September 3, 2025 • 39 mins
Antitrust law expert Harry First, a professor at NYU Law School, discusses a federal judge ruling that Google doesn't have to sell its Chrome web browser in an antitrust case. Healthcare attorney Harry Nelson, a partner at Leech Tishman Nelson Hardiman, discusses the calls for HHS Secretary Robert F. Kennedy Jr to step down. June Grasso hosts.
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
In the biggest tech antitrust case in three decades, Google
avoided a breakup after a DC federal judge ruled against
the government's most severe proposals for remedies, including a forced
sale of its Chrome browser. Judge on Metmeta had already
found in August of twenty twenty four that Google illegally
(00:32):
dominated the search market by paying more than twenty six
billion dollars to Apple and other companies to make its
search engine the default option on smartphones and web browsers.
Tuesday's ruling was all about the fix, and Google will
have to make some concessions, including sharing online search data
(00:53):
with rivals and ending exclusive contracts for distribution. My guest
is antitrust law expert Harry First, a professor at NYU
Law School. So on its website, the Department of Justice says,
Department of Justice wins significant remedies against Google, but this
(01:13):
falls far short of the severe remedies that the government wanted.
How much of a setback is it for the government
in its attempt to curb the power of the biggest
tech companies?
Speaker 3 (01:26):
Well, you know, people often talk about things as being
a win win, and that's a good thing. So I
think that the judge's decision is a win win, but
not a good thing. So why is it a win
win because the Justice Department and the States gets something
and Google gets more by their not being more. So
(01:50):
I view it as win in sort of eight point
type on the government's side, and win in sort of
sixteen point type on Google. Said, so, here's what I mean.
It's not a significant victory for the Justice Department. They
did win some things, and you know, maybe that will
help bring some competition into search. But I think Google
(02:13):
won a lot by not losing very much. They get
to keep Chrome. A lot of the remedies that the
Department asked for and got even were cut down, circumscribed, diminished.
And you know, whether what the judge did will end
up changing the search business, I doubt but who knows.
(02:38):
But we've now passed the point where the question will
be will we get competition? And the question will just
be is Google complying with the decree. Of course, all
of that comes after a round of appeals, So there's
much more to this, But in terms of, you know,
the overall feeling about what we've done. I think it's,
(03:02):
you know, from a public point of view, a disappointment.
Speaker 2 (03:06):
So the big headline was zoeas will Google be forced
to sell Chrome? We'll have to divest. So Google doesn't
have to do that. Why did Judge Meta decide not
to make Google divest Chrome?
Speaker 3 (03:20):
So this is a second point that pervades Judge Meta's decision.
Rightly in a legal sense, but I think not so
correct from a policy point of view and really where
the law ought to be. So this is in many
ways a very conservative opinion. It's the judge expressing what
(03:40):
judges often express is that they understand the limits of
who they are, what the institution can do, and what
they want to do on an ongoing basis. So they're
conservative about this. And here the government's plaintiffs are asking
them to do some pretty strong restructuring of one of
(04:04):
the superstar firms in the United States. So you got
to be a little modest. Now. The judge backs up
his modesty with a lot of quotations from the Court
of Appeals and recently from the Supreme Court in a
different anti trust case opinion written by Justice Gorsuch, which
(04:24):
counsels let's be careful a little bit. So the ask
that Chrome be divested structural relief is something that the
DC Circuit itself. Remember, Judge Meta is a district court
judge overseen by a Court of Appeals from the DC
Circuit District of Columbia Circuit, so he's required to follow
(04:47):
the law from that circuit. The law from that circuit
on remedies is actually pretty conservative and cautious, and that
stems from actually the Microsoft case, which is much the
template for the complaint that the government filed and for
the government's theories. So you know, they said, well, when
(05:09):
it comes to structural relief, restructuring, reorganizing a company, you
really need some strong proof before you do that. You
need to watch out. And so he took those admonitions
to heart and just didn't find enough to overcome that
sort of a presumption that you know, you don't do
(05:30):
this unless you really have to do it for effective relief.
