exclusive because people don't change
Speaker 3: from defaults very often. You know, it's an old behavioral
Speaker 3: habit with which we're very familiar and with which Google's familiar.
Speaker 3: So the judge did suggest he did this in a footnote.
Speaker 2: You read the footnotes too, Harry, I'm impressed.
Speaker 3: Hey, I'm a not quite reformed law professor, and we
Speaker 3: always know you put the good stuff in the footnotes.
Speaker 3: But anyway, at least that's our version. But there is
Speaker 3: a footnote. It's not fourteen. And he said he could
Speaker 3: revisit the idea of a ban on paying for default
Speaker 3: but allowing to pay for distribution. So you could say, okay,
Speaker 3: if you distribute Google Search, that's fine, we'll pay you,
Speaker 3: but we can't pay you to make it the default
Speaker 3: search engine. Now me said, nobody's sort of raised this. Hello,
Speaker 3: No one raises so I don't know the effect. Hello,
Speaker 3: So maybe we'll get something. You could wonder whether that
Speaker 3: makes any difference, frankly, because once you distribute it, given
Speaker 3: the strength of this default in most people's experience, it
Speaker 3: may not make a difference whether you label a default
Speaker 3: or not. If you get you know, the Google win,
Speaker 3: you know on your phone, particularly where it's very strong
Speaker 3: because you want to use Google Search, and whether it
Speaker 3: was a default or not, or whether it's a fault
Speaker 3: in your Chrome browser, which it's going to be, you'll
Speaker 3: use it, and you know the payment won't be for
Speaker 3: requiring it to be a default, say on the iPhone.
Speaker 3: But you know, Apple may still make it a default
Speaker 3: unless they're offered a better alternative, which the testimony. The
Speaker 3: testimony from Eddie Q, the Apple guy involved, was that
Speaker 3: he wouldn't buy being for any amount of money. Ever,
Speaker 3: apparently so he needs something better, and is he going
Speaker 3: to take away Google Search full from Apple users? I
Speaker 3: doubt it. So there might be some modifications, but at
Speaker 3: the moment Google can still pay for default. And here
Speaker 3: again this was the judge's concern for the impact and
Speaker 3: being modest, sort of the impact on you could say,
Speaker 3: the whole eCos system of stopping those payments and you know,
Speaker 3: maybe wrecking Firefox, you know, go, you know, even you
Speaker 3: seem to be concerned about wrecking Apple. I didn't know
Speaker 3: that Apple was in such bad shape. But there we are.
Speaker 2: Well, the government said it's considering its next steps. I mean,
Speaker 2: I don't know what next steps it can take besides appeal.
Speaker 2: But Google has previously said it's going to appeal. So
Speaker 2: we assume we'll go to the Supreme Court. Right, It
Speaker 2: could be years, then years and years before this gets implemented.
Speaker 3: Yeah, it might not go to the Supreme Court. Court
Speaker 3: doesn't have to take it. Who you know, who knows
Speaker 3: the court didn't take Microsoft for example, So yeah, maybe, yes,
Speaker 3: maybe no. But the years is right. This will be
Speaker 3: a while yet, and we haven't seen but could see
Speaker 3: political interference with this. We really don't know. So there's
Speaker 3: a lot between now and then, I guess. But the
Speaker 3: liability decision, which he made more than a year ago,
Speaker 3: I guess is that the whole bundle is subject to
Speaker 3: appeal once a final judgment is entered, which he has
Speaker 3: not done yet. So once that's done, then the parties
Speaker 3: have you know, I think, sixty days to file their
Speaker 3: notices of appeal and then the process starts to play
Speaker 3: out in the Court of Appeals, you know, unless they
Speaker 3: start some sort of settlement negotiations or something.
Speaker 2: I mean, do you think that his opinion is conservative
Speaker 2: enough to survive the DC Court of Appeals?
