1
00:00:02,759 --> 00:00:07,000
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

2
00:00:09,039 --> 00:00:13,720
Speaker 2: Yesterday, on so called Liberation Day, President Trump announced the

3
00:00:13,760 --> 00:00:17,640
Speaker 2: steepest American tariffs in more than a century.

4
00:00:17,840 --> 00:00:20,440
Speaker 3: So sixty seven percent. So we're going to be charging

5
00:00:20,840 --> 00:00:24,160
Speaker 3: a discounted reciprocal tariff of thirty four percent. I think,

6
00:00:24,520 --> 00:00:29,400
Speaker 3: my fellow Americans, this is Liberation Day. In other words,

7
00:00:29,440 --> 00:00:31,880
Speaker 3: they charge us, we charge them, we charge them less.

8
00:00:31,880 --> 00:00:33,320
Speaker 3: So how could anybody be upset?

9
00:00:33,479 --> 00:00:38,239
Speaker 2: But obviously plenty of people are upset, leaving financial markets

10
00:00:38,280 --> 00:00:42,320
Speaker 2: around the world reeling. Today. About two trillion dollars was

11
00:00:42,320 --> 00:00:45,320
Speaker 2: erased from the S and P five hundred for its

12
00:00:45,360 --> 00:00:48,600
Speaker 2: worst day in five years, as the tariffs threatened to

13
00:00:48,640 --> 00:00:53,800
Speaker 2: slow growth, rekindle inflation, and wreak havoc on the global economy.

14
00:00:54,360 --> 00:00:57,640
Speaker 2: Joining me is an expert in tariffs and national security law,

15
00:00:57,920 --> 00:01:01,840
Speaker 2: David Townsend, a partner at Dorset and Whitney. Under what

16
00:01:02,160 --> 00:01:06,679
Speaker 2: authority is President Trump imposing these tariffs?

17
00:01:07,319 --> 00:01:10,840
Speaker 1: And so these tariffs are imposed under the International Emergency

18
00:01:10,840 --> 00:01:16,080
Speaker 1: Economic Powers Act or AEPA. AEPA allows the President to

19
00:01:16,120 --> 00:01:20,800
Speaker 1: declare a national emergency with respect to a variety of

20
00:01:20,800 --> 00:01:24,840
Speaker 1: things that the President believes undermine US national security and

21
00:01:24,920 --> 00:01:28,280
Speaker 1: has its basis and origin outside of the United States.

22
00:01:28,560 --> 00:01:32,560
Speaker 1: Once the President declares that national emergency, it provides a

23
00:01:32,640 --> 00:01:35,680
Speaker 1: legal basis for the President to take a number of

24
00:01:35,920 --> 00:01:40,000
Speaker 1: restrictive actions with respect to commerce between the United States

25
00:01:40,040 --> 00:01:43,680
Speaker 1: and the target of the AIPA executive order.

26
00:01:44,080 --> 00:01:48,400
Speaker 2: He says it's an emergency, and he's citing the trade deficits.

27
00:01:48,720 --> 00:01:51,440
Speaker 2: A lot of people wouldn't consider that an emergency. Does

28
00:01:51,480 --> 00:01:52,960
Speaker 2: he get to decide completely?

29
00:01:53,760 --> 00:01:58,560
Speaker 1: Well? Under AEPA, the President is provided by Congress broad

30
00:01:58,600 --> 00:02:02,360
Speaker 1: authority to define what is or is not a national

31
00:02:02,400 --> 00:02:08,280
Speaker 1: emergency under AEPA. Successive presidents have declared a wide variety

32
00:02:08,280 --> 00:02:12,519
Speaker 1: of topics to constitute a national emergency, and to date

33
00:02:12,600 --> 00:02:17,320
Speaker 1: there's not been any judicial decisions that have reversed a

34
00:02:17,360 --> 00:02:21,040
Speaker 1: president in how they define a national emergency under AEPA.

35
00:02:21,520 --> 00:02:24,400
Speaker 2: And so there have been challenges to a president's use

36
00:02:24,440 --> 00:02:25,440
Speaker 2: of IEPA.

37
00:02:25,560 --> 00:02:29,440
Speaker 1: Not really the use of I guess in this case,

38
00:02:29,440 --> 00:02:33,520
Speaker 1: the use of IEPA to impose tariffs is a new

39
00:02:33,800 --> 00:02:37,200
Speaker 1: use of IEPA. President Trump is the first president to

40
00:02:37,280 --> 00:02:41,800
Speaker 1: use IEPA as a basis for increasing tariffs. Previously, IEPA

41
00:02:41,800 --> 00:02:46,600
Speaker 1: has been used for targeting terrorist organizations or foreign countries

42
00:02:46,680 --> 00:02:49,440
Speaker 1: that are deemed to be taking actions to undermine US

43
00:02:49,520 --> 00:02:53,240
Speaker 1: national security. President Trump is using IEPA as a basis

44
00:02:53,280 --> 00:02:56,320
Speaker 1: to change terrorf rates on imports into the United States.

45
00:02:56,960 --> 00:03:01,799
Speaker 2: So IEPA is an exception because the Constitution gives the

46
00:03:02,240 --> 00:03:07,800
Speaker 2: legislative branch the power to lay and collect tacks's duties,

47
00:03:07,840 --> 00:03:12,280
Speaker 2: imposts and excises, and to regulate commerce with foreign nations.

48
00:03:12,360 --> 00:03:15,120
Speaker 2: I mean traditionally this is a role of Congress.

49
00:03:15,760 --> 00:03:21,600
Speaker 1: Right. AIPA is a statutory authority that Congress created to

50
00:03:22,280 --> 00:03:27,440
Speaker 1: delegate their constitutional authority to regulate foreign commerce and impose

51
00:03:27,520 --> 00:03:32,800
Speaker 1: tariff to the president. Now, one legal question that remains

52
00:03:32,840 --> 00:03:36,080
Speaker 1: and is unknown at this time as whether APA was

53
00:03:36,080 --> 00:03:39,320
Speaker 1: ever intended to allow the president and does allow the

54
00:03:39,360 --> 00:03:43,320
Speaker 1: president to increase tariff rates. As I noted before, traditionally

55
00:03:43,320 --> 00:03:47,160
Speaker 1: AIPA was used as a basis for economic sanctions against

56
00:03:47,200 --> 00:03:50,240
Speaker 1: the target organizations, individuals, and foreign governments.

57
00:03:50,760 --> 00:03:56,400
Speaker 2: Senator Chuck Grassley and Maria Cantwell introduced a bipartisan bill

58
00:03:57,080 --> 00:04:01,040
Speaker 2: that would give Congress final approval on tariff imposed by

59
00:04:01,040 --> 00:04:01,680
Speaker 2: a president.

60
00:04:02,040 --> 00:04:04,720
Speaker 1: I think that's a new development that there is some

61
00:04:04,800 --> 00:04:10,800
Speaker 1: momentum in Congress, including on a bipartisan basis to reassert

62
00:04:10,920 --> 00:04:17,000
Speaker 1: congressional authority and their constitutional authority to establish tariffs. Congress,

63
00:04:17,279 --> 00:04:19,920
Speaker 1: because they have that constitutional authority, can step in at

64
00:04:19,920 --> 00:04:23,800
Speaker 1: any time. They could reverse the reciprocal tariffs that President

65
00:04:23,800 --> 00:04:27,440
Speaker 1: Trump announced yesterday, and they could reverse the Section three

66
00:04:27,600 --> 00:04:30,479
Speaker 1: one tariffs that have been in place since twenty eighteen.

67
00:04:30,560 --> 00:04:34,200
Speaker 1: They've chosen thus far not to do that. But I

68
00:04:34,240 --> 00:04:38,320
Speaker 1: do think what you're seeing now is because these tariffs

69
00:04:38,360 --> 00:04:43,200
Speaker 1: are reaching new countries, including our neighbors such as Canada

70
00:04:43,200 --> 00:04:46,479
Speaker 1: and Mexico, there is some momentum in Congress to re

71
00:04:46,600 --> 00:04:50,240
Speaker 1: examine and potentially check what the President is doing in

72
00:04:50,279 --> 00:04:51,080
Speaker 1: the tariff space.

