1 00:00:02,160 --> 00:00:05,800 Speaker 1: You're listening to the Bloomberg Lawn Podcast. Catch us weekdays 2 00:00:05,840 --> 00:00:09,680 Speaker 1: at ten pm Easter on Bloomberg dot Com, the iHeartRadio app, 3 00:00:09,720 --> 00:00:12,600 Speaker 1: and the Bloomberg Business App, or listen on demand wherever 4 00:00:12,640 --> 00:00:13,800 Speaker 1: you get your podcasts. 5 00:00:16,239 --> 00:00:18,960 Speaker 2: Welcome to the Bloomberg Law Show. I'm Lydio Wheeler and 6 00:00:19,000 --> 00:00:19,720 Speaker 2: I'm Greg Store. 7 00:00:19,880 --> 00:00:22,320 Speaker 3: We're in for Jin Grosso, who's out this week. Head 8 00:00:22,320 --> 00:00:24,640 Speaker 3: In this hour, we'll talk about the legal fight over 9 00:00:24,680 --> 00:00:28,040 Speaker 3: whether former President Donald Trump is prohibited under the Constitution 10 00:00:28,160 --> 00:00:30,640 Speaker 3: from holding office again because of the role he played 11 00:00:30,680 --> 00:00:33,040 Speaker 3: in the January sixth attack on the Capitol. 12 00:00:33,240 --> 00:00:35,360 Speaker 2: All that to come, but first we're going to talk 13 00:00:35,400 --> 00:00:37,080 Speaker 2: about clean beauty products. 14 00:00:37,840 --> 00:00:39,839 Speaker 4: You know, we all try to become more conscious of 15 00:00:39,880 --> 00:00:41,880 Speaker 4: the things we're putting in our body. 16 00:00:41,960 --> 00:00:44,080 Speaker 3: It's not just limited to food, but also includes your 17 00:00:44,120 --> 00:00:45,080 Speaker 3: beauty products. 18 00:00:45,159 --> 00:00:47,720 Speaker 5: Yes, your skin is your biggest org out. 19 00:00:47,800 --> 00:00:49,680 Speaker 6: Oh yeah, well they going down too, Like even with 20 00:00:49,720 --> 00:00:52,560 Speaker 6: something like sunscreen, Like, well, we do these micro zincs. 21 00:00:52,600 --> 00:00:54,560 Speaker 6: Well zinc isn't terrible for you, but you know, you 22 00:00:54,600 --> 00:00:55,960 Speaker 6: can do all these different other things that are non 23 00:00:56,040 --> 00:00:58,240 Speaker 6: nano to where they don't go into your bloodstream. There's 24 00:00:58,280 --> 00:00:59,800 Speaker 6: just so much that needs to be learned. 25 00:01:00,440 --> 00:01:03,160 Speaker 2: That was a clip from Daytime Chicago. The new show 26 00:01:03,200 --> 00:01:06,800 Speaker 2: did a segment on the best clean beauty products like icreams, cleansers, 27 00:01:06,840 --> 00:01:11,080 Speaker 2: and moisturizers. Some big retailers have now found themselves entangled 28 00:01:11,080 --> 00:01:14,319 Speaker 2: in litigation over these very products. Joining us now to 29 00:01:14,360 --> 00:01:17,480 Speaker 2: talk about the litigation is Heather Bustos, a Food and 30 00:01:17,560 --> 00:01:22,440 Speaker 2: Drug Administration compliance attorney and managing partner of Bustos Law Group. Heather, 31 00:01:22,560 --> 00:01:25,479 Speaker 2: thanks for joining us. Can you tell us what retailers 32 00:01:25,520 --> 00:01:27,560 Speaker 2: are being sued over and why? 33 00:01:27,920 --> 00:01:30,880 Speaker 7: Sure? So, thank you so much for having me so 34 00:01:31,480 --> 00:01:36,640 Speaker 7: right now, Target and Sephora are actually facing lawsuits, and 35 00:01:36,720 --> 00:01:40,520 Speaker 7: really the issue is that they are essentially claiming that 36 00:01:40,560 --> 00:01:44,640 Speaker 7: the products that they're selling are considered clean, and these 37 00:01:44,760 --> 00:01:51,240 Speaker 7: lawsuits are stating that consumers do not really agree with 38 00:01:51,320 --> 00:01:54,640 Speaker 7: the definition of clean that Sephori and Target have and 39 00:01:54,720 --> 00:01:57,880 Speaker 7: so this is one of many. These are a couple 40 00:01:57,920 --> 00:02:00,800 Speaker 7: of many lawsuits that are now in the wings and 41 00:02:01,040 --> 00:02:02,960 Speaker 7: probably will continue moving forward. 42 00:02:03,240 --> 00:02:05,520 Speaker 3: Heather. For those of us who think of clean beauty 43 00:02:05,560 --> 00:02:07,960 Speaker 3: as making sure there's a bar of soap in the shower, 44 00:02:08,040 --> 00:02:10,400 Speaker 3: can you just sort of define a little bit what 45 00:02:10,400 --> 00:02:12,920 Speaker 3: we're talking about. Are we talking about products that you know, 46 00:02:13,000 --> 00:02:15,800 Speaker 3: don't have things that harm the person using it. Are 47 00:02:15,840 --> 00:02:20,680 Speaker 3: we talking about products that are environmentally sensitive? Are both? 48 00:02:20,919 --> 00:02:23,520 Speaker 7: I think there's a little bit of both. There are 49 00:02:24,040 --> 00:02:28,919 Speaker 7: ranges of definitions amongst different companies, and that's why there's 50 00:02:29,320 --> 00:02:33,560 Speaker 7: so much confusion around the term. But most people tend 51 00:02:33,600 --> 00:02:38,320 Speaker 7: to think it means free from harmful chemicals. In some cases, 52 00:02:39,360 --> 00:02:43,200 Speaker 7: harmful is also an issue where it can be, you know, 53 00:02:43,280 --> 00:02:48,320 Speaker 7: something that's cancer causing, and people have difficulty even defining 54 00:02:48,480 --> 00:02:53,920 Speaker 7: what's considered harmful, and so that's why this litigation is 55 00:02:53,960 --> 00:02:57,880 Speaker 7: happening because essentially the definition is not really clear. 56 00:02:58,160 --> 00:03:01,040 Speaker 2: Can you walk us back again us a little history here. 57 00:03:01,400 --> 00:03:04,799 Speaker 2: When did this trend begin and how did it start? 58 00:03:05,000 --> 00:03:08,600 Speaker 7: That's a great question. So clean beauty kind of began 59 00:03:08,840 --> 00:03:12,920 Speaker 7: as really with makeup in the nineteen seventies, and then 60 00:03:13,080 --> 00:03:16,760 Speaker 7: it moved into the clean eating movement during the nineteen 61 00:03:16,800 --> 00:03:21,320 Speaker 7: nineties in California, and since then, obviously we've seen a rise. 62 00:03:21,600 --> 00:03:25,160 Speaker 7: It's really popular with gen z and millennials, and so 63 00:03:25,800 --> 00:03:29,240 Speaker 7: this has become like a really strong marketing term and 64 00:03:29,360 --> 00:03:33,120 Speaker 7: it allows companies to really succeed in the market. Utilizing 65 00:03:33,280 --> 00:03:35,520 Speaker 7: clean you know in their marketing. 66 00:03:35,840 --> 00:03:39,480 Speaker 3: Are there any regulations out there? The Food and Drug Administration, 67 00:03:39,560 --> 00:03:43,360 Speaker 3: the Federal Trade Commission, it states, anybody who has tried 68 00:03:43,400 --> 00:03:45,560 Speaker 3: to define what clean means. 