And this then goes to the second part that maybe
the government didn't make an effective enough case for divesting
Chrome and maybe made it seem too easy. So stuck
with all of that, he backed away from it.
Speaker 2 (05:50):
How much did AI play into his decision, So that's.
Speaker 3 (05:55):
Maybe the real lead which we're now burying. I think
his decision is all about it, frankly, and I think
that he's betting, and many in the industry, and if
you listen to some of the news shows, are just
simply betting that AI is going to replace search as
we know it with something else that's not search as
(06:17):
we know it, or maybe as you and I know it,
but just simply getting information, and that Google Search, that product,
no matter what he does in this opinion, is going
to be eclipsed by some AI product, and I think
that that permeates. I think that he views generative AI
(06:39):
as coming to the rescue of competition.
Speaker 2 (06:42):
Yeah. Some say it's already eroding Google's events.
Speaker 1 (06:46):
Yea.
Speaker 3 (06:46):
The data seemed to show. He mentions this in his
opinion that searches on Safari have decreased. You know, people
seem to be going directly to you know, chat, GPT
or Perplexity or some of these other AI assistant things
and just getting information that way. And this is the
(07:08):
destructive force of innovation, as the economist Joseph Schumpeter talked
about many years ago. So maybe he's right, and you
know that may mean that sort of didn't matter what
he did so long as AI lives. But of course
the worry is that we'll just replicate the current structure
(07:29):
of the tech platform. Superstar firms will just control AI,
and we won't have moved to new competition, but we'll
have a different product.
Speaker 2 (07:40):
He's ordering Google to share data with rivals to open
up competition in online search. Google has to share some
of the data with competitors, but not some of its
most important data.
Speaker 3 (07:52):
Would you say, well, here again, it's hard to say
exactly what our important data. You could say all of
the data are important, the more the more. But you know,
this particularly involves the search index, which is something that
Google has done really well, and the government in some
ways didn't ask for as much as it could, which
(08:14):
would have been a license to the index itself. What
they wanted is some help with the data so competitors
could build an index. And even with that, the judge
cut down the kinds of data that will be required
to be disclosed, and to me, even more importantly, the
(08:35):
timing of the disclosure. So for some of these data
it's a one time snapshot, which strikes me. As you know,
the judge calls at a kickstart for competition. Yeah, like
a kick in the rear. I don't know, you know,
a one time thing for some very important parts of
some basic information to help them put together a better
(08:57):
index of the web. There's an awful lot of information
out there, and indexing it is critical for an effective
search engine. And you know, when it comes to sort
of this user side data to click and query. You
know what we do when we get free search is
create data that's worth a heck of a lot of
(09:19):
money for which we don't get paid, we being you
and me and all the other users. But these data
here Again, the judge cuts down the request, gives some
amount of the request, and then sort of puts on
some limits yet to be decided about how often this
(09:40):
will be disclosed more than once. Now it's not just
a snapshot, but the cap yet to be determined by
this technical committee that the decree is going to set up.
So I don't know, it's you know, it's hard for
me to say exactly, you know, will this enable competitors
real to really get an effect of competing search engine
(10:03):
or will it not quite be enough? And in some
ways this goes to what I've always viewed as the
underlying problem with these decrees is a judge trying to
say what competitors need to succeed, instead of a judge saying,
don't ask me, just come back, you know, Google, just
come back and let me know whether there's competition or not.
(10:26):
And if there isn't, we're going to have to do
something more about it. You know, trying for judges or
even the Justice Department, which apparently at least is still
made up of some lawyers. You know, trying to design
these remedies is tough, and you can feel it with
what the judge is written in this opinion. It's hard
and trying to figure out what the effect is going
(10:48):
to be. And he says at the beginning, you know,
I don't have a crystal ball. Other judges have used
that worry as well when being asked to predict effects
in future markets.