73
00:04:51,440 --> 00:04:55,120
Speaker 2: So, in other words, they don't need this new bipartisan bill.

74
00:04:55,200 --> 00:04:58,880
Speaker 2: They could just negate his tariffs by themselves.

75
00:04:59,320 --> 00:05:04,880
Speaker 1: Congress could as a statute establishing tariff rates for individual

76
00:05:04,920 --> 00:05:08,800
Speaker 1: countries that would be and take precedence over the executive

77
00:05:08,880 --> 00:05:14,480
Speaker 1: orders issued under AEPA. Congress also can introduce resolutions terminating

78
00:05:14,520 --> 00:05:18,279
Speaker 1: a national emergency, so in theory, Congress could take action

79
00:05:18,640 --> 00:05:21,919
Speaker 1: to withdraw the legal basis for the reciprocal tarifts that

80
00:05:21,960 --> 00:05:26,200
Speaker 1: President Trump announced yesterday. They have not todate done that

81
00:05:26,279 --> 00:05:29,600
Speaker 1: and again, I'd go back to the twenty eighteen tariffs

82
00:05:29,640 --> 00:05:33,360
Speaker 1: against China. You know, that's an example where Congress has

83
00:05:33,440 --> 00:05:36,120
Speaker 1: the authority to do something and to reverse it, but

84
00:05:36,240 --> 00:05:40,120
Speaker 1: today has not done so. I think the main point,

85
00:05:40,760 --> 00:05:43,599
Speaker 1: you know, is that Congress has a variety of tools

86
00:05:43,600 --> 00:05:46,880
Speaker 1: they could use here to to modify, to reverse, to

87
00:05:47,000 --> 00:05:50,599
Speaker 1: change what the executive branch is doing with respect to tariffs.

88
00:05:51,440 --> 00:05:53,880
Speaker 2: Do you see a method in the way the tariffs

89
00:05:53,920 --> 00:05:54,800
Speaker 2: have been imposed?

90
00:05:55,400 --> 00:06:00,839
Speaker 1: The actions under AEPA are designed to allow the President

91
00:06:01,720 --> 00:06:06,600
Speaker 1: to act with maximum speed and without really any process

92
00:06:06,640 --> 00:06:11,240
Speaker 1: prior to the decision to impose the tariffs. And you know,

93
00:06:11,320 --> 00:06:14,360
Speaker 1: under the executive Order, President Trump said there's a variety

94
00:06:14,400 --> 00:06:19,800
Speaker 1: of foreign barriers that US companies face that justify these

95
00:06:19,839 --> 00:06:23,960
Speaker 1: reciprocal tariffs. I think in terms of the final numbers,

96
00:06:24,040 --> 00:06:29,040
Speaker 1: it's difficult to explain how those numbers were arrived at

97
00:06:29,120 --> 00:06:32,239
Speaker 1: and what exactly the basis is for them. I think,

98
00:06:32,560 --> 00:06:35,920
Speaker 1: you know, the numbers were higher than a lot of

99
00:06:35,920 --> 00:06:39,599
Speaker 1: people expected. I think that's reflected in what the markets

100
00:06:39,640 --> 00:06:43,400
Speaker 1: are doing today as they adjust and look at the

101
00:06:43,440 --> 00:06:45,559
Speaker 1: full impact of what President Trump is doing.

102
00:06:45,960 --> 00:06:51,160
Speaker 2: How will it impact businesses in the United States? What

103
00:06:51,200 --> 00:06:54,160
Speaker 2: businesses in particular, will it have an impact on.

104
00:06:55,080 --> 00:06:57,839
Speaker 1: I think of tariff as unique to each company. Really,

105
00:06:58,000 --> 00:07:02,000
Speaker 1: each company operates in a different market with different price

106
00:07:02,040 --> 00:07:05,880
Speaker 1: pressures and profit margins and competition, and so it's hard

107
00:07:05,880 --> 00:07:10,440
Speaker 1: to generalize how these tariffs will hit. I think that

108
00:07:11,400 --> 00:07:15,200
Speaker 1: businesses to the extent they can take a weight and

109
00:07:15,240 --> 00:07:18,920
Speaker 1: see approach because they've built up inventory, you know, that's

110
00:07:18,960 --> 00:07:23,560
Speaker 1: one strategy. It's unclear the way these tariffs are set up,

111
00:07:23,600 --> 00:07:26,080
Speaker 1: whether over the medium the longer term they remain in effect.

112
00:07:26,600 --> 00:07:29,520
Speaker 1: So to the extent companies have that buffer, that is

113
00:07:29,560 --> 00:07:34,080
Speaker 1: a very valuable tool for them. I think for other

114
00:07:34,160 --> 00:07:37,679
Speaker 1: companies that don't have the luxury of waiting, they're looking at,

115
00:07:38,040 --> 00:07:40,480
Speaker 1: you know, to the extent they can pass pass the

116
00:07:40,520 --> 00:07:45,080
Speaker 1: increased cost onto their consumers without undermining their volume of sales.

117
00:07:45,480 --> 00:07:49,960
Speaker 1: And from my standpoint as an attorney who advises companies

118
00:07:49,960 --> 00:07:53,720
Speaker 1: on tariffs, I also think a lot of companies realize

119
00:07:53,760 --> 00:07:57,720
Speaker 1: that the compliance stakes are significantly increased when the tariff

120
00:07:57,760 --> 00:08:01,160
Speaker 1: goes up this much, right, because if you or compliance

121
00:08:01,600 --> 00:08:05,200
Speaker 1: practices don't get the country of origin correct or the

122
00:08:05,280 --> 00:08:09,440
Speaker 1: valuation correct, that now translates into a fairly significant change

123
00:08:09,440 --> 00:08:12,440
Speaker 1: in revenue that should have gone to the US government

124
00:08:12,480 --> 00:08:15,280
Speaker 1: if you're getting it incorrect. So from a compliance standpoint,

125
00:08:15,560 --> 00:08:18,760
Speaker 1: it's riskier now than it was on Monday. With respect

126
00:08:18,800 --> 00:08:22,000
Speaker 1: to declarations to US customs, What are some.

127
00:08:22,000 --> 00:08:25,160
Speaker 2: Of the biggest questions you're getting from clients.

128
00:08:25,560 --> 00:08:28,560
Speaker 1: I think companies are at least as of right now,

129
00:08:28,600 --> 00:08:32,640
Speaker 1: trying to fully understand what the map looks like, so

130
00:08:32,720 --> 00:08:35,680
Speaker 1: to speak. With respect to the tariffs, one thing that

131
00:08:35,840 --> 00:08:38,680
Speaker 1: I think is going to generate a lot of questions

132
00:08:39,040 --> 00:08:44,360
Speaker 1: is because the tariff rates differ by different countries. If

133
00:08:44,360 --> 00:08:48,120
Speaker 1: you have product lines that make multiple stops prior to

134
00:08:48,120 --> 00:08:52,439
Speaker 1: be importing into the United States through further assembly or manufacturing,

135
00:08:53,200 --> 00:08:57,000
Speaker 1: then the country of origin question becomes vitally important because

136
00:08:57,040 --> 00:08:59,840
Speaker 1: you may have a tariff rate down to ten percent

137
00:09:00,400 --> 00:09:02,680
Speaker 1: against the teriff rate that goes up to forty nine

138
00:09:02,720 --> 00:09:06,040
Speaker 1: percent on these reciprocal tariffs, and a lot of tariff

139
00:09:06,080 --> 00:09:09,280
Speaker 1: liabilities at stake in applying the rule of origin correctly.

140
00:09:09,320 --> 00:09:11,040
Speaker 1: So I think I think that's going to be one

141
00:09:11,080 --> 00:09:14,599
Speaker 1: area where companies are examining carefully. The other thing is

142
00:09:14,640 --> 00:09:17,040
Speaker 1: if you're stuck paying the tariff, the amount of tariff

143
00:09:17,080 --> 00:09:19,760
Speaker 1: you pay is going to be determined on how you

144
00:09:19,880 --> 00:09:22,840
Speaker 1: value the import as it comes into the United States.