69 00:03:46,120 --> 00:03:49,600 Speaker 7: So the FTC does have some green guides, what they 70 00:03:49,640 --> 00:03:54,000 Speaker 7: call green guides, that go into some vague definitions, but 71 00:03:54,120 --> 00:03:58,240 Speaker 7: not specific to the term clean. That's why these lawsuits 72 00:03:58,320 --> 00:04:01,760 Speaker 7: have been able to move forward is because there's not 73 00:04:01,880 --> 00:04:04,640 Speaker 7: a lot of, you know, clarity on what the meaning is. 74 00:04:04,880 --> 00:04:08,640 Speaker 2: What about regulations for advertisers, you know, aren't there rules 75 00:04:08,680 --> 00:04:12,880 Speaker 2: about deceptive or unfair advertising practices? And would this even 76 00:04:13,040 --> 00:04:16,040 Speaker 2: fall into that? Like is this considered deceptive to call 77 00:04:16,120 --> 00:04:19,080 Speaker 2: something clean if we don't really know how to define clean? 78 00:04:19,600 --> 00:04:19,800 Speaker 1: Right? 79 00:04:19,880 --> 00:04:22,920 Speaker 7: And that is that is the big question, and that 80 00:04:23,080 --> 00:04:25,599 Speaker 7: is what the courts will have to kind of come 81 00:04:25,800 --> 00:04:28,160 Speaker 7: come up with, you know, the answer to that, because 82 00:04:28,279 --> 00:04:31,720 Speaker 7: essentially you're looking at a consumer's perspective. That's what the 83 00:04:31,800 --> 00:04:35,120 Speaker 7: FDA uses the FTC. They look at, you know, what 84 00:04:35,240 --> 00:04:38,680 Speaker 7: a lay person would look at that product and essentially 85 00:04:38,800 --> 00:04:43,200 Speaker 7: think clean means, and so they will have to come 86 00:04:43,320 --> 00:04:44,320 Speaker 7: up with that definition. 87 00:04:44,680 --> 00:04:47,120 Speaker 3: Tell us a little more about these lawsuits that are 88 00:04:47,200 --> 00:04:51,640 Speaker 3: out there against folks like Target and Sephora, what who's 89 00:04:51,680 --> 00:04:55,200 Speaker 3: behind them, what are they claiming, what are they asking for? 90 00:04:55,680 --> 00:04:59,760 Speaker 7: Currently? I'm there are quite a few plaintiffs attorneys that 91 00:05:00,080 --> 00:05:02,760 Speaker 7: are bringing consumer lawsuits. And this is not just in 92 00:05:02,800 --> 00:05:05,560 Speaker 7: the cosmetic space. This is happening in the food space, 93 00:05:05,600 --> 00:05:10,919 Speaker 7: the supplement space, and essentially it's going back to deceptive practices, 94 00:05:10,960 --> 00:05:15,159 Speaker 7: and they're claiming that companies are being deceptive in their 95 00:05:15,200 --> 00:05:19,400 Speaker 7: marketing and they're using terms that would deceive the customer 96 00:05:19,480 --> 00:05:23,520 Speaker 7: into purchasing it. And so that's where a lot of 97 00:05:23,520 --> 00:05:24,800 Speaker 7: these issues are coming from. 98 00:05:24,880 --> 00:05:27,680 Speaker 2: What are the retailers here, Sephora and Target saying in 99 00:05:27,720 --> 00:05:28,880 Speaker 2: response to this litigation? 100 00:05:29,240 --> 00:05:33,200 Speaker 7: In the lawsuits themselves, essentially they're stating that they haven't 101 00:05:33,240 --> 00:05:37,719 Speaker 7: made any environmental claims. So I think at this point 102 00:05:37,760 --> 00:05:41,720 Speaker 7: they're trying to claim that number one, that the definitions 103 00:05:41,760 --> 00:05:45,200 Speaker 7: are not solid and number two that you know, they're 104 00:05:45,240 --> 00:05:48,159 Speaker 7: not actually being deceptive, And so it's really going to 105 00:05:48,200 --> 00:05:51,960 Speaker 7: come down to a lot of evidence about what consumers 106 00:05:52,040 --> 00:05:53,800 Speaker 7: believe these terms mean. 107 00:05:54,080 --> 00:05:58,279 Speaker 3: Why is this litigation happening now? If clean beauty products 108 00:05:58,320 --> 00:06:01,560 Speaker 3: have been around for decades all of a sudden, now 109 00:06:01,720 --> 00:06:07,120 Speaker 3: is there are these these allegations that companies are miss 110 00:06:07,200 --> 00:06:07,919 Speaker 3: marketing things. 111 00:06:08,240 --> 00:06:11,160 Speaker 7: I think we're seeing a trend and you're seeing this 112 00:06:11,320 --> 00:06:15,280 Speaker 7: for example in California where they're coming out and banning ingredients. 113 00:06:15,680 --> 00:06:19,920 Speaker 7: You're seeing consumers become more educated on what's in their products. 114 00:06:20,080 --> 00:06:22,800 Speaker 7: And a lot of it is I think social media. 115 00:06:23,160 --> 00:06:26,920 Speaker 7: There's a lot of education out there for consumers. Now. 116 00:06:27,240 --> 00:06:32,000 Speaker 7: You know, you have different apps like Yuka or websites 117 00:06:32,080 --> 00:06:36,120 Speaker 7: like the EWG which are giving consumers more education and 118 00:06:36,160 --> 00:06:39,320 Speaker 7: so that allowing them to know a little bit more 119 00:06:39,360 --> 00:06:42,520 Speaker 7: about what should or shouldn't be in their products. But yeah, 120 00:06:42,520 --> 00:06:45,000 Speaker 7: we're generally seeing that trend rise. 121 00:06:45,680 --> 00:06:49,040 Speaker 2: So you mentioned education, So what should consumers know about 122 00:06:49,120 --> 00:06:50,200 Speaker 2: clean beauty products? 123 00:06:50,560 --> 00:06:54,360 Speaker 7: I think that consumers need to definitely look deeper than 124 00:06:54,520 --> 00:06:59,240 Speaker 7: just the term clean and look at the ingredients themselves. Unfortunately, 125 00:06:59,680 --> 00:07:03,880 Speaker 7: in the there there are likely I don't want to 126 00:07:03,920 --> 00:07:07,680 Speaker 7: overgeneralize that companies think this per se, but if you 127 00:07:07,760 --> 00:07:12,120 Speaker 7: were to look at just regulations from you know, on 128 00:07:12,200 --> 00:07:16,120 Speaker 7: the FDA side and look at what ingredients are banned, 129 00:07:16,120 --> 00:07:21,280 Speaker 7: there's only eleven banned ingredients by the FDA for cosmetics, 130 00:07:21,480 --> 00:07:24,600 Speaker 7: and so a lot of companies may believe that well, 131 00:07:24,640 --> 00:07:28,760 Speaker 7: if the ingredients are not banned, then they can be used, 132 00:07:29,880 --> 00:07:33,240 Speaker 7: and so that's really that's really the issue that I 133 00:07:33,280 --> 00:07:33,720 Speaker 7: see there. 134 00:07:34,320 --> 00:07:36,240 Speaker 3: Sure, Heather, can you talk just a little bit about 135 00:07:36,280 --> 00:07:39,080 Speaker 3: the industry and the market. How big is it? How 136 00:07:39,120 --> 00:07:43,480 Speaker 3: many companies are there out there out there marketing clean 137 00:07:43,520 --> 00:07:46,400 Speaker 3: beauty products, and who is the target audience? 