Speaker 3: So he did a lot to try to survive review
Speaker 3: by the Court of Appeals. I mean, he relied quite
Speaker 3: heavily on you know, key decisions, particularly the Microsoft remedy decisions.
Speaker 3: And he also, oh, by the way, bolstered one of
Speaker 3: the potential weaknesses in the liability decision while he was
Speaker 3: at it. So I think it's not perfectly bulletproof the
Speaker 3: aspect of letting AI companies share in some of these data.
Speaker 3: If I were Google, I would be hitting on that
Speaker 3: whether that was you know, not warranted given as he
Speaker 3: started out by saying there was nothing at the trial
Speaker 3: about AI and there are ways of casting what he
Speaker 3: did as maybe not within the balance of what the
Speaker 3: goal was in the trial. So there's some potential issue there,
Speaker 3: and I think it is certainly possible. I mean, I
Speaker 3: assume Google will pursue that, So I think it's a
Speaker 3: pretty you know, I mean, it could be more conservative.
Speaker 3: I guess he could have just given Google what Google wanted.
Speaker 3: But it's a carefully drawn opinion, and you know, time
Speaker 3: after time he sort of knocks the government plaintiffs back
Speaker 3: a bit by saying, you know, you've overreached, you're asking
Speaker 3: for too much. You know, we need to be modest, etc.
Speaker 1: Etc.
Speaker 2: Harry the trial later this month to determine remedies in
Speaker 2: a different case brought by the Justice Department, where a
Speaker 2: judge found that Google holds illegal monopolies in online advertising technology.
Speaker 2: How does that threaten Google? Is it more of.
Speaker 3: The same, Well, it is a little different. There's some
Speaker 3: a bit of remedy on advertising, but not very much
Speaker 3: because it's so much directed at effect on the search
Speaker 3: engine market so directly, not so much indirectly. I think
Speaker 3: we have to see it because from the beginning, the
Speaker 3: Justice Department has asked for structural relief to break apart
Speaker 3: the way Google does advertising, you know, to break it
Speaker 3: up in fact, and have them to vest certain parts
Speaker 3: of its advertising stack as they So this opinion is
Speaker 3: very skeptical about this structural relief said, you know, if
Speaker 3: nothing else works, then that may be possible. But the
Speaker 3: ad Tech case may be a case where you know,
Speaker 3: it's been directed at structural relief, so that may be okay.
Speaker 3: Another aspect is how much money Google has made from advertising,
Speaker 3: so it reinforces the notion that this has been a
Speaker 3: monopolized market, so you know, that may have some effect.
Speaker 3: It's important to note that that case is in a
Speaker 3: different federal circuit. It's not in the DC circuit, and
Speaker 3: it may be that the Justice Department chose to file
Speaker 3: there for a number of reasons, but one of it
Speaker 3: may be that on remedy wanting a structural remedy, the
Speaker 3: DC circuit is a bad place to bring a case
Speaker 3: like that given Microsoft, so maybe they were trying to
Speaker 3: avoid that by being in a different circuit, in the
Speaker 3: fourth circuit. So we've yet to see. I think she's
Speaker 3: been holding up on this spending meta's opinion on remedy.
Speaker 3: But you know they are fencing along on remedies hearing
Speaker 3: in that case, so that should happen relatively soon.
Speaker 2: Yes, I googled it and the trial is scheduled to
Speaker 2: begin on September twenty second. Thanks so much, Harry. As always,
Speaker 2: that's Professor Harry First of NYU Law School, coming up
Speaker 2: next on the Bloomberg Law Show. More than one thousand
Speaker 2: HHS employees are calling on rfk Junior to step down.
Speaker 2: I'm June Grosso and you're listening to Bloomberg today. More
Speaker 2: than a thousand current and former employees across the Department
Speaker 2: of Health and Human Services signed a letter calling for
Speaker 2: Health Secretary Robert F. Kennedy Junior's resignation, accusing him of
Speaker 2: endangering the health of Americans. The new letter comes just
Speaker 2: two days after nine former directors and acting directors of
Speaker 2: the Centers for Disease Control and Prevention wrote an op
Speaker 2: ed also condemning Kennedy for endangering every American's health. Doctor
Speaker 2: Richard Besser was one of the signees.