145
00:09:22,840 --> 00:09:25,200
Speaker 1: And so a lot of companies who may not have

146
00:09:25,240 --> 00:09:29,920
Speaker 1: thought very hard about valuation because teriff rates or zero

147
00:09:30,360 --> 00:09:33,200
Speaker 1: or very low, or are looking at that question to

148
00:09:33,280 --> 00:09:36,640
Speaker 1: make sure they're not under or overvaluing the merchandise as

149
00:09:36,679 --> 00:09:38,480
Speaker 1: it comes into the United States.

150
00:09:39,000 --> 00:09:40,640
Speaker 2: A lot of the burden of this is going to

151
00:09:40,679 --> 00:09:45,040
Speaker 2: fall on consumers. The Yell Budget Lab estimates that all

152
00:09:45,080 --> 00:09:49,800
Speaker 2: the Trump Administration's tariffs will cost the average household three

153
00:09:50,280 --> 00:09:53,040
Speaker 2: eight hundred dollars in higher prices this year.

154
00:09:53,880 --> 00:09:56,760
Speaker 1: Yes, I mean, I think to the extent that at

155
00:09:56,800 --> 00:10:00,840
Speaker 1: the retail level, companies either can or must pass on

156
00:10:00,960 --> 00:10:04,480
Speaker 1: that cost to their consumers. It's going to drive up

157
00:10:04,559 --> 00:10:07,240
Speaker 1: the prices of a variety of things here in the

158
00:10:07,320 --> 00:10:08,679
Speaker 1: United States for consumers.

159
00:10:09,559 --> 00:10:12,200
Speaker 2: And what do you think the President is trying to

160
00:10:12,600 --> 00:10:14,479
Speaker 2: accomplish with these tariffs.

161
00:10:15,000 --> 00:10:17,480
Speaker 1: Well, I'll put it this way. The executive order gives

162
00:10:17,559 --> 00:10:23,840
Speaker 1: the president the authority to increase, modify, decrease, remove the

163
00:10:23,920 --> 00:10:28,720
Speaker 1: tariffs based on what foreign countries now do in reaction

164
00:10:29,280 --> 00:10:33,080
Speaker 1: to this executive order. So he could get into a

165
00:10:33,160 --> 00:10:38,720
Speaker 1: cycle of retaliation encounter retaliation. Alternatively, he might be able

166
00:10:38,760 --> 00:10:42,040
Speaker 1: to reach concessions with foreign countries that result in these

167
00:10:42,280 --> 00:10:46,880
Speaker 1: tariff freights coming down. I think one big unanswered question

168
00:10:46,920 --> 00:10:49,640
Speaker 1: for the business community right now is whether the President

169
00:10:49,760 --> 00:10:53,160
Speaker 1: intends for this to be a negotiation that results in

170
00:10:53,280 --> 00:10:58,200
Speaker 1: changes in other countries policies and practices, or if the

171
00:10:58,200 --> 00:11:01,280
Speaker 1: President just believes that a universe tariff that applies to

172
00:11:01,360 --> 00:11:04,880
Speaker 1: all global sources is a policy choice that he thinks

173
00:11:05,080 --> 00:11:08,720
Speaker 1: improves the United States economically. You know, we don't know

174
00:11:09,200 --> 00:11:13,760
Speaker 1: which of those two it is until things unfold down

175
00:11:13,840 --> 00:11:14,160
Speaker 1: the road.

176
00:11:15,480 --> 00:11:18,760
Speaker 2: And how does a World Trade Organization factor in here?

177
00:11:19,800 --> 00:11:23,560
Speaker 1: Well, one thing I think is interesting about the Executive

178
00:11:23,720 --> 00:11:29,600
Speaker 1: Order is that it talks about the creation of the

179
00:11:29,600 --> 00:11:35,680
Speaker 1: World Trade Organization and frames some of the issues here

180
00:11:36,000 --> 00:11:40,319
Speaker 1: as the United States allowing other countries to get away

181
00:11:40,360 --> 00:11:44,360
Speaker 1: with breaches of what they promised to do under the WTO.

182
00:11:44,880 --> 00:11:48,440
Speaker 1: So that's the US perspective, I think. On the foreign perspective,

183
00:11:48,720 --> 00:11:52,520
Speaker 1: they'll say, also pointing to the WTO, that we had

184
00:11:52,559 --> 00:11:55,920
Speaker 1: a deal and the United States agreed to keep its

185
00:11:55,960 --> 00:11:59,439
Speaker 1: tariffs low, and so they can't just sit by as

186
00:11:59,480 --> 00:12:02,600
Speaker 1: the United slime States acts and violation of that commitment,

187
00:12:02,760 --> 00:12:06,640
Speaker 1: and thus that becomes a basis for retaliation, and so

188
00:12:06,720 --> 00:12:10,120
Speaker 1: it's hard to have that crystal ball to see whether

189
00:12:10,559 --> 00:12:13,599
Speaker 1: this is going to create a spiraling effective retaliation or

190
00:12:13,640 --> 00:12:17,000
Speaker 1: count of retaliation, or if instead we could get to

191
00:12:17,000 --> 00:12:19,440
Speaker 1: some sort of equilibrium or these rates actually come down

192
00:12:20,000 --> 00:12:23,960
Speaker 1: as a result of agreements between the US and trading partners.

193
00:12:23,840 --> 00:12:28,160
Speaker 2: Under the WTO. Is there a mechanism if one member

194
00:12:28,280 --> 00:12:29,599
Speaker 2: violates the trade.

195
00:12:29,360 --> 00:12:33,880
Speaker 1: Laws, Yes, and that would be the complaint of the

196
00:12:34,000 --> 00:12:37,840
Speaker 1: US trading partners. Here is that you could make a

197
00:12:37,840 --> 00:12:42,280
Speaker 1: good argument that the WTO's entire purpose was to help

198
00:12:42,400 --> 00:12:47,680
Speaker 1: countries define when another country is breaching it's WTO obligations

199
00:12:47,720 --> 00:12:52,000
Speaker 1: through the dispute settlement process. There have been a lot

200
00:12:52,120 --> 00:12:56,120
Speaker 1: of complaints from Democrats and Republicans alike about the WTO

201
00:12:56,200 --> 00:12:59,880
Speaker 1: dispute settlement process, but I think the reality is that

202
00:13:00,520 --> 00:13:04,560
Speaker 1: foreign countries, you know, view this as the United States,

203
00:13:04,640 --> 00:13:07,480
Speaker 1: you know, walking away from that dispute settlement process and

204
00:13:07,520 --> 00:13:12,120
Speaker 1: going completely to a sort of bilateral negotiating process for

205
00:13:12,679 --> 00:13:16,880
Speaker 1: resolving trade disputes rather than multilaterally through the WTO.

206
00:13:17,280 --> 00:13:20,440
Speaker 2: We'll see what tomorrow brings. Thanks so much, Dave. That's

207
00:13:20,520 --> 00:13:24,120
Speaker 2: Dave Townshend of Dorsey and Whitney coming up next the

208
00:13:24,160 --> 00:13:29,359
Speaker 2: Supreme Court, Sir, the Supreme Court sides with an agency unanimously.

209
00:13:29,640 --> 00:13:34,720
Speaker 2: This is Bloomberg. More than one point six million middle

210
00:13:34,720 --> 00:13:39,040
Speaker 2: and high school students use e cigarettes, and about ninety

211
00:13:39,080 --> 00:13:43,240
Speaker 2: percent of them use flavored vapes. That's according to the CDC.

212
00:13:43,920 --> 00:13:47,400
Speaker 2: So the FDA has cracked down on sweet flavored vaping,

213
00:13:47,880 --> 00:13:52,760
Speaker 2: rejecting applications for more than a million nicotine products formulated

214
00:13:52,800 --> 00:13:56,880
Speaker 2: to taste like fruit, dessert, or candy, often with names

215
00:13:56,920 --> 00:14:00,800
Speaker 2: to attract kids. And this week the Supreme Court backed

216
00:14:00,880 --> 00:14:05,000
Speaker 2: up the FDA's authority, throwing out an appeals court decision

217
00:14:05,160 --> 00:14:10,079
Speaker 2: and ruling unanimously that the FDA's rejection of an application

218
00:14:10,240 --> 00:14:13,920
Speaker 2: to sell vaping liquids in flavors like Jimmy the Juice

219
00:14:13,960 --> 00:14:18,640
Speaker 2: in Peachey's Strawberry and Suicide Bunny Mother's Milk and Cookies

220
00:14:19,080 --> 00:14:23,040
Speaker 2: did not violate federal law. As Justice Elena Kagan said

221
00:14:23,120 --> 00:14:27,440
Speaker 2: during the oral arguments, the FDA's position has been clear.