Speaker 2 (11:00):
Coming up next on the Bloomberg Lawn Show, I'll continue
this conversation with NYU law professor Harry First. Google has
already said it's going to appeal. Will judge Meta's decisions
stand up? I'm June Grosso. When you're listening to Bloomberg,
a federal judge ordered a shake up of Google's search
engine in an attempt to curb the power of an
(11:22):
illegal monopoly, while rejecting the government's attempt to break up
the company and impose other restraints. The two hundred twenty
six page decision made by DC Federal Judge on Meta
will likely ripple across the technological landscape at a time
when the industry is being reshaped by artificial intelligence, as
(11:45):
companies like Chat, GPT and Perplexity try to upend Google's
long held position as the Internet's main gateway. Those innovations
and competition reshape the judge's approach to the remedies in
the nearly five year old anti trust case, Judge Meta wrote,
unlike the typical case, where the court's job is to
(12:07):
resolve a dispute based on historic facts, here the judge
is asked to gaze into a crystal ball and look
to the future. Not exactly a judge's forte. I've been
talking to anti trust law professor Harry First of NYU
Law School. So, Harry, the judge is directing both sides
to come back by September tenth with a new remedy
(12:29):
proposal consistent with his ruling or file a status report
outlining any disagreements. Do you expect anything real from that?
Speaker 3 (12:37):
I think what he's looking for is he's got to
write this down. He's got to enter a decree that
has definitions, that has specific language that's understandable. I mean,
the first challenge is figuring out sort of what to
accept in the party's proposals. But the second challenge is
(12:57):
the drafting of that decree. I think that's what he's
looking for. Next, you know, give me your actual proposed decrees.
The parties have done that, they have proposed final judgments,
but now they've got to take here's what he's ordered,
and I think he wants language now. He also hinted
at some fallback potential remedies. One of the problems I
(13:22):
think that he faced, and it surfaced in a question
that he ended up posing on the record, which is
pretty rare. You know, tell me why you ask for
this particular thing, Google, please explain it. And he had
a final hearing. But as he sits down to start
to write the opinion, he he's thinking, I've got an
interesting different idea here that no one's proposed to me.
(13:46):
Maybe you should think about it. So there's sort of
some version of like conditionality maybe on payments for you know,
not allowing certain kinds of payments for you said, you
can make any kinds of payments. But maybe there's a
fallback position. Maybe they had a fallback position for Chrome
that they might want to articulate now, you know, just
(14:07):
they said, let's get rid of it, but maybe there's
some fallback. So this may be an opportunity also for
the parties to propose, in addition to clarifying language, some
modifications for what he's imposed. So maybe that's that will
also go on as well. So who said this, Yogi Barret.
It's not over till it's over, And it was Yogi
(14:27):
Barrett right, well, allegedly apparently he never said anything that
he's supposed to have said, which is another thing.
Speaker 2 (14:33):
Yeah, we'll discuss that next time.
Speaker 1 (14:35):
Now.
Speaker 2 (14:36):
As far as pay to play, the judge said that
this exclusive deal that Google had with Apple where it
pays it something like twenty billion a year to be
of the search default on iPhones, et cetera, So they
can still do that, but it just can't be exclusive.
Speaker 3 (14:52):
They can pay for the fault, but can't keep others
from you know, putting another search bar or who knows what,
but they can still pay for the fault, so they
can pay anyone for having the default. The faults were
never exclusive. I mean they were exclusives. So you know,
(15:12):
you can only out of the box if you, you know,
were original equipment manufacturer, handset manufacture, you know, an exclusive
to put the Google search bar on if you wanted
other programs, or you know, inexclusive. If you have an exclusive,
you get revenue shares things like that. So maybe not that,
(15:32):
but he basically said you can pay for the faults,
which the testimony from the behavioral economist was that's the
factual equivalent of a near exclusive because people don't change
from defaults very often. You know, it's an old behavioral
habit with which we're very familiar and with which Google's familiar.
(15:55):
So the judge did suggest he did this in a footnote.
Speaker 2 (15:58):
You read the footnotes too, Harry, I'm impressed.