Speaker 1: We have grave concerns that the Secretary of Health is
Speaker 1: endangering the health of people across our nation by not
Speaker 1: letting the agency do its job, not following the science
Speaker 1: and putting out guidance around COVID vaccine that is leading
Speaker 1: to confusion.
Speaker 2: But it appears Kennedy is not listening. He wrote in
Speaker 2: a Wall Street Journal op ed published today that his
Speaker 2: changes are restoring trust in the CDC that was lost
Speaker 2: during the COVID pandemic. That's something he said before.
Speaker 4: I'm very confident in the political staff that we have
Speaker 4: down there now that they're going to be able to
Speaker 4: accomplish that and ensure the confident functionality of that agency.
Speaker 2: My guest is Harry Nelson, a partner at Leech Tishman
Speaker 2: Nelson Hardiman explain some of the concerns that healthcare professionals
Speaker 2: have about Kennedy.
Speaker 1: Yeah.
Speaker 5: I think first and foremost what they're sounding the alarm
Speaker 5: over is the politicization of public health itself. It just
Speaker 5: seems that, you know that we're kind of in a
Speaker 5: battle where science is losing ground over ideology in steering
Speaker 5: health policy. So, you know, I think that op ed
Speaker 5: was intended to be as public a form of rebuke
Speaker 5: for RSK and the way he's reshaping the CDC and
Speaker 5: public health policy as could be. You know, it was
Speaker 5: the vaccines left week or two, but it's going to
Speaker 5: move on to you know, the CONTI conversation over environmental
Speaker 5: causes of autism and all the ways in which he
Speaker 5: has really become, you know, very politicized and moving away
Speaker 5: from science and kind of driving our public health policy.
Speaker 2: He's canceled medical research how much and in what areas well?
Speaker 5: I mean the cuts medical research have mostly come through
Speaker 5: National Institute of Health NIH grants, over a billion dollars
Speaker 5: in NIH grant cuts across different institutions, and you know,
Speaker 5: just a massive, you know, reduction in kind of established
Speaker 5: leadership in positions that were previously not considered political, from
Speaker 5: the leadership of CDC itself, removing Susan Monarez after just
Speaker 5: a few weeks on the job, to completely clearing out
Speaker 5: the Advisory Committee on Vaccines, and so he's just done
Speaker 5: a wholesale shift on public policy in ways that will
Speaker 5: be experiencing the ramifications up for years to come. It's
Speaker 5: not decades.
Speaker 2: What probably prompted this, the final straw, if you want
Speaker 2: to call it, is the attempt to fire Manarez. So
Speaker 2: she was just in there for a month. Didn't they
Speaker 2: know what she stood for? What happened?
Speaker 5: You know? I think essentially she was really just following
Speaker 5: sort of standard protocol at the CDC, and it was
Speaker 5: clear that there was tension escalating as there was a
Speaker 5: push from RFK and the people around him to narrow
Speaker 5: federal COVID vaccine recommendations, to get rid of the standing
Speaker 5: Advisory Committee, to start really changing the Vaccines for Children program,
Speaker 5: And essentially it became clear that she was standing in
Speaker 5: the way of some of the very aggressive moves that
Speaker 5: RFK and as people wanted to make.
Speaker 2: RFK promised he wouldn't take vaccines away from anyone, but
Speaker 2: tell us what happened with this guidance, the recent guidance,
Speaker 2: and what it means for people who not in those
Speaker 2: categories but want to get vaccines.