138 00:07:47,160 --> 00:07:51,600 Speaker 7: So the market is massive. I remember looking at it 139 00:07:51,640 --> 00:07:55,280 Speaker 7: and it said as of it's expected that by twenty 140 00:07:55,360 --> 00:07:58,680 Speaker 7: twenty seven, it'll be eleven point six billion dollars the 141 00:07:58,800 --> 00:08:02,280 Speaker 7: clean beauty markets. So it's massive, and that's why there's 142 00:08:02,400 --> 00:08:06,840 Speaker 7: a lot of benefit to marketing your product as clean, 143 00:08:07,000 --> 00:08:09,640 Speaker 7: and so a lot of companies are having to make 144 00:08:09,680 --> 00:08:14,920 Speaker 7: this decision between being competitive and trying to avoid risk 145 00:08:15,320 --> 00:08:18,840 Speaker 7: in the case of these the litigation that's coming forward. 146 00:08:19,040 --> 00:08:22,920 Speaker 2: You know, I mentioned earlier in the segment about that clip. 147 00:08:23,000 --> 00:08:26,720 Speaker 2: They were talking about moisturizers and lotions and I creams 148 00:08:26,760 --> 00:08:28,640 Speaker 2: and that kind of thing. But when you're talking about 149 00:08:28,680 --> 00:08:31,360 Speaker 2: beauty products, like what does this encompass? Are we talking 150 00:08:31,360 --> 00:08:34,240 Speaker 2: about everything including makeup and stuff? Can you talk a 151 00:08:34,280 --> 00:08:37,959 Speaker 2: little bit about the types of products that you've seen beauty. 152 00:08:37,600 --> 00:08:41,640 Speaker 7: Products at least in terms of the definition by FDA, 153 00:08:41,920 --> 00:08:46,280 Speaker 7: it's anything that's applied to the outside of the body 154 00:08:46,480 --> 00:08:50,679 Speaker 7: for beautification purposes. And so it's like you said, it 155 00:08:50,720 --> 00:08:55,959 Speaker 7: can be a very wide range of products. Really, cosmetics 156 00:08:56,040 --> 00:09:01,439 Speaker 7: can be anything from lotions to some you know, hair 157 00:09:01,720 --> 00:09:06,000 Speaker 7: products like shampoos. It can also include nail products. So 158 00:09:06,280 --> 00:09:08,560 Speaker 7: there's a very wide range when it comes to what's 159 00:09:08,640 --> 00:09:12,440 Speaker 7: considered a cosmetic. Even perfumes are considered cosmetics as well. 160 00:09:12,760 --> 00:09:14,600 Speaker 3: Coming up on the program, we'll get more on the 161 00:09:14,640 --> 00:09:19,240 Speaker 3: litigation over clean beauty products with attorney Heather Boustos. Remember 162 00:09:19,320 --> 00:09:21,439 Speaker 3: you can always get the latest legal news by listening 163 00:09:21,480 --> 00:09:25,360 Speaker 3: to our Bloomberg Law podcast on Apple, Spotify, or wherever 164 00:09:25,400 --> 00:09:26,520 Speaker 3: you get your podcasts. 165 00:09:26,840 --> 00:09:30,600 Speaker 5: I'm Greg Store and I'm Lydio Wheeler. This is Bloomberg. 166 00:09:37,760 --> 00:09:41,160 Speaker 1: You're listening to the Bloomberg Law Podcast. Cat's the program 167 00:09:41,200 --> 00:09:44,560 Speaker 1: weekdays at ten pm Eastern on Bloomberg Radio, the tune 168 00:09:44,600 --> 00:09:47,560 Speaker 1: in app, Bloomberg dot Com, and the Bloomberg Business App. 169 00:09:47,600 --> 00:09:50,439 Speaker 1: You can also listen live on Amazon Alexa from our 170 00:09:50,440 --> 00:09:54,840 Speaker 1: flagship New York station, Just say Alexa play Bloomberg eleven thirty. 171 00:09:57,000 --> 00:09:58,080 Speaker 3: I'm Greg Store and. 172 00:09:58,120 --> 00:10:01,560 Speaker 2: I'm Video Wheeler. We're in for June Grasso. We've been 173 00:10:01,559 --> 00:10:05,000 Speaker 2: speaking with Heather Boosto's, an FDA compliance attorney and partner 174 00:10:05,000 --> 00:10:09,840 Speaker 2: at Bousto's Law Group about litigation over clean beauty products. So, Heather, 175 00:10:10,080 --> 00:10:13,120 Speaker 2: what do you see happening with these lawsuits against Sephora 176 00:10:13,200 --> 00:10:13,720 Speaker 2: and Target. 177 00:10:14,080 --> 00:10:17,480 Speaker 7: It's really hard to say what the outcome will be. 178 00:10:18,800 --> 00:10:23,160 Speaker 7: There have been I believe there have been some lawsuits recently. 179 00:10:23,280 --> 00:10:27,200 Speaker 7: There was one against Loreel that was thrown out because 180 00:10:27,600 --> 00:10:31,679 Speaker 7: there I believe that in that case there was no 181 00:10:31,920 --> 00:10:36,079 Speaker 7: real harm shown to consumers, and that's always an issue 182 00:10:36,080 --> 00:10:38,600 Speaker 7: that comes up in some of these class action type 183 00:10:38,679 --> 00:10:42,440 Speaker 7: lawsuits that come forward. So it's hard to say what 184 00:10:42,520 --> 00:10:47,240 Speaker 7: will happen, but hopefully we'll get some idea as to 185 00:10:47,840 --> 00:10:51,400 Speaker 7: what the courts deem is at least a shell of 186 00:10:51,440 --> 00:10:54,200 Speaker 7: a definition. We're hoping that will be the case. And 187 00:10:54,240 --> 00:10:58,920 Speaker 7: in the meantime, there are agencies or organizations like the 188 00:10:58,960 --> 00:11:03,600 Speaker 7: Independent Beauty of trying to push agencies like the FDA 189 00:11:03,679 --> 00:11:07,400 Speaker 7: and FCC to give a definition in the meantime, so 190 00:11:07,679 --> 00:11:10,760 Speaker 7: we're trying to see who will win in that case 191 00:11:12,240 --> 00:11:14,439 Speaker 7: of providing a clear definition. 192 00:11:14,920 --> 00:11:17,760 Speaker 3: Are these sorts of legal fights new or has there 193 00:11:17,800 --> 00:11:21,960 Speaker 3: been similar litigation over other product claims? In the past. 194 00:11:22,480 --> 00:11:28,280 Speaker 7: These are definitely not new. There are many issues across 195 00:11:28,280 --> 00:11:32,440 Speaker 7: the board, So in cosmetics, this is something that I 196 00:11:32,520 --> 00:11:36,120 Speaker 7: believe is maybe newer on the cosmetics side, but especially 197 00:11:36,160 --> 00:11:41,480 Speaker 7: on the food side. There have been many lawsuits around 198 00:11:41,520 --> 00:11:45,840 Speaker 7: the terms natural for example, and that also comes in 199 00:11:45,880 --> 00:11:48,760 Speaker 7: on the beauty side, and in those two cases, in 200 00:11:48,880 --> 00:11:51,960 Speaker 7: different product categories, there's going to be different definitions. So 201 00:11:52,360 --> 00:11:55,000 Speaker 7: this is definitely not new, and I think the trend 202 00:11:55,520 --> 00:11:58,599 Speaker 7: is just going up and up, and with my own clients, 203 00:11:59,200 --> 00:12:02,000 Speaker 7: I'm having these conversations on a daily basis. Where it 204 00:12:02,080 --> 00:12:05,560 Speaker 7: used to be, you know, maybe not as much of 205 00:12:05,559 --> 00:12:09,240 Speaker 7: an issue, it's definitely coming to the forefront, and I'm 206 00:12:09,320 --> 00:12:12,359 Speaker 7: thinking about it as the products are being developed. 