Speaker 3 (16:02):
Hey, I'm a not quite reformed law professor, and we
always know you put the good stuff in the footnotes.
But anyway, at least that's our version. But there is
a footnote. It's not fourteen. And he said he could
revisit the idea of a ban on paying for default
but allowing to pay for distribution. So you could say, okay,
(16:26):
if you distribute Google Search, that's fine, we'll pay you,
but we can't pay you to make it the default
search engine. Now me said, nobody's sort of raised this. Hello,
No one raises so I don't know the effect. Hello,
So maybe we'll get something. You could wonder whether that
makes any difference, frankly, because once you distribute it, given
(16:48):
the strength of this default in most people's experience, it
may not make a difference whether you label a default
or not. If you get you know, the Google win,
you know on your phone, particularly where it's very strong
because you want to use Google Search, and whether it
was a default or not, or whether it's a fault
(17:09):
in your Chrome browser, which it's going to be, you'll
use it, and you know the payment won't be for
requiring it to be a default, say on the iPhone.
But you know, Apple may still make it a default
unless they're offered a better alternative, which the testimony. The
testimony from Eddie Q, the Apple guy involved, was that
(17:32):
he wouldn't buy being for any amount of money. Ever,
apparently so he needs something better, and is he going
to take away Google Search full from Apple users? I
doubt it. So there might be some modifications, but at
the moment Google can still pay for default. And here
again this was the judge's concern for the impact and
(17:54):
being modest, sort of the impact on you could say,
the whole eCos system of stopping those payments and you know,
maybe wrecking Firefox, you know, go, you know, even you
seem to be concerned about wrecking Apple. I didn't know
that Apple was in such bad shape. But there we are.
Speaker 2 (18:15):
Well, the government said it's considering its next steps. I mean,
I don't know what next steps it can take besides appeal.
But Google has previously said it's going to appeal. So
we assume we'll go to the Supreme Court. Right, It
could be years, then years and years before this gets implemented.
Speaker 3 (18:32):
Yeah, it might not go to the Supreme Court. Court
doesn't have to take it. Who you know, who knows
the court didn't take Microsoft for example, So yeah, maybe, yes,
maybe no. But the years is right. This will be
a while yet, and we haven't seen but could see
political interference with this. We really don't know. So there's
(18:55):
a lot between now and then, I guess. But the
liability decision, which he made more than a year ago,
I guess is that the whole bundle is subject to
appeal once a final judgment is entered, which he has
not done yet. So once that's done, then the parties
(19:16):
have you know, I think, sixty days to file their
notices of appeal and then the process starts to play
out in the Court of Appeals, you know, unless they
start some sort of settlement negotiations or something.
Speaker 2 (19:32):
I mean, do you think that his opinion is conservative
enough to survive the DC Court of Appeals?
Speaker 3 (19:39):
So he did a lot to try to survive review
by the Court of Appeals. I mean, he relied quite
heavily on you know, key decisions, particularly the Microsoft remedy decisions.
And he also, oh, by the way, bolstered one of
the potential weaknesses in the liability decision while he was
(20:01):
at it. So I think it's not perfectly bulletproof the
aspect of letting AI companies share in some of these data.
If I were Google, I would be hitting on that
whether that was you know, not warranted given as he
started out by saying there was nothing at the trial
(20:21):
about AI and there are ways of casting what he
did as maybe not within the balance of what the
goal was in the trial. So there's some potential issue there,
and I think it is certainly possible. I mean, I
assume Google will pursue that, So I think it's a
pretty you know, I mean, it could be more conservative.
I guess he could have just given Google what Google wanted.
(20:45):
But it's a carefully drawn opinion, and you know, time
after time he sort of knocks the government plaintiffs back
a bit by saying, you know, you've overreached, you're asking
for too much. You know, we need to be modest, etc.
Speaker 1 (20:59):
Etc.