222
00:14:28,200 --> 00:14:31,040
Speaker 4: Do you know that FDA thinks that flavors? I mean,

223
00:14:31,160 --> 00:14:35,080
Speaker 4: FDA has been completely upfront about this, and I think

224
00:14:35,120 --> 00:14:38,720
Speaker 4: that the point you know that flavors you give people

225
00:14:38,840 --> 00:14:44,560
Speaker 4: blueberry vapes. The difficulty with that and FDA, I think

226
00:14:44,600 --> 00:14:48,000
Speaker 4: has tried to document this is that blueberry vapes are

227
00:14:48,120 --> 00:14:51,400
Speaker 4: very appealing to sixteen year olds, not to forty year olds.

228
00:14:51,720 --> 00:14:54,920
Speaker 2: Joining me is healthcare attorney Harry Nelson, a partner at

229
00:14:54,960 --> 00:14:59,560
Speaker 2: leech Tishman Nelson Hardiman. A unanimous decision in a case

230
00:14:59,720 --> 00:15:03,600
Speaker 2: in a federal agency. Surprise, surprise.

231
00:15:04,240 --> 00:15:07,160
Speaker 5: I was surprised that the Supreme Court came out unanimous

232
00:15:07,240 --> 00:15:11,320
Speaker 5: on this. You know, when it comes to administrative procedure,

233
00:15:11,360 --> 00:15:14,000
Speaker 5: which has been so controversial lately, it's surprising to see

234
00:15:14,000 --> 00:15:17,440
Speaker 5: the Court so unified. So it was a pleasant surprise

235
00:15:17,840 --> 00:15:20,440
Speaker 5: to see them on the same page about supporting the

236
00:15:20,560 --> 00:15:21,160
Speaker 5: FDA here.

237
00:15:21,560 --> 00:15:24,440
Speaker 2: So let's go back a bit. The FDA rejected the

238
00:15:24,600 --> 00:15:29,080
Speaker 2: applications to market the candy and dessert flavored vapes. What

239
00:15:29,320 --> 00:15:31,040
Speaker 2: was the reason for the rejection.

240
00:15:31,880 --> 00:15:36,160
Speaker 5: The FDA essentially said that there was no public benefit

241
00:15:36,400 --> 00:15:40,200
Speaker 5: and that flavored products raised concerns about protecting the public health.

242
00:15:40,240 --> 00:15:44,520
Speaker 5: That the product flavors and the marketing names, which were

243
00:15:45,000 --> 00:15:49,320
Speaker 5: you know, very hip names, were specifically intended to appeal

244
00:15:49,400 --> 00:15:53,040
Speaker 5: to teens and would get more kids to be using

245
00:15:53,400 --> 00:15:56,960
Speaker 5: the cigarette so that was the justification for denying these

246
00:15:56,960 --> 00:15:58,480
Speaker 5: applications for approval.

247
00:15:58,880 --> 00:16:01,800
Speaker 2: So the justice this is undid this ruling from the

248
00:16:01,840 --> 00:16:05,360
Speaker 2: Fifth Circuit Court of Appeals, which was an outlier among

249
00:16:05,440 --> 00:16:10,200
Speaker 2: the circuits, and it accused the agency of a regulatory switcheroo.

250
00:16:10,920 --> 00:16:12,640
Speaker 2: Tell us what the Fifth Circuit said.

251
00:16:13,800 --> 00:16:16,400
Speaker 5: Yeah, So the twenty twenty three decisions from the Fifth

252
00:16:16,440 --> 00:16:19,320
Speaker 5: Circuit was, you know, along the lines of the kind

253
00:16:19,360 --> 00:16:23,880
Speaker 5: of conservative critique of federal agencies that we've heard in

254
00:16:23,920 --> 00:16:27,720
Speaker 5: recent years, that they had essentially exceeded their authority under

255
00:16:27,720 --> 00:16:29,880
Speaker 5: the Administrative Procedure Act, which is a federal law that

256
00:16:30,000 --> 00:16:33,640
Speaker 5: gives federal agencies the right to make decisions, and they

257
00:16:33,640 --> 00:16:37,640
Speaker 5: accused them of moving the goalposts by changing the evidentiary

258
00:16:37,680 --> 00:16:41,080
Speaker 5: standard of how the decision on authorization of these products

259
00:16:41,160 --> 00:16:44,040
Speaker 5: was made, you know, for example, adding a requirement to

260
00:16:44,080 --> 00:16:48,320
Speaker 5: get studies with randomized controlled trials, even though that had

261
00:16:48,360 --> 00:16:50,960
Speaker 5: not been clearly communicated as something that the day was

262
00:16:50,960 --> 00:16:53,640
Speaker 5: going to expect a few years earlier. They also criticized

263
00:16:53,680 --> 00:16:56,960
Speaker 5: them for inconsistency and lack of transparency in the decision

264
00:16:57,000 --> 00:17:00,320
Speaker 5: making process. And frankly, it was not surprising to see

265
00:17:00,320 --> 00:17:03,800
Speaker 5: the Fifth Circuit, which has been such a kind of

266
00:17:04,480 --> 00:17:07,040
Speaker 5: you know, tip of the spear in the kind of

267
00:17:07,359 --> 00:17:12,200
Speaker 5: activist conservative arguments against federal agency rulemaking, to see them

268
00:17:12,480 --> 00:17:15,080
Speaker 5: sort of standing out for the other circuits and taking

269
00:17:15,080 --> 00:17:18,480
Speaker 5: the FDA to task and siding with the industry. So

270
00:17:18,640 --> 00:17:21,080
Speaker 5: that was the sort of underlying basis of their decision

271
00:17:22,000 --> 00:17:22,480
Speaker 5: last term.

272
00:17:22,520 --> 00:17:26,400
Speaker 2: They were the most reversed circuit, taking that position from

273
00:17:26,520 --> 00:17:28,639
Speaker 2: the Ninth Circuit, which held it for a long time.

274
00:17:29,000 --> 00:17:33,840
Speaker 2: So Justice Samuel Alito wrote the opinion, tell us what

275
00:17:33,960 --> 00:17:37,399
Speaker 2: he said about the FDA's rejection of the applications.

276
00:17:38,119 --> 00:17:41,280
Speaker 5: The decision, again, which was unanimous, was that, you know,

277
00:17:41,320 --> 00:17:43,720
Speaker 5: the FDA we're talking now about a decision during the

278
00:17:43,720 --> 00:17:47,400
Speaker 5: Biden administration, did not violate federal law and that there

279
00:17:47,480 --> 00:17:50,280
Speaker 5: was not a basis to view their rejection of the

280
00:17:50,320 --> 00:17:55,240
Speaker 5: applications from these two cigarette companies as arbitrary. And essentially,

281
00:17:55,400 --> 00:17:59,280
Speaker 5: the decision was really that the FDA was entitled to

282
00:17:59,320 --> 00:18:03,040
Speaker 5: evaluate the evidence that evaluated that there was no evidence

283
00:18:03,080 --> 00:18:06,800
Speaker 5: that the FDA had made any kind of unreasonable or

284
00:18:07,000 --> 00:18:08,280
Speaker 5: rational decision.

285
00:18:09,160 --> 00:18:12,200
Speaker 2: The justices are remanding the case or sending a case

286
00:18:12,320 --> 00:18:16,040
Speaker 2: back to the Fifth Circuit to consider one aspect of

287
00:18:16,080 --> 00:18:19,760
Speaker 2: the case involving the company's marketing plans.