207 00:12:12,679 --> 00:12:15,320 Speaker 2: So, Heather, you mentioned your clients and this is something 208 00:12:15,360 --> 00:12:18,800 Speaker 2: that you're giving counsel on what exactly are you telling 209 00:12:18,800 --> 00:12:19,839 Speaker 2: them then, So. 210 00:12:20,120 --> 00:12:24,000 Speaker 7: What we're trying to do is balance the risk of 211 00:12:24,320 --> 00:12:28,280 Speaker 7: a lawsuit with their competitive edge in the market. And 212 00:12:28,400 --> 00:12:30,920 Speaker 7: every client's going to be a little different in terms 213 00:12:30,960 --> 00:12:35,200 Speaker 7: of how they see risk, and so I'm definitely bringing 214 00:12:35,280 --> 00:12:39,080 Speaker 7: up a lot of the claims that are at issue 215 00:12:39,240 --> 00:12:43,200 Speaker 7: in litigation currently and what I'm expecting to be in 216 00:12:43,240 --> 00:12:47,280 Speaker 7: litigation and allowing clients to make those decisions, but definitely 217 00:12:47,280 --> 00:12:52,000 Speaker 7: trying to steer them towards taking as little risk as possible. 218 00:12:52,080 --> 00:12:55,640 Speaker 7: The issue here that I see is companies are not 219 00:12:55,760 --> 00:12:58,560 Speaker 7: really immune. I don't think there's any company that's immune 220 00:12:59,040 --> 00:13:02,040 Speaker 7: because of the fact that we don't have clear definitions. 221 00:13:02,480 --> 00:13:07,800 Speaker 7: So ultimately, if clean, if that term is allowing companies 222 00:13:07,840 --> 00:13:13,120 Speaker 7: to market and be successful, then they really don't have 223 00:13:13,679 --> 00:13:16,160 Speaker 7: a huge amount of choice in whether they use it 224 00:13:16,280 --> 00:13:20,480 Speaker 7: or not. And so what something that that I've provided 225 00:13:21,280 --> 00:13:26,040 Speaker 7: guidance on is using asterisks and providing their own definitions 226 00:13:26,440 --> 00:13:29,280 Speaker 7: so that consumers are at least on notice of what 227 00:13:29,480 --> 00:13:31,319 Speaker 7: their definition of clean means. 228 00:13:31,640 --> 00:13:35,000 Speaker 3: So you co authored a legal insight for Bloomberg Lawn 229 00:13:35,280 --> 00:13:39,120 Speaker 3: and that article touched on equity issues involved in the 230 00:13:39,160 --> 00:13:41,800 Speaker 3: marketing of these products. Can you just tell us a 231 00:13:41,800 --> 00:13:42,600 Speaker 3: little bit about that. 232 00:13:43,440 --> 00:13:48,640 Speaker 7: So, in terms of equity, there are issues with natural 233 00:13:48,800 --> 00:13:54,520 Speaker 7: ingredients used in beauty products not being attributed to people 234 00:13:54,520 --> 00:13:59,800 Speaker 7: of color and their essentially where those ingredients came from, 235 00:14:00,320 --> 00:14:05,000 Speaker 7: and so in terms of marketing, it's almost erasing some 236 00:14:05,120 --> 00:14:07,600 Speaker 7: of the origins of these ingredients. 237 00:14:07,880 --> 00:14:12,160 Speaker 2: You mentioned before about counseling your clients about, you know, 238 00:14:12,200 --> 00:14:15,360 Speaker 2: how to avoid this litigation. You mentioned that some of 239 00:14:15,400 --> 00:14:19,400 Speaker 2: them are defining what clean is on their own. How 240 00:14:19,480 --> 00:14:24,120 Speaker 2: else can they protect themselves? Is are some clients just saying, Okay, 241 00:14:24,160 --> 00:14:26,920 Speaker 2: I'm not going to market this as clean and if so, 242 00:14:27,120 --> 00:14:30,160 Speaker 2: is that them not being competitive? I mean, what are 243 00:14:30,160 --> 00:14:32,560 Speaker 2: they doing here, you know, to try to avoid that risk? 244 00:14:32,920 --> 00:14:36,200 Speaker 7: Yeah, I think with different clients it's turned out differently. 245 00:14:36,520 --> 00:14:38,680 Speaker 7: Some of them are willing to take on the risk 246 00:14:39,480 --> 00:14:45,560 Speaker 7: of using the term and just providing the definition. Others 247 00:14:46,560 --> 00:14:49,680 Speaker 7: have just completely removed it from their marketing and kind 248 00:14:49,680 --> 00:14:53,600 Speaker 7: of focused on educating on the ingredients they do use 249 00:14:54,680 --> 00:14:57,800 Speaker 7: and the ingredients that they're keeping out. So instead of 250 00:14:57,920 --> 00:15:01,680 Speaker 7: using an overarching term of clean, they're just providing the 251 00:15:01,760 --> 00:15:06,320 Speaker 7: definition by showcasing the ingredients they're using or keeping out 252 00:15:06,360 --> 00:15:06,920 Speaker 7: of the product. 253 00:15:07,360 --> 00:15:09,120 Speaker 3: Ask you a look into the future a little bit. 254 00:15:09,280 --> 00:15:14,760 Speaker 3: What impact would you imagine this litigation might have on 255 00:15:14,880 --> 00:15:15,600 Speaker 3: the industry. 256 00:15:16,080 --> 00:15:20,280 Speaker 7: Well, it's definitely going to cause a lot of companies 257 00:15:20,360 --> 00:15:23,200 Speaker 7: to be more aware of the claims that they're placing 258 00:15:23,240 --> 00:15:27,200 Speaker 7: on their products. It's going to cause them to be 259 00:15:27,320 --> 00:15:30,160 Speaker 7: probably more conservative than they would have been in the past. 260 00:15:30,600 --> 00:15:34,280 Speaker 7: And this is something we're seeing even you know, within 261 00:15:34,360 --> 00:15:38,760 Speaker 7: the FTC regulations and what they're coming out with. They've 262 00:15:38,800 --> 00:15:42,760 Speaker 7: issued a few new guidances in the past i'd say 263 00:15:43,160 --> 00:15:46,200 Speaker 7: six months or so up to a year, and these 264 00:15:46,240 --> 00:15:50,360 Speaker 7: guidances are causing, you know, people to be more aware 265 00:15:50,520 --> 00:15:54,000 Speaker 7: of our companies rather to be more aware of the 266 00:15:54,080 --> 00:15:56,760 Speaker 7: types of claims they're using. And so I think it's 267 00:15:56,800 --> 00:16:01,119 Speaker 7: all leading up to the same result, which is companies 268 00:16:01,160 --> 00:16:04,240 Speaker 7: being more cautious with the types of claims that they're 269 00:16:04,320 --> 00:16:05,520 Speaker 7: using on their products. 270 00:16:05,640 --> 00:16:07,560 Speaker 2: Can you talk a little bit more about that new 271 00:16:07,560 --> 00:16:10,240 Speaker 2: guidance from the FTC, What exactly are they saying. 