Speaker 5: I mean, so the main thing was that, you know,
Speaker 5: the SDA essentially planned the break you could say on
Speaker 5: sort of broad access to COVID boosters. Vaccines will remain
Speaker 5: available and covered for sixty five and over and for
Speaker 5: younger people who have a specific risk factor, but in
Speaker 5: general are not going to be available for people under
Speaker 5: sixty five without some specific risk factor, and of course
Speaker 5: it's an issue of access. It now appears that there
Speaker 5: are a number of states in which is going to
Speaker 5: be very difficult to get vaccines, and also the cost
Speaker 5: of vaccines because the change in health policy is going
Speaker 5: to mean that the insurance companies will not be doing
Speaker 5: any cost sharing on them, so these vaccines will be
Speaker 5: much more expensive. It's clear that there's going to be
Speaker 5: a difficult time for people who are wanting to get vaccinated.
Speaker 5: And you know, the real question that will come likely
Speaker 5: at the end of the next flu season that's not
Speaker 5: yet here, is what the death rate, what the hospitalizations
Speaker 5: will be. I think a lot of people will be
Speaker 5: watching closely to see what the net impact of these
Speaker 5: changes is going to be.
Speaker 2: So is that for the COVID vaccine? What about flu shots?
Speaker 5: This was specifically a COVID policy, but it's clear that
Speaker 5: there are going to be significant limits on the flu
Speaker 5: vaccine as well. But this specific policy was update to
Speaker 5: eligibility for the various COVID nineteen you know vaccines you'll
Speaker 5: remember as Pfizer, Maderna, and Novovac. It's certainly going to
Speaker 5: have a broader effect on access to other vaccines, just
Speaker 5: because so many pharmacies and insurance companies are taking their
Speaker 5: leads from COVID policy for purposes of broader like influenza
Speaker 5: B and other flu related shots.
Speaker 2: Is there anything that can be done or is it
Speaker 2: just a question of you know, Kennedy's there and that's
Speaker 2: it unless he's fired for some reason.
Speaker 5: Obviously, we're going to see lawsuits undoubtedly and challenges to
Speaker 5: the firing of CDC director essentially, you know, questioning whether
Speaker 5: there's a violation of separation of powers here and whether
Speaker 5: there's any kind of retaliatory aspect to this. There certainly
Speaker 5: is the possibility that states could start enacting their own
Speaker 5: coverage mandates. We already see California and New York Massachusetts
Speaker 5: are kind of moving in that direct and Congress could
Speaker 5: step in here, although it doesn't seem like that is
Speaker 5: likely to happen. The real remedy here, I think, is
Speaker 5: if the American public are upset about this. It's not
Speaker 5: only in the courts or in Congress. It's also just
Speaker 5: by a public outcry to make it clear to President
Speaker 5: Trump and his administration that this is really, you know,
Speaker 5: a high priority issue that's concerning people. I do think
Speaker 5: there are political remedies that are legal remedies, but the
Speaker 5: train that's sort of leaving the station, then if they're
Speaker 5: going to happen. We need to see some action, you know, eminently.
Speaker 2: In this up ed, the CDC directors called on Congress
Speaker 2: to exercise oversight authority over the Department of Health and
Speaker 2: Human Services. What can Congress do if they wanted to?
Speaker 5: Congress certainly could hold hearings, They could start to subpoena
Speaker 5: you know, administration officials. They could certainly exercise you know,
Speaker 5: authority to restore funding to state and local health agencies
Speaker 5: that's been cut. I mean, I think there is quite
Speaker 5: a bit that they could do. I think investigating holding hearings,
Speaker 5: you know, demanding accountability from RFK, from the people reporting
Speaker 5: up to him, and filling some of the funding gaps
Speaker 5: are the obvious things that they could do. Kennedy, it
Speaker 5: doesn't seem that Congress is at this moment demanding the
Speaker 5: kind of answers on everything from the vaccine policy to
Speaker 5: the leadership changes and the funding shifts that you know,
Speaker 5: people concerned with public health might hope that they would.