288
00:18:20,040 --> 00:18:23,720
Speaker 5: The point of the remand was to allow the Fifth

289
00:18:23,720 --> 00:18:28,439
Speaker 5: Circuit to go back and reconsider its decision, taking the

290
00:18:28,520 --> 00:18:32,520
Speaker 5: guidance that the FAA did not overreach administratively and that

291
00:18:32,760 --> 00:18:37,080
Speaker 5: decision was appropriate. But ultimately, as is always the case,

292
00:18:37,119 --> 00:18:40,640
Speaker 5: the Supreme Court is remanding down so that the decision

293
00:18:40,720 --> 00:18:43,560
Speaker 5: can be made at the appellate court level and rather

294
00:18:43,640 --> 00:18:47,199
Speaker 5: than actually taking the active decision itself here, So the

295
00:18:47,200 --> 00:18:50,960
Speaker 5: Fifth circuits hands are tied and they're bound by the

296
00:18:51,000 --> 00:18:52,000
Speaker 5: Supreme Court's guidance.

297
00:18:52,040 --> 00:18:52,200
Speaker 3: Here.

298
00:18:52,320 --> 00:18:54,520
Speaker 5: The real question to me is what's going to happen

299
00:18:54,880 --> 00:18:57,520
Speaker 5: at the FEA itself and whether the FDA is going

300
00:18:57,560 --> 00:19:00,800
Speaker 5: to make any change here. There's been a lot of

301
00:19:01,080 --> 00:19:04,960
Speaker 5: questions asked about President Trump's danced when he promised in

302
00:19:05,000 --> 00:19:08,600
Speaker 5: the campaign to save vaping, whether that extends to these

303
00:19:08,680 --> 00:19:12,720
Speaker 5: kind of you know, teen focused e cigarettes, And also

304
00:19:12,800 --> 00:19:15,520
Speaker 5: because there's been changes at the FDA that have shifted

305
00:19:15,520 --> 00:19:18,760
Speaker 5: the top regulator on tobacco out of the pictures. So

306
00:19:18,800 --> 00:19:20,520
Speaker 5: there's a lot of questions looking to happen at the FVA.

307
00:19:20,600 --> 00:19:23,320
Speaker 5: But for right now, essentially, the Supreme Court ordered the

308
00:19:23,320 --> 00:19:27,439
Speaker 5: circuit to consider if there's any basis sports decision. In

309
00:19:27,480 --> 00:19:29,640
Speaker 5: spite of this ruling, and in.

310
00:19:29,600 --> 00:19:37,240
Speaker 2: The opinion, Alito highlighted the potential dangers of flavored e cigarettes.

311
00:19:38,160 --> 00:19:42,439
Speaker 2: He wrote, the kaleidoscope of flavor options adds to the

312
00:19:42,440 --> 00:19:46,040
Speaker 2: allure of e cigarettes and has thus contributed to the

313
00:19:46,080 --> 00:19:49,480
Speaker 2: booming demand for such products among young Americans.

314
00:19:50,000 --> 00:19:53,120
Speaker 5: Yeah. Absolutely, I mean, you know, it's impossible to look

315
00:19:53,160 --> 00:19:56,280
Speaker 5: at these products and the names and the flavors and

316
00:19:56,720 --> 00:20:00,400
Speaker 5: to think that these are not focused on kids. There

317
00:20:00,400 --> 00:20:03,879
Speaker 5: were products like Jimmy the Juice Man, and peachy strawberry

318
00:20:03,920 --> 00:20:06,719
Speaker 5: was an example of a flavor. Ano there's a flavor.

319
00:20:07,160 --> 00:20:10,640
Speaker 5: One of the companies, Triton has suicide Bunnies, mother Milk,

320
00:20:10,680 --> 00:20:14,320
Speaker 5: and cookies. These names are you know, very clearly oriented

321
00:20:14,440 --> 00:20:19,719
Speaker 5: towards youth culture and in flavors to make the products

322
00:20:19,880 --> 00:20:22,960
Speaker 5: as attractive as possible to kids. You know, we have

323
00:20:23,000 --> 00:20:27,160
Speaker 5: a very established mature market of adult cigarette that don't

324
00:20:27,160 --> 00:20:30,480
Speaker 5: have you know, branding like these things don't have flavors

325
00:20:30,560 --> 00:20:33,119
Speaker 5: with you know, candy and fruit and so on. And

326
00:20:33,160 --> 00:20:36,680
Speaker 5: it's very unmistakable that this is an effort to grow

327
00:20:37,160 --> 00:20:41,400
Speaker 5: a new audience, a new consumer base, and presumably it's

328
00:20:41,440 --> 00:20:43,360
Speaker 5: a very young one.

329
00:20:43,400 --> 00:20:45,040
Speaker 2: Is there an epidemic of.

330
00:20:45,040 --> 00:20:46,840
Speaker 1: Vaping, No question.

331
00:20:47,119 --> 00:20:49,480
Speaker 5: I think that has really been one of the big

332
00:20:49,520 --> 00:20:53,000
Speaker 5: issues that's driven the FDA response. There's clearly among kids,

333
00:20:53,119 --> 00:20:57,359
Speaker 5: among teams, an epidemic in vaping. It may have you know,

334
00:20:57,560 --> 00:21:01,760
Speaker 5: peaked or certainly reached epidemic levels a decade ago, and

335
00:21:01,800 --> 00:21:05,760
Speaker 5: there has been some decline from maybe the twenty ten

336
00:21:06,280 --> 00:21:09,040
Speaker 5: but right before the pandemic, I believe the numbers were

337
00:21:09,400 --> 00:21:12,040
Speaker 5: reported by the US Surgeon General were like over five

338
00:21:12,160 --> 00:21:16,879
Speaker 5: million high schoolers and middle schoolers using e cigarettes. We've

339
00:21:16,880 --> 00:21:20,000
Speaker 5: famously had Jewel, the brand that was blamed for that.

340
00:21:20,160 --> 00:21:23,520
Speaker 5: But there has been a decline in reported numbers, but

341
00:21:23,600 --> 00:21:25,960
Speaker 5: we still are seeing something like ten percent of high

342
00:21:25,960 --> 00:21:29,920
Speaker 5: school students using e cigarettes. That might be only half

343
00:21:29,920 --> 00:21:31,879
Speaker 5: of the number, or you know, less than half from

344
00:21:31,960 --> 00:21:35,440
Speaker 5: five or ten years ago, but that's still a troubling number.

345
00:21:35,880 --> 00:21:39,920
Speaker 5: And it's clear that flavored e cigarettes remain incredibly popular

346
00:21:39,960 --> 00:21:41,080
Speaker 5: and incredibly polarizing.

347
00:21:41,680 --> 00:21:45,800
Speaker 2: Those on the other side of this equation have said

348
00:21:45,960 --> 00:21:50,960
Speaker 2: that the agency, the FDA, hasn't accepted evidence that the

349
00:21:51,200 --> 00:21:55,439
Speaker 2: e cigarettes are not as harmful as once believed, and

350
00:21:55,480 --> 00:21:58,520
Speaker 2: that studies show they can help people quit smoking.

351
00:21:59,000 --> 00:22:02,840
Speaker 5: That's the argument advanced by these cigarette makers that on

352
00:22:02,880 --> 00:22:07,160
Speaker 5: a harm reduction level, that these products are safer than

353
00:22:07,280 --> 00:22:10,720
Speaker 5: smoking actual cigarettes, that they're much less toxic, and that

354
00:22:10,840 --> 00:22:14,280
Speaker 5: also that these are a tool because they are a

355
00:22:14,320 --> 00:22:17,080
Speaker 5: safer alternative, they're a tool that can lead people to

356
00:22:17,560 --> 00:22:20,679
Speaker 5: quit smoking. And you know, I'm sure that there is

357
00:22:20,760 --> 00:22:23,480
Speaker 5: some evidence to support that view. This is these are

358
00:22:23,480 --> 00:22:26,919
Speaker 5: complicated topics where on the one hand, we have we're

359
00:22:26,960 --> 00:22:30,560
Speaker 5: facing an immediate public health problem of you know, the

360
00:22:30,600 --> 00:22:33,119
Speaker 5: net effects of people using these products and cancer and

361
00:22:33,160 --> 00:22:35,760
Speaker 5: all the other negative health effects. But at the same time,

362
00:22:36,320 --> 00:22:39,520
Speaker 5: you know, it may be true that this particular product,

363
00:22:40,040 --> 00:22:42,520
Speaker 5: among all the options of things that can be smoked,

364
00:22:43,119 --> 00:22:46,200
Speaker 5: is one that is less harmful in its actual use

365
00:22:46,320 --> 00:22:49,760
Speaker 5: and a pathway for people who want to quit. But

366
00:22:50,240 --> 00:22:54,320
Speaker 5: it's almost impossible to resolve, you know, the net public

367
00:22:54,320 --> 00:22:56,600
Speaker 5: health gain of any one product because there's so many

368
00:22:56,680 --> 00:22:59,520
Speaker 5: choices in the market, and we're never going to get

369
00:22:59,560 --> 00:23:02,320
Speaker 5: to a place of zeros, you know, smoking. We've made

370
00:23:02,560 --> 00:23:04,640
Speaker 5: progress in the last few years, but it's really tough

371
00:23:04,680 --> 00:23:08,560
Speaker 5: to talk about or make a compelling case in my opinion,

372
00:23:08,600 --> 00:23:12,600
Speaker 5: that these products are ultimately positive for public health because

373
00:23:12,600 --> 00:23:14,040
Speaker 5: there's more dangerous products out there.