272 00:16:10,600 --> 00:16:13,680 Speaker 7: So, there is one of the new guidances that was 273 00:16:13,720 --> 00:16:18,240 Speaker 7: released as a health Products compliance guidance, which has now 274 00:16:19,000 --> 00:16:22,680 Speaker 7: it really focuses more on the substantiation side, but it's 275 00:16:22,720 --> 00:16:26,600 Speaker 7: provided a lot of guidance to companies as to what 276 00:16:27,120 --> 00:16:32,000 Speaker 7: kinds of claims require what levels of substantiation and so, 277 00:16:32,960 --> 00:16:37,600 Speaker 7: like I said, it's ultimately the more guidance industry has, 278 00:16:38,080 --> 00:16:41,760 Speaker 7: the more able they are to be within the bounds 279 00:16:41,800 --> 00:16:45,440 Speaker 7: of what's expected. And so when these guidances come out, 280 00:16:45,520 --> 00:16:48,080 Speaker 7: Number one, they're very easy. They're much easier to read 281 00:16:48,160 --> 00:16:51,800 Speaker 7: than to read through legal you know, through opinions from 282 00:16:51,920 --> 00:16:55,440 Speaker 7: court cases, and so it allows companies to be more 283 00:16:55,600 --> 00:16:57,840 Speaker 7: educated on what they can or can't do. 284 00:16:58,400 --> 00:17:01,360 Speaker 2: Heather, I mean, we're talking about clear beauty products, but 285 00:17:01,800 --> 00:17:04,240 Speaker 2: is there anything else that's popped up in the marketplace 286 00:17:04,800 --> 00:17:07,400 Speaker 2: that's similar to this, Like when we're thinking thinking about 287 00:17:07,400 --> 00:17:10,200 Speaker 2: beauty products that you think could be the next thing 288 00:17:10,359 --> 00:17:14,800 Speaker 2: that causes there to be litigation some other marketing tool 289 00:17:14,960 --> 00:17:15,359 Speaker 2: or scheme. 290 00:17:15,880 --> 00:17:20,399 Speaker 7: Currently, the terms that we're looking at obviously clean, the 291 00:17:20,520 --> 00:17:25,720 Speaker 7: term natural has been a source of confusion and there's 292 00:17:25,760 --> 00:17:28,359 Speaker 7: been a lack of clarity on that as well. And 293 00:17:29,000 --> 00:17:32,280 Speaker 7: the term green, which I think goes across product categories. 294 00:17:32,320 --> 00:17:36,119 Speaker 7: It's not just in the cosmetic space, it goes into 295 00:17:36,480 --> 00:17:40,240 Speaker 7: like I said, into the food space, and even into 296 00:17:40,520 --> 00:17:44,720 Speaker 7: consumer products like cleaning products where they're using natural and green. 297 00:17:45,200 --> 00:17:48,000 Speaker 7: So I definitely think in the future these are going 298 00:17:48,040 --> 00:17:50,680 Speaker 7: to continue to be a source of contention. 299 00:17:51,080 --> 00:17:54,120 Speaker 3: Our thanks to Heather boost Os, an FDA compliance attorney 300 00:17:54,160 --> 00:17:57,640 Speaker 3: and managing partner at Bluestos Law Group. Coming up next 301 00:17:57,640 --> 00:17:59,879 Speaker 3: on The Bloomberg Law Show, we'll dive into the cost 302 00:17:59,880 --> 00:18:02,920 Speaker 3: of tutional fight over whether former President Donald Trump can 303 00:18:02,960 --> 00:18:03,840 Speaker 3: hold office again. 304 00:18:04,320 --> 00:18:08,320 Speaker 5: I'm Greg Storr and I'm Lydia Wheeler. This is Bloomberg. 305 00:18:15,800 --> 00:18:19,440 Speaker 1: You're listening to the Bloomberg Law Podcast. Catch us weekdays 306 00:18:19,440 --> 00:18:23,000 Speaker 1: at ten pm Easter on Bloomberg dot Com, the iHeartRadio 307 00:18:23,040 --> 00:18:25,800 Speaker 1: app and the Bloomberg Business App, or listen on demand 308 00:18:25,840 --> 00:18:27,400 Speaker 1: wherever you get your podcasts. 309 00:18:29,800 --> 00:18:32,440 Speaker 3: I'm Lydia Wheeler and I'm Greg store We're in for 310 00:18:32,600 --> 00:18:36,359 Speaker 3: June Grosso. The Colorado Supreme Court last week considered whether 311 00:18:36,400 --> 00:18:39,840 Speaker 3: Donald Trump is prohibited under the Constitution's insurrection clause from 312 00:18:39,880 --> 00:18:43,440 Speaker 3: becoming president again after the January sixth attack on the Capitol. 313 00:18:43,880 --> 00:18:49,040 Speaker 3: Here's Colorado Supreme Court Justice William W. Hood as the insurrection. 314 00:18:49,560 --> 00:18:53,199 Speaker 3: Why isn't it enough that a violent bob breached the 315 00:18:53,320 --> 00:18:57,520 Speaker 3: capital when Congress was performing a core constitutional function? In 316 00:18:57,560 --> 00:19:01,280 Speaker 3: some ways, that seems like a poster child friends. It's 317 00:19:01,320 --> 00:19:03,800 Speaker 3: one of several cases that seek to keep Trump off 318 00:19:03,840 --> 00:19:07,000 Speaker 3: the twenty twenty four presidential ballot and ultimately could land 319 00:19:07,040 --> 00:19:09,800 Speaker 3: at the Supreme Court. Joining us to discuss it all 320 00:19:09,880 --> 00:19:13,080 Speaker 3: is Bloomberg News reporters Zewe. Tillman, who covers the intersection 321 00:19:13,600 --> 00:19:16,960 Speaker 3: of law and politics, and especially law and Donald Trump 322 00:19:17,040 --> 00:19:21,400 Speaker 3: these days. Zoe, thanks for joining us. Let's start with 323 00:19:22,040 --> 00:19:25,879 Speaker 3: the constitutional basics. What is the insurrection clause? 324 00:19:26,160 --> 00:19:30,399 Speaker 4: Going back to the post Civil War period, you know, 325 00:19:30,480 --> 00:19:34,520 Speaker 4: the Reconstruction era, US government was looking for ways to 326 00:19:34,560 --> 00:19:38,359 Speaker 4: make sure that high level officials or really a number 327 00:19:38,359 --> 00:19:41,560 Speaker 4: of people who had supported secession and you know, the 328 00:19:41,560 --> 00:19:46,680 Speaker 4: Confederacy were barred from participating in government, at least for 329 00:19:46,760 --> 00:19:49,800 Speaker 4: the time being. So in eighteen sixty eight they ratify 330 00:19:50,240 --> 00:19:53,000 Speaker 4: Section three, which is the language that we're all dealing 331 00:19:53,000 --> 00:19:56,600 Speaker 4: with now, a fourteenth Amendment which basically says, you know, 332 00:19:56,640 --> 00:19:59,879 Speaker 4: if you took an oath under the Constitution to support 333 00:20:00,119 --> 00:20:04,480 Speaker 4: constitution and held in office, what office exactly is a 334 00:20:04,520 --> 00:20:07,120 Speaker 4: matter of contention, but if you did that and then 335 00:20:07,200 --> 00:20:11,960 Speaker 4: you engaged in insurrection or rebellion against the Constitution, you 336 00:20:12,040 --> 00:20:15,439 Speaker 4: were barred from holding other office under the United States 337 00:20:15,480 --> 00:20:19,920 Speaker 4: going forward. You know, it's language that was very relevant 338 00:20:19,960 --> 00:20:23,680 Speaker 4: at the time it was ratified and used and invoked, 339 00:20:24,240 --> 00:20:27,280 Speaker 4: but then was mostly dormant for a lot of American 340 00:20:27,359 --> 00:20:30,080 Speaker 4: history after that point. It really didn't come up. There 341 00:20:30,119 --> 00:20:34,320 Speaker 4: weren't many rebellions or insurrections that we had to contend with, 342 00:20:35,680 --> 00:20:38,639 Speaker 4: and then it suddenly roared back to life after the 343 00:20:38,680 --> 00:20:41,520 Speaker 4: attack on the Capitol on January sixth, where you know, 344 00:20:41,560 --> 00:20:45,640 Speaker 4: a lot of scholars said, hey, this language is still there, 345 00:20:45,680 --> 00:20:48,800 Speaker 4: and just because it hasn't been used doesn't mean it's 346 00:20:48,840 --> 00:20:52,200 Speaker 4: not still operative. It doesn't say, you know, only applies 347 00:20:52,280 --> 00:20:56,760 Speaker 4: to the Civil War of the nineteenth century. It just 348 00:20:56,760 --> 00:20:59,840 Speaker 4: says insurrection. And it really revived a debate about whether 349 00:21:00,080 --> 00:21:04,000 Speaker 4: it could apply to folks who participated in January sixth, 350 00:21:04,160 --> 00:21:06,560 Speaker 4: and then sort of more relevant to our discussion today, 351 00:21:07,160 --> 00:21:09,480 Speaker 4: whether it could apply to people like Donald Trump who 352 00:21:09,480 --> 00:21:12,879 Speaker 4: didn't physically storm the Capitol. But we're sort of at 353 00:21:12,720 --> 00:21:16,280 Speaker 4: the heart of what happened on January sixth. 354 00:21:16,920 --> 00:21:19,200 Speaker 2: So can you give us an overview of the biggest 355 00:21:19,200 --> 00:21:22,960 Speaker 2: cases out there involving Trump and the insurrection clause? Who 356 00:21:23,040 --> 00:21:27,520 Speaker 2: exactly is pressing this issue? And where are these cases? 357 00:21:27,840 --> 00:21:29,600 Speaker 4: So there are a lot of them. There are more 358 00:21:29,640 --> 00:21:32,800 Speaker 4: than three dozen that we've found so far that have 359 00:21:32,880 --> 00:21:36,639 Speaker 4: been filed in courts across the country. The vast majority 360 00:21:36,760 --> 00:21:40,320 Speaker 4: have been dismissed really early on, and you know, are 361 00:21:40,359 --> 00:21:42,639 Speaker 4: not considered sort of the major challenges. A lot of 362 00:21:42,680 --> 00:21:47,160 Speaker 4: them have been brought by a sort of minor GOP 363 00:21:47,560 --> 00:21:52,840 Speaker 4: presidential candidate who's been you know, filing student federal court 364 00:21:53,000 --> 00:21:56,080 Speaker 4: and claiming, you know, because he's registered to run in 365 00:21:56,080 --> 00:21:58,720 Speaker 4: the primary against Donald Trump, he has sort of a 366 00:21:58,760 --> 00:22:04,080 Speaker 4: competitor standing to sue over Trump's eligibility. But courts have 367 00:22:04,200 --> 00:22:07,800 Speaker 4: largely been saying that's not doesn't give us jurisdiction here, 368 00:22:08,359 --> 00:22:12,280 Speaker 4: and those have been tossed out. Now there are four 369 00:22:12,359 --> 00:22:16,080 Speaker 4: cases at this point that everyone is watching for a 370 00:22:16,160 --> 00:22:19,680 Speaker 4: number of reasons. They're all in state court, which is 371 00:22:19,720 --> 00:22:23,760 Speaker 4: important because you know, what we're really dealing with this 372 00:22:23,880 --> 00:22:26,680 Speaker 4: state election law and what each state has to say 373 00:22:26,720 --> 00:22:31,240 Speaker 4: about how election officials decide who gets on the ballot, 374 00:22:31,320 --> 00:22:34,320 Speaker 4: the timeline for that, the process. So the four cases 375 00:22:34,640 --> 00:22:39,760 Speaker 4: have been in Colorado, Michigan, Minnesota, and most recently Oregon. 376 00:22:40,520 --> 00:22:43,520 Speaker 4: The case in Colorado, which has really gotten the most 377 00:22:43,560 --> 00:22:47,520 Speaker 4: attention and has moved along as farther in the process, 378 00:22:47,640 --> 00:22:50,879 Speaker 4: was brought by a group called Citizens for Responsibility and 379 00:22:50,880 --> 00:22:54,440 Speaker 4: Ethics in Washington or crew and that's important because they 380 00:22:54,480 --> 00:22:55,320 Speaker 4: actually won. 381 00:22:55,680 --> 00:22:56,120 Speaker 7: So far. 382 00:22:56,520 --> 00:23:00,240 Speaker 4: The only case to prevail in getting someone removed from 383 00:23:00,240 --> 00:23:04,240 Speaker 4: office under Section three, and that was a county commissioner 384 00:23:04,280 --> 00:23:07,000 Speaker 4: in New Mexico who was convicted of a crime for 385 00:23:07,119 --> 00:23:11,440 Speaker 4: being part of the capital attack, and they successfully went 386 00:23:11,480 --> 00:23:13,920 Speaker 4: to court to get him removed from office. So they're 387 00:23:13,960 --> 00:23:16,520 Speaker 4: now bringing this case in Colorado that was just argued 388 00:23:16,560 --> 00:23:19,600 Speaker 4: in the state Supreme Court. And then another group called 389 00:23:19,640 --> 00:23:23,080 Speaker 4: Free Speech for People, they've brought the other three cases, 390 00:23:23,200 --> 00:23:26,040 Speaker 4: or they're one of several groups and law firms involved 391 00:23:26,040 --> 00:23:29,520 Speaker 4: in Michigan, Oregon, and Minnesota. 392 00:23:29,600 --> 00:23:32,400 Speaker 3: One thing I didn't hear you mention in there is 393 00:23:32,800 --> 00:23:35,520 Speaker 3: the idea of a state trying to keep Donald Trump 394 00:23:35,560 --> 00:23:37,720 Speaker 3: off the ballot. One might have thought that, say a 395 00:23:37,840 --> 00:23:41,280 Speaker 3: state secretary of state who's in charge of the elections 396 00:23:41,440 --> 00:23:45,000 Speaker 3: might have said, no, I'm not going to put him. 397 00:23:45,080 --> 00:23:46,960 Speaker 3: I'm going to try to keep him off the ballot 398 00:23:47,800 --> 00:23:51,320 Speaker 3: because he engaged in insurrection. Has that not happened. 399 00:23:51,480 --> 00:23:55,200 Speaker 4: It has not. And even secretaries of state who are 400 00:23:55,680 --> 00:24:00,679 Speaker 4: Democrats who are opposed to Trump have been really to 401 00:24:00,760 --> 00:24:03,359 Speaker 4: be the ones to take the leap first. And we've 402 00:24:03,400 --> 00:24:07,920 Speaker 4: seen a number of these officials say this is extremely untested, 403 00:24:08,119 --> 00:24:11,320 Speaker 4: uncharted waters for all of us, and I would much 404 00:24:11,400 --> 00:24:14,480 Speaker 4: rather have a court be the ones that sort of 405 00:24:14,480 --> 00:24:18,159 Speaker 4: punted it over to the judiciary and said you know, 406 00:24:18,200 --> 00:24:21,440 Speaker 4: we'd much rather have a judge or our state Supreme 407 00:24:21,480 --> 00:24:25,159 Speaker 4: court or the US Supreme Court make an official determination 408 00:24:25,280 --> 00:24:28,920 Speaker 4: on these legal questions before I a humble state servant, 409 00:24:29,840 --> 00:24:32,440 Speaker 4: go so far as to tell, you know, a candidate, 410 00:24:32,600 --> 00:24:35,479 Speaker 4: major candidate, probably you know, the front runner for the 411 00:24:35,480 --> 00:24:39,280 Speaker 4: GOP nomination, that he can't appear on the ballot. So 412 00:24:39,440 --> 00:24:42,760 Speaker 4: they've you know, they're in court as defendants in these 413 00:24:42,800 --> 00:24:46,359 Speaker 4: cases because they are the actors that a court would 414 00:24:46,440 --> 00:24:50,320 Speaker 4: order to do something, whether it's to keep someone off 415 00:24:50,320 --> 00:24:54,560 Speaker 4: a ballot or take additional steps to deal with these challenges. 