Speaker 2: Well, Kennedy's going to appear on Thursday, I believe, so
Speaker 2: maybe we'll see some of that. But you know, Bill Cassidy,
Speaker 2: and he was the Louisiana Republican senator who delivered the
Speaker 2: key vote to confirm Kennedy, and I remember he said,
Speaker 2: I'm something like I'm trusting you on vaccines. He called
Speaker 2: on HHS to indefinitely postpone it's Vaccine Advisory Committee meeting
Speaker 2: on September eighteenth. That's not a long term solution.
Speaker 5: It's justesting, you know, Cenator Casey, who was as chair
Speaker 5: of the Senate Health Committee and as a doctor with
Speaker 5: someone whose vote was clearly pivotal in the confirmation, seems
Speaker 5: to be trying to walk a cautious line here asking
Speaker 5: for oversight, transparency, postponement on some of these critical vaccine
Speaker 5: advisory you know meetings. He's definitely an important voice here.
Speaker 5: What's been disappointing to me has been that, you know,
Speaker 5: RFK is basically just refusing to dress, you know, square
Speaker 5: on the issues. He seems to be just interested in
Speaker 5: deflecting blame and you know, kind of trying to stay
Speaker 5: on a higher level message about problems at the CDC
Speaker 5: and a need for strong leadership, but without really getting
Speaker 5: into the nuts and bolt of vaccine policy. And frankly,
Speaker 5: there's no way to see the actions being taken now
Speaker 5: as consistent with his testimony during the confirmation hearing.
Speaker 2: He is suggesting Silicon Valley investor and entrepreneur Jim O'Neill
Speaker 2: is a new acting CDC director. Tell us about him.
Speaker 5: Yeah, I think people are worried that Jim O'Neill is,
Speaker 5: you know, is not coming from the world of public
Speaker 5: health and science. O'Neill, first of all, was a deputy
Speaker 5: to RFK already and seems to be aligned with his
Speaker 5: vision that he's just rebuilding the CDC. He's not expected
Speaker 5: to put any challenge forward, you know, in the name
Speaker 5: of science or in the name of public health. Is
Speaker 5: likely that he's just going to be, you know, a
Speaker 5: mouthpiece for RFK and for all the changes that are
Speaker 5: already being made. So I don't think anyone who's concerned
Speaker 5: about what's going on is that all reassured by O'Neill's selection.
Speaker 2: Does the CDC director have to be confirmed by the Senate?
Speaker 5: Yeah, the CDC director is a confirmed position. Yeah. I
Speaker 5: think a lot of it will flow from how much
Speaker 5: feedback the senators are getting from their constituents. You know.
Speaker 5: It certainly is an opportunity to sort of take the
Speaker 5: pulse of where America is standing on these issues. My
Speaker 5: understanding is that he can serve six or seven months
Speaker 5: without a formal confirmation hearing, so we may see this
Speaker 5: issue pushed off until, you know, early twenty twenty six.
Speaker 2: So Trump said he would allow RFK Junior to go
Speaker 2: wild on healthcare, and he certainly has done that. Are
Speaker 2: there any restrictions on what RFK Junior can do.
Speaker 5: It's hard to see where Trump is having misgivings. I mean,
Speaker 5: you know, there's certainly are areas where they were aligned.
Speaker 5: We've seen, you know, President Trump posting on true Social
Speaker 5: urging pharmaceuticals to release more data and sort of, you know,
Speaker 5: claiming that there's some kind of hidden story about vaccine efficacy.
Speaker 1: You know.
Speaker 5: I think it's funny because President Trump has taken pride
Speaker 5: at different points on Operation Warp Speed in the extent
Speaker 5: to which his administration brought the vaccines out in the
Speaker 5: middle of COVID, when, by the way, we had in
Speaker 5: the course of two years we look at the data,
Speaker 5: now over a million Americans dead in the first two
Speaker 5: years of COVID. I think President Trump is largely distancing
Speaker 5: himself from RFK specific actions and still trying to protect
Speaker 5: his vaccine legacy. I would think that there's probably some
Speaker 5: discomfort with the more aggressive aspects of RFK, but we
Speaker 5: have yet to see like a real action to sort
Speaker 5: of rein him.