Speaker 2 (21:00):
Harry the trial later this month to determine remedies in
a different case brought by the Justice Department, where a
judge found that Google holds illegal monopolies in online advertising technology.
How does that threaten Google? Is it more of.
Speaker 3 (21:19):
The same, Well, it is a little different. There's some
a bit of remedy on advertising, but not very much
because it's so much directed at effect on the search
engine market so directly, not so much indirectly. I think
(21:39):
we have to see it because from the beginning, the
Justice Department has asked for structural relief to break apart
the way Google does advertising, you know, to break it
up in fact, and have them to vest certain parts
of its advertising stack as they So this opinion is
(22:02):
very skeptical about this structural relief said, you know, if
nothing else works, then that may be possible. But the
ad Tech case may be a case where you know,
it's been directed at structural relief, so that may be okay.
Another aspect is how much money Google has made from advertising,
so it reinforces the notion that this has been a
(22:25):
monopolized market, so you know, that may have some effect.
It's important to note that that case is in a
different federal circuit. It's not in the DC circuit, and
it may be that the Justice Department chose to file
there for a number of reasons, but one of it
may be that on remedy wanting a structural remedy, the
(22:46):
DC circuit is a bad place to bring a case
like that given Microsoft, so maybe they were trying to
avoid that by being in a different circuit, in the
fourth circuit. So we've yet to see. I think she's
been holding up on this spending meta's opinion on remedy.
But you know they are fencing along on remedies hearing
(23:07):
in that case, so that should happen relatively soon.
Speaker 2 (23:12):
Yes, I googled it and the trial is scheduled to
begin on September twenty second. Thanks so much, Harry. As always,
that's Professor Harry First of NYU Law School, coming up
next on the Bloomberg Law Show. More than one thousand
HHS employees are calling on rfk Junior to step down.
(23:33):
I'm June Grosso and you're listening to Bloomberg today. More
than a thousand current and former employees across the Department
of Health and Human Services signed a letter calling for
Health Secretary Robert F. Kennedy Junior's resignation, accusing him of
endangering the health of Americans. The new letter comes just
(23:55):
two days after nine former directors and acting directors of
the Centers for Disease Control and Prevention wrote an op
ed also condemning Kennedy for endangering every American's health. Doctor
Richard Besser was one of the signees.
Speaker 1 (24:12):
We have grave concerns that the Secretary of Health is
endangering the health of people across our nation by not
letting the agency do its job, not following the science
and putting out guidance around COVID vaccine that is leading
to confusion.
Speaker 2 (24:26):
But it appears Kennedy is not listening. He wrote in
a Wall Street Journal op ed published today that his
changes are restoring trust in the CDC that was lost
during the COVID pandemic. That's something he said before.
Speaker 4 (24:42):
I'm very confident in the political staff that we have
down there now that they're going to be able to
accomplish that and ensure the confident functionality of that agency.
Speaker 2 (24:54):
My guest is Harry Nelson, a partner at Leech Tishman
Nelson Hardiman explain some of the concerns that healthcare professionals
have about Kennedy.
Speaker 1 (25:05):
Yeah.
Speaker 5 (25:05):
I think first and foremost what they're sounding the alarm
over is the politicization of public health itself. It just
seems that, you know that we're kind of in a
battle where science is losing ground over ideology in steering
health policy. So, you know, I think that op ed
(25:26):
was intended to be as public a form of rebuke
for RSK and the way he's reshaping the CDC and
public health policy as could be. You know, it was
the vaccines left week or two, but it's going to
move on to you know, the CONTI conversation over environmental
causes of autism and all the ways in which he
(25:47):
has really become, you know, very politicized and moving away
from science and kind of driving our public health policy.
Speaker 2 (25:54):
He's canceled medical research how much and in what areas well?
Speaker 5 (25:59):
I mean the cuts medical research have mostly come through
National Institute of Health NIH grants, over a billion dollars
in NIH grant cuts across different institutions, and you know,
just a massive, you know, reduction in kind of established
leadership in positions that were previously not considered political, from
(26:20):
the leadership of CDC itself, removing Susan Monarez after just
a few weeks on the job, to completely clearing out
the Advisory Committee on Vaccines, and so he's just done
a wholesale shift on public policy in ways that will
be experiencing the ramifications up for years to come. It's
not decades.