374
00:23:14,200 --> 00:23:16,840
Speaker 2: And the FDA, what's the line they draw because they

375
00:23:16,880 --> 00:23:21,399
Speaker 2: have approved some tobacco flavored vapes and allowed the first

376
00:23:21,480 --> 00:23:25,760
Speaker 2: mental flavored e cigarettes for adult smokers. I mean, what's

377
00:23:25,760 --> 00:23:26,879
Speaker 2: the line that they're drawing.

378
00:23:27,520 --> 00:23:30,600
Speaker 5: The standard that they've come to is, you know, net

379
00:23:30,720 --> 00:23:34,280
Speaker 5: public benefit, and the question is whether a particular product

380
00:23:34,320 --> 00:23:37,280
Speaker 5: is appropriate for protecting the public health. And essentially it's

381
00:23:37,280 --> 00:23:40,200
Speaker 5: a balancing act that the FDA is engaging in of

382
00:23:40,280 --> 00:23:44,440
Speaker 5: whether the product, you know, does it help adult smokers

383
00:23:44,600 --> 00:23:49,560
Speaker 5: switch from using traditional combustible cigarettes with all the additional

384
00:23:49,600 --> 00:23:52,919
Speaker 5: problems that those bring, or you know, does it entice

385
00:23:53,400 --> 00:23:56,480
Speaker 5: use smokers, which isn't And that's the challenge is it's

386
00:23:56,480 --> 00:23:58,760
Speaker 5: not either or if you can extent these products can

387
00:23:58,800 --> 00:24:02,000
Speaker 5: make the case that they are giving adult smokers a

388
00:24:02,040 --> 00:24:07,040
Speaker 5: healthier option and potentially a pathway to stop smoking, that's

389
00:24:07,119 --> 00:24:09,760
Speaker 5: a positive public benefit. And on the other side that

390
00:24:09,760 --> 00:24:13,680
Speaker 5: I seeweight against whether this is encouraging kids or non

391
00:24:13,680 --> 00:24:16,800
Speaker 5: smokers to start smoking. So the FDA is balancing and

392
00:24:16,840 --> 00:24:20,520
Speaker 5: looking for a net you know, decision about whether the

393
00:24:20,560 --> 00:24:22,560
Speaker 5: benefit or the threat is worse.

394
00:24:23,200 --> 00:24:26,919
Speaker 2: How important. Is this case? Is it a significant point

395
00:24:27,119 --> 00:24:30,680
Speaker 2: in the FDA's battle with the vaping industry.

396
00:24:31,119 --> 00:24:34,119
Speaker 5: I think this case is significant in that, you know,

397
00:24:34,160 --> 00:24:37,080
Speaker 5: we've seen in the last year with the sort of

398
00:24:37,520 --> 00:24:40,440
Speaker 5: you know, the remaking of the Chevron deference standard, we've

399
00:24:40,440 --> 00:24:44,080
Speaker 5: seen the Supreme Court essentially move to a position that

400
00:24:44,440 --> 00:24:48,600
Speaker 5: you know, that weakens the power of federal agencies to regulate.

401
00:24:48,720 --> 00:24:50,399
Speaker 5: But here was a case where the Supreme Court is

402
00:24:50,440 --> 00:24:55,080
Speaker 5: pushing back and clearly defending the FDA. So I do

403
00:24:55,119 --> 00:24:59,240
Speaker 5: think this case is significant in kind of signaling that

404
00:24:59,280 --> 00:25:01,840
Speaker 5: we may have a high water mark of how much

405
00:25:02,080 --> 00:25:05,040
Speaker 5: Supreme Court is, you know, this Court is prepared to

406
00:25:05,600 --> 00:25:09,840
Speaker 5: reign in federal agencies on the particular issue of e cigarette.

407
00:25:10,320 --> 00:25:13,480
Speaker 5: You know, given all the changes going on at the FDA,

408
00:25:13,560 --> 00:25:15,920
Speaker 5: it's it remains to be seen whether this decision will

409
00:25:15,960 --> 00:25:19,000
Speaker 5: have any relevance because the FDA could on the ground

410
00:25:19,119 --> 00:25:22,719
Speaker 5: make you know, new actors at the FDA could certainly

411
00:25:22,760 --> 00:25:25,400
Speaker 5: come up with a more liberal decision, you know, if

412
00:25:25,400 --> 00:25:28,040
Speaker 5: that is in fact the trend or the view of

413
00:25:28,080 --> 00:25:30,760
Speaker 5: the current leadership. So I think it's a significant decision

414
00:25:30,800 --> 00:25:33,119
Speaker 5: in sort of measuring where the Supreme Court is on

415
00:25:33,200 --> 00:25:37,119
Speaker 5: federal agencies generally, but not necessarily the end of the

416
00:25:37,160 --> 00:25:41,040
Speaker 5: story with regard to you know, kids and e cigarette flavors.

417
00:25:41,760 --> 00:25:46,240
Speaker 2: So, as you mentioned, President Trump campaigned on saving vaping,

418
00:25:47,000 --> 00:25:51,000
Speaker 2: and the executive director of the trade association that represents

419
00:25:51,040 --> 00:25:54,879
Speaker 2: e cigarette companies after this decision, called on Trump to

420
00:25:54,920 --> 00:25:59,720
Speaker 2: fulfill his campaign promise. Did Trump promise to say flavored

421
00:25:59,760 --> 00:26:01,720
Speaker 2: vase or just vaping?

422
00:26:02,480 --> 00:26:05,040
Speaker 5: This is a huge question. It's you know, by the way,

423
00:26:05,080 --> 00:26:07,160
Speaker 5: in the first Trump administration, we saw that they were

424
00:26:07,200 --> 00:26:10,720
Speaker 5: supportive of efforts to reign in flavored e cigarettes and kids.

425
00:26:11,119 --> 00:26:14,159
Speaker 5: My sense is that what President Trump on the stump

426
00:26:14,640 --> 00:26:18,240
Speaker 5: campaigning was when he talked about saving vaping was really

427
00:26:18,320 --> 00:26:22,720
Speaker 5: to reign in public regulation at the state and local

428
00:26:22,840 --> 00:26:27,360
Speaker 5: level of adults ability to smoke in public and outdoor venues.

429
00:26:27,400 --> 00:26:31,040
Speaker 5: And we've constrained more and more as a society whether

430
00:26:31,080 --> 00:26:35,440
Speaker 5: people can smoke in restaurants and cafes, in like public venues,

431
00:26:35,480 --> 00:26:38,760
Speaker 5: in parks and concert venues. And I think I think

432
00:26:38,800 --> 00:26:42,320
Speaker 5: President Trump was standing up for and saying, you know,

433
00:26:42,760 --> 00:26:44,600
Speaker 5: I'm not going to let them take this away from

434
00:26:44,600 --> 00:26:48,359
Speaker 5: you further and eliminate smoking from our society entirely. But

435
00:26:48,520 --> 00:26:50,919
Speaker 5: I don't think he was in any way trying to

436
00:26:51,119 --> 00:26:53,480
Speaker 5: take a position on this. And I think it's a

437
00:26:53,480 --> 00:26:56,320
Speaker 5: really interesting issue because while we do see that there

438
00:26:56,359 --> 00:26:59,720
Speaker 5: is this kind of libertarian you know, let people do

439
00:26:59,800 --> 00:27:03,080
Speaker 5: what they want to do standard in the Trump administration

440
00:27:03,200 --> 00:27:05,679
Speaker 5: to some extent, we also see like a push for

441
00:27:05,880 --> 00:27:08,800
Speaker 5: you know, make America healthy again. And I don't personally

442
00:27:08,800 --> 00:27:12,560
Speaker 5: believe that President Trump is going to put energy into

443
00:27:13,160 --> 00:27:16,879
Speaker 5: resuscitating you know, the flavorty cigarette companies, you know, the

444
00:27:17,000 --> 00:27:20,560
Speaker 5: promotions that are edgy and pushing towards a younger market.