Speaker 2: In Well, what was surprising to me is that they
Speaker 2: had a gallup pole in July and Kennedy had higher
Speaker 2: favorability ratings than Trump and the vice president and others.
Speaker 5: Interesting. He's obviously a very polarizing figure. I mean, make
Speaker 5: America Healthy Again campaign has a lot of resonance. He's clearly,
Speaker 5: you know, someone who for people who were excited about
Speaker 5: what RK presented, he's delivering right, you know, whereas President
Speaker 5: Trump is definitely having to walk a line sort of
Speaker 5: affecting how people view him. But for people who buy
Speaker 5: into the public health agenda that's being carried out in
Speaker 5: this administration, to them, RFK the hero.
Speaker 2: Okay, so we talk about the negative things, is he
Speaker 2: doing anything positive to make America healthy?
Speaker 5: There definitely are some good things. He's calling attention to
Speaker 5: big food and to you know, the need for a
Speaker 5: sort of new look at nutrition as a driver of health.
Speaker 5: You know, the people who support him see him as
Speaker 5: a reformer fighting against entrenched institutions, and I think MAHA
Speaker 5: make American Health against speaks to people who are frustrated
Speaker 5: with public health bureaucracy. But the problem is that when
Speaker 5: you look at the op ed piece that came out,
Speaker 5: for example, I mean the other side has a strong
Speaker 5: scientific grounding to say that he's taking risks with American
Speaker 5: health buy things like dismantling vaccine infrastructure. So there are
Speaker 5: things that are positive. He's calling attention to chronic disease.
Speaker 5: He's doing, you know, good things to sort of try
Speaker 5: to create a populist focus on chronic illness in America
Speaker 5: and the way in which American healthcare could stand to
Speaker 5: be changed and shake it up. But I think we're
Speaker 5: seeing that he's also throwing out the baby with the
Speaker 5: bathwater on things like vaccine policy that I expect we'll
Speaker 5: see is really keeping Americans alive and out of the
Speaker 5: hospital in much larger numbers than without it.
Speaker 2: How likely is it that during the winter months we'll
Speaker 2: see a resurgence of COVID without these vaccines.
Speaker 5: I think that's a critical question, and I think will
Speaker 5: be watching. Obviously nobody is hoping for bad news, but
Speaker 5: I think people are going to be watching very very
Speaker 5: closely for the number of hospitalizations and the number of deaths.
Speaker 5: And I do think that clearly by narrowing vaccine eligibility
Speaker 5: to the sixty five and older group and to people
Speaker 5: with a high risk condition, there's a bet being made
Speaker 5: that those populations are the most at risk and have
Speaker 5: the biggest central benefit. And on the other side, is this,
Speaker 5: you know, not backed up by science, that there's negative
Speaker 5: effects of vaccines for healthier, younger Americans. And so I
Speaker 5: think everyone's should be watching the numbers months by month
Speaker 5: as they get released closely this season, and certainly we
Speaker 5: should all be praying for a mild flu season, you know,
Speaker 5: not to have deadly variants of COVID, you know all
Speaker 5: the other flues that are out there, bird flues. You know,
Speaker 5: we should obviously be hoping for the best, but we're
Speaker 5: definitely not coming into the season in a state of
Speaker 5: high preparedness. If the opposite happens, and if we have
Speaker 5: something deadly, well, as.
Speaker 2: You say, let's hope not. Thanks so much, Harry. That's
Speaker 2: healthcare attorney Harry Nelson of Leech Tishman Nelson Hardiman. And
Speaker 2: that's it for this edition of the Bloomberg Law Show.
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