Speaker 2 (26:40):
What probably prompted this, the final straw, if you want
to call it, is the attempt to fire Manarez. So
she was just in there for a month. Didn't they
know what she stood for? What happened?
Speaker 5 (26:54):
You know? I think essentially she was really just following
sort of standard protocol at the CDC, and it was
clear that there was tension escalating as there was a
push from RFK and the people around him to narrow
federal COVID vaccine recommendations, to get rid of the standing
Advisory Committee, to start really changing the Vaccines for Children program,
(27:19):
And essentially it became clear that she was standing in
the way of some of the very aggressive moves that
RFK and as people wanted to make.
Speaker 2 (27:28):
RFK promised he wouldn't take vaccines away from anyone, but
tell us what happened with this guidance, the recent guidance,
and what it means for people who not in those
categories but want to get vaccines.
Speaker 5 (27:42):
I mean, so the main thing was that, you know,
the SDA essentially planned the break you could say on
sort of broad access to COVID boosters. Vaccines will remain
available and covered for sixty five and over and for
younger people who have a specific risk factor, but in
general are not going to be available for people under
(28:02):
sixty five without some specific risk factor, and of course
it's an issue of access. It now appears that there
are a number of states in which is going to
be very difficult to get vaccines, and also the cost
of vaccines because the change in health policy is going
to mean that the insurance companies will not be doing
any cost sharing on them, so these vaccines will be
(28:24):
much more expensive. It's clear that there's going to be
a difficult time for people who are wanting to get vaccinated.
And you know, the real question that will come likely
at the end of the next flu season that's not
yet here, is what the death rate, what the hospitalizations
will be. I think a lot of people will be
watching closely to see what the net impact of these
(28:47):
changes is going to be.
Speaker 2 (28:48):
So is that for the COVID vaccine? What about flu shots?
Speaker 5 (28:52):
This was specifically a COVID policy, but it's clear that
there are going to be significant limits on the flu
vaccine as well. But this specific policy was update to
eligibility for the various COVID nineteen you know vaccines you'll
remember as Pfizer, Maderna, and Novovac. It's certainly going to
have a broader effect on access to other vaccines, just
(29:14):
because so many pharmacies and insurance companies are taking their
leads from COVID policy for purposes of broader like influenza
B and other flu related shots.
Speaker 2 (29:25):
Is there anything that can be done or is it
just a question of you know, Kennedy's there and that's
it unless he's fired for some reason.
Speaker 5 (29:33):
Obviously, we're going to see lawsuits undoubtedly and challenges to
the firing of CDC director essentially, you know, questioning whether
there's a violation of separation of powers here and whether
there's any kind of retaliatory aspect to this. There certainly
is the possibility that states could start enacting their own
(29:54):
coverage mandates. We already see California and New York Massachusetts
are kind of moving in that direct and Congress could
step in here, although it doesn't seem like that is
likely to happen. The real remedy here, I think, is
if the American public are upset about this. It's not
only in the courts or in Congress. It's also just
by a public outcry to make it clear to President
(30:18):
Trump and his administration that this is really, you know,
a high priority issue that's concerning people. I do think
there are political remedies that are legal remedies, but the
train that's sort of leaving the station, then if they're
going to happen. We need to see some action, you know, eminently.
Speaker 2 (30:33):
In this up ed, the CDC directors called on Congress
to exercise oversight authority over the Department of Health and
Human Services. What can Congress do if they wanted to?