445
00:27:20,600 --> 00:27:22,960
Speaker 5: I just don't think that's where he was. To the

446
00:27:22,960 --> 00:27:25,400
Speaker 5: extent anyone can read Bill tee leaves on what he's saying,

447
00:27:25,440 --> 00:27:27,359
Speaker 5: I just don't think that's what he meant to say.

448
00:27:27,840 --> 00:27:31,639
Speaker 2: And have there been changes at the FDA of people

449
00:27:31,720 --> 00:27:33,840
Speaker 2: who work in this area.

450
00:27:33,960 --> 00:27:36,600
Speaker 5: It's a challenge right now to figure out what's going on.

451
00:27:36,680 --> 00:27:39,600
Speaker 5: We know that, like as I mentioned, Brian King, the

452
00:27:39,640 --> 00:27:43,399
Speaker 5: previous head of tobacco regulation at the FDA, he has gone. Obviously,

453
00:27:43,680 --> 00:27:47,359
Speaker 5: we're still learning what you know the role of RFK,

454
00:27:47,640 --> 00:27:50,240
Speaker 5: Robert F. Kennedy is going to be. And we're seeing

455
00:27:50,240 --> 00:27:54,159
Speaker 5: a massive you know, restructuring and pulling out of people

456
00:27:54,400 --> 00:27:58,560
Speaker 5: in not only areas like vaccines and but also in tobacco.

457
00:27:59,080 --> 00:28:01,639
Speaker 5: So I do expect that there's going to be a

458
00:28:01,680 --> 00:28:04,360
Speaker 5: new team and a new direction on this, but it's

459
00:28:04,400 --> 00:28:07,720
Speaker 5: still too early to tell exactly who is going to

460
00:28:07,720 --> 00:28:10,119
Speaker 5: be leading it and exactly what the charge is going

461
00:28:10,160 --> 00:28:10,359
Speaker 5: to be.

462
00:28:11,000 --> 00:28:14,720
Speaker 2: Last month, the New York State Attorney General filed suit

463
00:28:14,800 --> 00:28:21,360
Speaker 2: against thirteen manufacturers, distributors, and retailers of vape devices, accusing

464
00:28:21,400 --> 00:28:24,119
Speaker 2: them of targeting young people with a highly addictive product.

465
00:28:24,160 --> 00:28:26,720
Speaker 2: So we might see more state enforcement.

466
00:28:27,480 --> 00:28:29,560
Speaker 5: Yeah, absolutely, that's it's going to you know, you get

467
00:28:29,560 --> 00:28:32,800
Speaker 5: into a really interesting area of state federal where clearly

468
00:28:32,960 --> 00:28:36,000
Speaker 5: states like New York and California are going to take

469
00:28:36,040 --> 00:28:38,840
Speaker 5: a much more aggressive stance and take the lead on,

470
00:28:39,360 --> 00:28:41,640
Speaker 5: you know, filling what they perceive as a gap as

471
00:28:41,640 --> 00:28:45,160
Speaker 5: we see some more you know, liberal policies on a

472
00:28:45,200 --> 00:28:48,320
Speaker 5: whole number of issues around tobacco. So I think it

473
00:28:48,360 --> 00:28:51,040
Speaker 5: would not be surprising to see more states doing things

474
00:28:51,080 --> 00:28:54,480
Speaker 5: like flavor bands and more you know smoke free air

475
00:28:54,560 --> 00:28:58,320
Speaker 5: laws and more age restrictions. And it's clear that you know,

476
00:28:58,480 --> 00:29:02,400
Speaker 5: those states that are at odds with the federal approach.

477
00:29:02,760 --> 00:29:05,800
Speaker 5: Are going to step into the void here and we

478
00:29:05,800 --> 00:29:08,320
Speaker 5: should expect to see that for the next few years.

479
00:29:08,600 --> 00:29:11,920
Speaker 2: Coming up next on the Bloomberg Law Show is Robert F.

480
00:29:12,000 --> 00:29:16,400
Speaker 2: Kennedy Junior confirming the worst fears about his running the

481
00:29:16,480 --> 00:29:20,000
Speaker 2: Department of Health and Human Services. I'm June Grots. When

482
00:29:20,040 --> 00:29:23,600
Speaker 2: you're listening to Bloomberg, I've been talking to healthcare attorney

483
00:29:23,600 --> 00:29:27,960
Speaker 2: Harry Nelson, a partner at leech Tishman Nelson Hardiman. I

484
00:29:28,000 --> 00:29:32,520
Speaker 2: want to turn to RFK Junior and his leadership of

485
00:29:32,680 --> 00:29:36,400
Speaker 2: the Department of Health and Human Services. As many as

486
00:29:36,400 --> 00:29:41,320
Speaker 2: ten thousand notices were sent to scientists, senior leaders, doctors, inspectors,

487
00:29:41,360 --> 00:29:46,120
Speaker 2: and others in his massive restructuring of the agency. He's

488
00:29:46,200 --> 00:29:51,880
Speaker 2: been a vaccine skeptic and subscribed to various fringe theories,

489
00:29:52,440 --> 00:29:56,880
Speaker 2: and his position on vaccines was a top topic during

490
00:29:56,920 --> 00:30:01,520
Speaker 2: his confirmation hearings. Here's an exchange with Democratic Senator Ron

491
00:30:01,560 --> 00:30:03,360
Speaker 2: Wyden of Oregon.

492
00:30:04,160 --> 00:30:07,840
Speaker 1: I support the measles vaccine. I support the pollio vaccine.

493
00:30:07,920 --> 00:30:11,960
Speaker 1: I will do nothing as AHH as secretary that makes

494
00:30:12,000 --> 00:30:16,440
Speaker 1: it difficult or discourages people from taking anybody who believes

495
00:30:16,480 --> 00:30:18,960
Speaker 1: that on a look at the measles book, you wrote

496
00:30:19,080 --> 00:30:22,720
Speaker 1: saying parents have been misled into believing that measles is

497
00:30:22,760 --> 00:30:24,600
Speaker 1: the deadly disease. That's not true.

498
00:30:25,200 --> 00:30:29,560
Speaker 2: But he's pushed out the top vaccine official at the FDA,

499
00:30:30,240 --> 00:30:37,440
Speaker 2: he's announced plans to investigate already debunk theories between vaccines

500
00:30:37,600 --> 00:30:42,200
Speaker 2: and autism, and he's still promoting alternatives to vaccines.

501
00:30:42,760 --> 00:30:45,200
Speaker 5: Well, I mean, we've seen like a complete clearing house

502
00:30:45,240 --> 00:30:49,600
Speaker 5: of all the vaccine leadership, you know, personnel, and multiple

503
00:30:49,880 --> 00:30:52,800
Speaker 5: parts of the Department of Health and Human Services are

504
00:30:53,440 --> 00:30:56,120
Speaker 5: being cleared out, so we're seeing that. Yeah, he's moving

505
00:30:56,200 --> 00:30:58,840
Speaker 5: very quickly. By the way, it's going to be very

506
00:30:58,840 --> 00:31:00,640
Speaker 5: interesting to watch him on to backover because he was

507
00:31:01,040 --> 00:31:04,960
Speaker 5: seen during his confirmation hearing actually using a nicotine pouch.

508
00:31:05,120 --> 00:31:07,000
Speaker 5: So there's a lot of people kind of questioning what

509
00:31:07,080 --> 00:31:09,800
Speaker 5: his precise position is going to be on this issue.