416 00:24:55,119 --> 00:24:59,120 Speaker 4: But they are not sort of actively litigating for one 417 00:24:59,160 --> 00:25:03,560 Speaker 4: side or the other. They're basically saying, whatever judge you decide, 418 00:25:03,600 --> 00:25:08,399 Speaker 4: we will follow your ruling. You know, some have supported 419 00:25:08,440 --> 00:25:12,359 Speaker 4: the challengers insofar as you know, arguing that January sixth 420 00:25:12,480 --> 00:25:15,959 Speaker 4: was an insurrection and kind of getting behind that theory, 421 00:25:16,160 --> 00:25:18,960 Speaker 4: but not wanting to be the ones to say, you know, 422 00:25:19,119 --> 00:25:22,560 Speaker 4: yes or no, he is eligible or not to appear 423 00:25:22,600 --> 00:25:23,080 Speaker 4: on ballance. 424 00:25:23,920 --> 00:25:26,919 Speaker 2: So what exactly is this argument? What's the basic argument 425 00:25:26,960 --> 00:25:29,200 Speaker 2: that those seeking to keep Trump off the ballot are making. 426 00:25:29,440 --> 00:25:33,200 Speaker 4: You know, first and foremost that January sixth was an insurrection, 427 00:25:33,320 --> 00:25:36,800 Speaker 4: and that's not necessarily a given the term. The word 428 00:25:36,840 --> 00:25:42,400 Speaker 4: insurrection isn't clearly defined in the Constitution, so it's sort 429 00:25:42,400 --> 00:25:46,159 Speaker 4: of potentially open for debate what an insurrection is. And 430 00:25:46,200 --> 00:25:49,640 Speaker 4: that was something that the Colorado Supreme Court went back 431 00:25:49,640 --> 00:25:51,439 Speaker 4: and forth with the lawyers about. You know, at one 432 00:25:51,480 --> 00:25:55,720 Speaker 4: point it was Donald Trump's lawyer was saying, well, you know, 433 00:25:55,800 --> 00:26:00,879 Speaker 4: there weren't enough firearms that it could be an insurrection 434 00:26:01,359 --> 00:26:04,600 Speaker 4: because they couldn't have they didn't have the weaponry to 435 00:26:04,720 --> 00:26:07,720 Speaker 4: actually overthrow Congress. And then the justices it was sort 436 00:26:07,760 --> 00:26:09,960 Speaker 4: of this extraordinary back and forth where they were saying, well, 437 00:26:10,000 --> 00:26:12,680 Speaker 4: they had makeshift weapons that they could use, and there 438 00:26:12,680 --> 00:26:14,960 Speaker 4: were certainly a lot of violence. So what is the 439 00:26:15,640 --> 00:26:19,200 Speaker 4: where's the line for how much you know, violence there 440 00:26:19,200 --> 00:26:21,159 Speaker 4: has to be or how much weaponry there has to 441 00:26:21,160 --> 00:26:24,679 Speaker 4: be for something to be an insurrection. But the challenges 442 00:26:24,720 --> 00:26:29,360 Speaker 4: are saying, yes, what they wanted was to overthrow lawfully 443 00:26:29,400 --> 00:26:34,760 Speaker 4: elected government and governance at the time, and that is 444 00:26:34,760 --> 00:26:38,040 Speaker 4: an insurrection. So that's one of the main arguments. And 445 00:26:38,080 --> 00:26:41,639 Speaker 4: then the next question is did Donald Trump engage in 446 00:26:41,680 --> 00:26:44,520 Speaker 4: that insurrection? And the challengers are saying yes, that he 447 00:26:44,760 --> 00:26:49,880 Speaker 4: was the driving force in you know, directing his supporters 448 00:26:49,920 --> 00:26:53,840 Speaker 4: that day to go to the capital, and before that, 449 00:26:54,040 --> 00:26:58,119 Speaker 4: you know, really inciting them, motivating them by saying the 450 00:26:58,160 --> 00:27:02,560 Speaker 4: election was stolen and it's up to you to you know, 451 00:27:02,640 --> 00:27:05,679 Speaker 4: go to your state lawmakers and go to Congress to 452 00:27:05,760 --> 00:27:09,280 Speaker 4: stop the stolen election. And then the sort of big 453 00:27:09,320 --> 00:27:15,440 Speaker 4: picture are overarching constitutional question and issue that the challengers 454 00:27:14,920 --> 00:27:19,960 Speaker 4: are are arguing is that Section three, you know, does 455 00:27:20,000 --> 00:27:24,520 Speaker 4: apply to a president or a former president who is 456 00:27:24,560 --> 00:27:28,040 Speaker 4: seeking the presidency again. And that has been you know, 457 00:27:28,200 --> 00:27:33,240 Speaker 4: actually a major one of the primary issues in contention 458 00:27:33,359 --> 00:27:38,480 Speaker 4: here because Section three is and everyone agrees silent on 459 00:27:38,520 --> 00:27:43,320 Speaker 4: this issue. It lists other offices. It mentioned senators, representative, 460 00:27:43,440 --> 00:27:47,560 Speaker 4: federal electors, but it doesn't say president or vice president. 461 00:27:47,720 --> 00:27:50,360 Speaker 4: And what they're saying is there's a catch all reference 462 00:27:50,480 --> 00:27:56,439 Speaker 4: to officers federal officers office under the United States. And 463 00:27:56,520 --> 00:28:00,720 Speaker 4: the question is was that meant to capture everything that's 464 00:28:00,760 --> 00:28:03,399 Speaker 4: not listed, including and up to the presidency. 465 00:28:04,160 --> 00:28:07,560 Speaker 3: Zoe, How have these cases been faring so far as 466 00:28:07,600 --> 00:28:08,000 Speaker 3: of now? 467 00:28:08,160 --> 00:28:11,680 Speaker 4: Donald Trump has been winning in the sense that no 468 00:28:11,680 --> 00:28:15,240 Speaker 4: one has succeeded in stopping him from appearing on a ballot, 469 00:28:15,359 --> 00:28:18,760 Speaker 4: especially heading into the primary season, when you know, states 470 00:28:18,800 --> 00:28:21,520 Speaker 4: are literally getting ready in the next few weeks to 471 00:28:21,560 --> 00:28:25,119 Speaker 4: print their ballots and get ready for primary contests. You know, 472 00:28:25,240 --> 00:28:31,440 Speaker 4: he is appealing. However, in Colorado, the judge's determination that 473 00:28:31,800 --> 00:28:34,320 Speaker 4: it was an insurrection on January sixth and that he 474 00:28:34,440 --> 00:28:37,440 Speaker 4: engaged in it. Where he won that case was the 475 00:28:37,520 --> 00:28:41,360 Speaker 4: judge said, however, I don't find that