Speaker 5 (30:47):
Congress certainly could hold hearings, They could start to subpoena
you know, administration officials. They could certainly exercise you know,
authority to restore funding to state and local health agencies
that's been cut. I mean, I think there is quite
a bit that they could do. I think investigating holding hearings,
you know, demanding accountability from RFK, from the people reporting
(31:10):
up to him, and filling some of the funding gaps
are the obvious things that they could do. Kennedy, it
doesn't seem that Congress is at this moment demanding the
kind of answers on everything from the vaccine policy to
the leadership changes and the funding shifts that you know,
people concerned with public health might hope that they would.
Speaker 2 (31:29):
Well, Kennedy's going to appear on Thursday, I believe, so
maybe we'll see some of that. But you know, Bill Cassidy,
and he was the Louisiana Republican senator who delivered the
key vote to confirm Kennedy, and I remember he said,
I'm something like I'm trusting you on vaccines. He called
on HHS to indefinitely postpone it's Vaccine Advisory Committee meeting
(31:54):
on September eighteenth. That's not a long term solution.
Speaker 5 (31:58):
It's justesting, you know, Cenator Casey, who was as chair
of the Senate Health Committee and as a doctor with
someone whose vote was clearly pivotal in the confirmation, seems
to be trying to walk a cautious line here asking
for oversight, transparency, postponement on some of these critical vaccine
advisory you know meetings. He's definitely an important voice here.
(32:19):
What's been disappointing to me has been that, you know,
RFK is basically just refusing to dress, you know, square
on the issues. He seems to be just interested in
deflecting blame and you know, kind of trying to stay
on a higher level message about problems at the CDC
and a need for strong leadership, but without really getting
(32:40):
into the nuts and bolt of vaccine policy. And frankly,
there's no way to see the actions being taken now
as consistent with his testimony during the confirmation hearing.
Speaker 2 (32:51):
He is suggesting Silicon Valley investor and entrepreneur Jim O'Neill
is a new acting CDC director. Tell us about him.
Speaker 5 (33:01):
Yeah, I think people are worried that Jim O'Neill is,
you know, is not coming from the world of public
health and science. O'Neill, first of all, was a deputy
to RFK already and seems to be aligned with his
vision that he's just rebuilding the CDC. He's not expected
to put any challenge forward, you know, in the name
(33:23):
of science or in the name of public health. Is
likely that he's just going to be, you know, a
mouthpiece for RFK and for all the changes that are
already being made. So I don't think anyone who's concerned
about what's going on is that all reassured by O'Neill's selection.
Speaker 2 (33:37):
Does the CDC director have to be confirmed by the Senate?
Speaker 5 (33:40):
Yeah, the CDC director is a confirmed position. Yeah. I
think a lot of it will flow from how much
feedback the senators are getting from their constituents. You know.
It certainly is an opportunity to sort of take the
pulse of where America is standing on these issues. My
understanding is that he can serve six or seven months
without a formal confirmation hearing, so we may see this
(34:01):
issue pushed off until, you know, early twenty twenty six.
Speaker 2 (34:05):
So Trump said he would allow RFK Junior to go
wild on healthcare, and he certainly has done that. Are
there any restrictions on what RFK Junior can do.
Speaker 5 (34:18):
It's hard to see where Trump is having misgivings. I mean,
you know, there's certainly are areas where they were aligned.
We've seen, you know, President Trump posting on true Social
urging pharmaceuticals to release more data and sort of, you know,
claiming that there's some kind of hidden story about vaccine efficacy.
Speaker 1 (34:38):
You know.
Speaker 5 (34:38):
I think it's funny because President Trump has taken pride
at different points on Operation Warp Speed in the extent
to which his administration brought the vaccines out in the
middle of COVID, when, by the way, we had in
the course of two years we look at the data,
now over a million Americans dead in the first two
years of COVID. I think President Trump is largely distancing
(34:59):
himself from RFK specific actions and still trying to protect
his vaccine legacy. I would think that there's probably some
discomfort with the more aggressive aspects of RFK, but we
have yet to see like a real action to sort
of rein him.
Speaker 2 (35:15):
In Well, what was surprising to me is that they
had a gallup pole in July and Kennedy had higher
favorability ratings than Trump and the vice president and others.