510
00:31:09,960 --> 00:31:12,560
Speaker 5: But clearly we've already seen from the moves that are

511
00:31:12,560 --> 00:31:18,120
Speaker 5: being made aggressively to transfer and put on administrative leave

512
00:31:18,280 --> 00:31:21,680
Speaker 5: people in leadership roles in vaccine strategy, that there's going

513
00:31:21,760 --> 00:31:25,640
Speaker 5: to be major major changes coming in vaccine policy and

514
00:31:25,920 --> 00:31:30,160
Speaker 5: a much more neutral position coming from the federal government.

515
00:31:30,680 --> 00:31:34,920
Speaker 2: He did make promises to some senators to get confirmed.

516
00:31:35,400 --> 00:31:37,600
Speaker 2: Of course, we know how much promise is made during

517
00:31:37,600 --> 00:31:41,440
Speaker 2: the confirmation process. And what caught my eye was that

518
00:31:41,960 --> 00:31:46,280
Speaker 2: he forced out the top vaccine official, the man behind

519
00:31:46,320 --> 00:31:49,640
Speaker 2: the wrapping up of getting the COVID vaccine out.

520
00:31:49,920 --> 00:31:53,120
Speaker 5: Forcing these leadership changes and presumably putting into place people

521
00:31:53,160 --> 00:31:56,440
Speaker 5: who are much closer to his own position as a

522
00:31:56,520 --> 00:31:59,200
Speaker 5: vaccine skeptic is going to be a huge difference. We've

523
00:31:59,240 --> 00:32:02,480
Speaker 5: also seen quickly, you know that he's taking seriously a

524
00:32:02,520 --> 00:32:06,800
Speaker 5: proposal to split the Center for Disease Control and Prevent

525
00:32:06,880 --> 00:32:10,080
Speaker 5: It into separate agencies in terms of data collection and

526
00:32:10,120 --> 00:32:15,120
Speaker 5: policy recommendations that could really change our vaccine response in

527
00:32:15,200 --> 00:32:18,960
Speaker 5: vaccine policy. And you know, we've seen removal of testing

528
00:32:19,000 --> 00:32:22,200
Speaker 5: requirements for in the head Start program, and so it's

529
00:32:22,320 --> 00:32:24,080
Speaker 5: likely that a lot of the vaccine mandates at the

530
00:32:24,080 --> 00:32:27,200
Speaker 5: federal level are going to be either weekend or removed.

531
00:32:27,240 --> 00:32:28,600
Speaker 5: And just as we were talking about a minute ago,

532
00:32:28,600 --> 00:32:31,280
Speaker 5: it's very likely that in many states those things will

533
00:32:31,320 --> 00:32:33,760
Speaker 5: pop back up at state level requirements.

534
00:32:34,320 --> 00:32:37,560
Speaker 2: As far as the measles outbreak, which has now spread

535
00:32:37,600 --> 00:32:41,800
Speaker 2: to Kansas and Ohio after sickening about four hundred in

536
00:32:41,880 --> 00:32:46,160
Speaker 2: Texas and New Mexico. He downplayed the importance of that

537
00:32:46,320 --> 00:32:50,600
Speaker 2: vaccine in a Fox interview last month. He said, there

538
00:32:50,640 --> 00:32:53,800
Speaker 2: are adverse events from the vaccine. It does cause deests

539
00:32:53,880 --> 00:32:58,840
Speaker 2: every year, it causes all the illnesses that measles itself causes.

540
00:32:59,720 --> 00:33:02,120
Speaker 5: Yeah. Yeah, you know, if we thought that a measles

541
00:33:02,160 --> 00:33:06,640
Speaker 5: outbreak was going to, you know, cause a reversal on

542
00:33:07,240 --> 00:33:13,080
Speaker 5: all the vaccine skepticism, that certainly wasn't enough, having more hospitalizations,

543
00:33:13,200 --> 00:33:18,040
Speaker 5: having more burden placed on public health with these efforts,

544
00:33:18,080 --> 00:33:19,520
Speaker 5: you know, it does not appear that it's going to

545
00:33:19,600 --> 00:33:23,920
Speaker 5: change the tenor on vaccine outbreaks. We'll see if if

546
00:33:23,960 --> 00:33:27,480
Speaker 5: things get much worse, if we if it gets really severe,

547
00:33:27,680 --> 00:33:30,960
Speaker 5: if you know, the public perception will change and the

548
00:33:30,960 --> 00:33:33,760
Speaker 5: public mogle change and whether we'll see a shift. But

549
00:33:33,960 --> 00:33:36,600
Speaker 5: it does not seem that at least the initial measles

550
00:33:36,600 --> 00:33:40,040
Speaker 5: outbreaks that we're seeing our driving any change of heart

551
00:33:40,360 --> 00:33:42,520
Speaker 5: on the part of r K or you know, on

552
00:33:42,560 --> 00:33:44,240
Speaker 5: a broader level, Harry.

553
00:33:44,000 --> 00:33:47,080
Speaker 2: Is there any other area that he's you know, doing

554
00:33:47,160 --> 00:33:48,680
Speaker 2: things in that concerns you.

555
00:33:50,120 --> 00:33:51,880
Speaker 5: I mean, there's a lot of things that we're watching,

556
00:33:52,080 --> 00:33:57,840
Speaker 5: you know, the announcements of cut in research across, you know,

557
00:33:57,920 --> 00:34:01,680
Speaker 5: except with regard to chronic disease issues, and really narrowing

558
00:34:01,720 --> 00:34:06,560
Speaker 5: the focus of government funded research is really concerning for

559
00:34:06,640 --> 00:34:10,200
Speaker 5: the future of you know, drug development and just sort

560
00:34:10,239 --> 00:34:14,080
Speaker 5: of health advances. I do think that RFK has very

561
00:34:14,080 --> 00:34:17,520
Speaker 5: particular focuses and this will be a good time probably

562
00:34:17,640 --> 00:34:22,279
Speaker 5: for investment in chronic disease research, but not for anything else.

563
00:34:22,320 --> 00:34:24,440
Speaker 5: And we have a whole range of health problems, and

564
00:34:24,520 --> 00:34:27,719
Speaker 5: of course, like we're watching closely on things like is

565
00:34:27,719 --> 00:34:30,719
Speaker 5: there going to be more politicization at the FDA on

566
00:34:30,800 --> 00:34:33,680
Speaker 5: a broader range of topics, not just on on ese cigarettes,

567
00:34:33,719 --> 00:34:37,160
Speaker 5: but on reproductive health and other kind of controversial medications,

568
00:34:37,200 --> 00:34:40,080
Speaker 5: on contraception. My hope is that you know that the

569
00:34:40,160 --> 00:34:43,279
Speaker 5: FDA that as much as possible, will see you know,

570
00:34:43,320 --> 00:34:48,760
Speaker 5: clinical research and government approvals of new therapies, new drugs,

571
00:34:48,800 --> 00:34:51,719
Speaker 5: new devices and so on, you know, continue and not

572
00:34:51,800 --> 00:34:55,280
Speaker 5: have a disruption to our public health infrastructure. But I

573
00:34:55,280 --> 00:34:57,960
Speaker 5: am certainly worried that it could be a little chaotic

574
00:34:58,360 --> 00:35:01,720
Speaker 5: in the months, in the next couple of years to come.

575
00:35:02,040 --> 00:35:06,040
Speaker 2: Thanks Harry. That's Harry Nelson of Leech Tishman Nelson Hardiman,

576
00:35:06,840 --> 00:35:09,160
Speaker 2: and that's it for this edition of The Bloomberg Law Show.

577
00:35:09,520 --> 00:35:11,840
Speaker 2: Remember you can always get the latest legal news on

578
00:35:11,920 --> 00:35:16,200
Speaker 2: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,

579
00:35:16,360 --> 00:35:21,399
Speaker 2: and at www dot bloomberg dot com slash podcast Slash Law,

580
00:35:21,800 --> 00:35:24,400
Speaker 2: And remember to tune into The Bloomberg Law Show every

581
00:35:24,440 --> 00:35:28,360
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

582
00:35:28,480 --> 00:35:30,080
Speaker 2: and you're listening to Bloomberg