Section three applies 476 00:28:41,520 --> 00:28:45,800 Speaker 4: to a former president seeking office again, so it was 477 00:28:45,880 --> 00:28:48,600 Speaker 4: you know, a win in that he stays on the ballot, 478 00:28:49,200 --> 00:28:53,680 Speaker 4: but they would prefer they're not to be official court 479 00:28:53,760 --> 00:28:57,040 Speaker 4: ruling out there that he engaged in insurrection, So they 480 00:28:57,040 --> 00:28:59,160 Speaker 4: are fighting that, but for the most part, he's won 481 00:28:59,560 --> 00:29:03,120 Speaker 4: and diferent reasons. You know. In Michigan, the judge there 482 00:29:03,240 --> 00:29:06,480 Speaker 4: said that this was a political question that the courts 483 00:29:06,520 --> 00:29:10,280 Speaker 4: simply shouldn't decide, and there's some disagreement among judges on 484 00:29:10,320 --> 00:29:14,520 Speaker 4: that question, so that issue is up on appeal. In Minnesota, 485 00:29:14,640 --> 00:29:20,000 Speaker 4: the state Supreme Court said basically that the primary contest 486 00:29:20,800 --> 00:29:24,520 Speaker 4: wasn't really an area where a state election official had 487 00:29:24,640 --> 00:29:26,920 Speaker 4: power to keep someone off the ballot, so it was 488 00:29:27,000 --> 00:29:30,640 Speaker 4: sort of loot and not really right at this point, 489 00:29:30,680 --> 00:29:32,640 Speaker 4: and the question of the general election, it was just 490 00:29:32,680 --> 00:29:35,960 Speaker 4: too early to decide any of the issues. So they 491 00:29:36,000 --> 00:29:39,440 Speaker 4: sort of said the primary, we don't really have jurisdiction 492 00:29:39,600 --> 00:29:43,680 Speaker 4: to deal with this. It's just for states to help 493 00:29:43,760 --> 00:29:46,120 Speaker 4: the parties decide who their nominees are going to be, 494 00:29:46,760 --> 00:29:49,640 Speaker 4: and maybe we bring this back for the general election. 495 00:29:50,000 --> 00:29:52,440 Speaker 2: So does this ever become a case for the United 496 00:29:52,520 --> 00:29:54,880 Speaker 2: States Supreme Court? And if so, when does that happen? 497 00:29:55,400 --> 00:29:57,480 Speaker 4: You know, I think that all of the state judges 498 00:29:57,560 --> 00:30:00,480 Speaker 4: are hoping it does. In that no one's to want 499 00:30:00,520 --> 00:30:04,840 Speaker 4: to be the final word on this issue. The number 500 00:30:04,880 --> 00:30:07,240 Speaker 4: of the state judges have expressed concern, you know that 501 00:30:07,280 --> 00:30:10,719 Speaker 4: if one state does something that conflicts with what another 502 00:30:10,800 --> 00:30:14,880 Speaker 4: state does, that this causes, you know, a mass national 503 00:30:14,960 --> 00:30:18,680 Speaker 4: constitutional crisis. And there's been several exchanges where lawyers and 504 00:30:18,760 --> 00:30:22,560 Speaker 4: judges have said and hopefully, you know, if it becomes 505 00:30:22,600 --> 00:30:25,240 Speaker 4: really a problem, the US Supreme Court will just step 506 00:30:25,280 --> 00:30:28,760 Speaker 4: in and resolve all of this. You know, whatever the 507 00:30:28,800 --> 00:30:33,400 Speaker 4: state supreme courts do can be then taken to the justices, 508 00:30:33,440 --> 00:30:38,520 Speaker 4: and they don't obviously have to take it. But deciding 509 00:30:38,640 --> 00:30:40,760 Speaker 4: not to take a case is of course action in 510 00:30:40,800 --> 00:30:44,000 Speaker 4: and of itself. And if Donald Trump continues to win 511 00:30:44,040 --> 00:30:47,760 Speaker 4: in these cases, and the challengers petition the justices to intervene, 512 00:30:47,800 --> 00:30:50,680 Speaker 4: and they say, no, it really does end the fight. 513 00:30:50,760 --> 00:30:53,160 Speaker 4: There isn't much more they can do at that point. 514 00:30:53,360 --> 00:30:57,040 Speaker 4: So we're really waiting for these state supreme courts to 515 00:30:57,160 --> 00:31:01,320 Speaker 4: take enough action and then see if the challengers decide 516 00:31:01,360 --> 00:31:04,320 Speaker 4: that they want to take that next step of bringing 517 00:31:04,360 --> 00:31:05,240 Speaker 4: it to the justices. 518 00:31:06,280 --> 00:31:08,840 Speaker 3: So is there an argument that the Supreme Court should 519 00:31:08,880 --> 00:31:11,840 Speaker 3: decide this at the first available opportunity because it's it 520 00:31:11,960 --> 00:31:14,920 Speaker 3: isn't the case that certainty is better for everybody to 521 00:31:14,920 --> 00:31:16,160 Speaker 3: get it sooner rather than later. 522 00:31:16,360 --> 00:31:19,240 Speaker 4: Yeah, you know, one of the Colorado Supreme Court justices 523 00:31:19,280 --> 00:31:21,760 Speaker 4: made that point and asked, you know, what is the 524 00:31:21,800 --> 00:31:25,680 Speaker 4: point in waiting and potentially opening the door to far 525 00:31:25,760 --> 00:31:31,280 Speaker 4: more chaos if the electoral process gets farther along. You know, 526 00:31:31,360 --> 00:31:34,880 Speaker 4: why not just resolve all of these issues now? And 527 00:31:35,320 --> 00:31:39,200 Speaker 4: you know, there are overarching legal questions that Trump and 528 00:31:39,240 --> 00:31:41,760 Speaker 4: his campaign are saying. You know, these cases don't even 529 00:31:41,800 --> 00:31:44,560 Speaker 4: belong in court, So no one should get to the 530 00:31:44,640 --> 00:31:47,760 Speaker 4: question of its applicability to Donald Trump, and no one 531 00:31:47,800 --> 00:31:51,240 Speaker 4: should be deciding anything about January sixth, because they don't 532 00:31:51,240 --> 00:31:51,960 Speaker 4: belong in court. 533 00:31:52,040 --> 00:31:52,560 Speaker 2: At all. 534 00:31:52,960 --> 00:31:56,160 Speaker 4: So they're arguing that this needs to just end now. 535 00:31:57,640 --> 00:32:00,480 Speaker 4: But other folks are making the case that it's it's 536 00:32:00,520 --> 00:32:03,120 Speaker 4: out there and perhaps it would be better to get 537 00:32:03,160 --> 00:32:06,240 Speaker 4: some clarity before Americans head to the polls. 538 00:32:06,800 --> 00:32:10,160 Speaker 3: Undoubtedly a topic we will be talking about again and 539 00:32:10,320 --> 00:32:14,360 Speaker 3: perhaps frequently. That was Bloomberg News reporters Zoe Tillman. Zoe, 540 00:32:14,480 --> 00:32:16,800 Speaker 3: thanks so much for joining us. That's going to do 541 00:32:16,840 --> 00:32:19,520 Speaker 3: it for this edition of the Bloomberg Law Show. I'm 542 00:32:19,520 --> 00:32:20,640 Speaker 3: Greg Storr. 543 00:32:20,680 --> 00:32:22,760 Speaker 5: And I'm Lydia Wheeler. Stay with us. 544 00:32:22,920 --> 00:32:27,240 Speaker 2: Top stories and global business headlines are coming up right now.