Speaker 5 (35:28):
Interesting. He's obviously a very polarizing figure. I mean, make
America Healthy Again campaign has a lot of resonance. He's clearly,
you know, someone who for people who were excited about
what RK presented, he's delivering right, you know, whereas President
Trump is definitely having to walk a line sort of
affecting how people view him. But for people who buy
(35:49):
into the public health agenda that's being carried out in
this administration, to them, RFK the hero.
Speaker 2 (35:54):
Okay, so we talk about the negative things, is he
doing anything positive to make America healthy?
Speaker 5 (36:00):
There definitely are some good things. He's calling attention to
big food and to you know, the need for a
sort of new look at nutrition as a driver of health.
You know, the people who support him see him as
a reformer fighting against entrenched institutions, and I think MAHA
make American Health against speaks to people who are frustrated
(36:20):
with public health bureaucracy. But the problem is that when
you look at the op ed piece that came out,
for example, I mean the other side has a strong
scientific grounding to say that he's taking risks with American
health buy things like dismantling vaccine infrastructure. So there are
things that are positive. He's calling attention to chronic disease.
He's doing, you know, good things to sort of try
(36:43):
to create a populist focus on chronic illness in America
and the way in which American healthcare could stand to
be changed and shake it up. But I think we're
seeing that he's also throwing out the baby with the
bathwater on things like vaccine policy that I expect we'll
see is really keeping Americans alive and out of the
hospital in much larger numbers than without it.
Speaker 2 (37:06):
How likely is it that during the winter months we'll
see a resurgence of COVID without these vaccines.
Speaker 5 (37:15):
I think that's a critical question, and I think will
be watching. Obviously nobody is hoping for bad news, but
I think people are going to be watching very very
closely for the number of hospitalizations and the number of deaths.
And I do think that clearly by narrowing vaccine eligibility
(37:36):
to the sixty five and older group and to people
with a high risk condition, there's a bet being made
that those populations are the most at risk and have
the biggest central benefit. And on the other side, is this,
you know, not backed up by science, that there's negative
effects of vaccines for healthier, younger Americans. And so I
(37:59):
think everyone's should be watching the numbers months by month
as they get released closely this season, and certainly we
should all be praying for a mild flu season, you know,
not to have deadly variants of COVID, you know all
the other flues that are out there, bird flues. You know,
we should obviously be hoping for the best, but we're
definitely not coming into the season in a state of
(38:21):
high preparedness. If the opposite happens, and if we have
something deadly, well, as.
Speaker 2 (38:26):
You say, let's hope not. Thanks so much, Harry. That's
healthcare attorney Harry Nelson of Leech Tishman Nelson Hardiman. And
that's it for this edition of the Bloomberg Law Show.
Remember you can always get the latest legal news on
our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot bloomberg dot com, slash podcast, slash Law,
(38:48):
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
In the biggest tech antitrust case in three decades, Google
avoided a breakup after a DC federal judge ruled against
the government's most severe proposals for remedies, including a forced
sale of its Chrome browser. Judge on Metmeta had already
found in August of twenty twenty four that Google illegally
(00:32):
dominated the search market by paying more than twenty six
billion dollars to Apple and other companies to make its
search engine the default option on smartphones and web browsers.
Tuesday's ruling was all about the fix, and Google will
have to make some concessions, including sharing online search data
(00:53):
with rivals and ending exclusive contracts for distribution. My guest
is antitrust law expert Harry First, a professor at NYU
Law School. So on its website, the Department of Justice says,
Department of Justice wins significant remedies against Google, but this
(01:13):
falls far short of the severe remedies that the government wanted.
How much of a setback is it for the government
in its attempt to curb the power of the biggest
tech companies?
Speaker 3 (01:26):
Well, you know, people often talk about things as being
a win win, and that's a good thing. So I
think that the judge's decision is a win win, but
not a good thing. So why is it a win
win because the Justice Department and the States gets something
and Google gets more by their not being more. So
(01:50):
I view it as win in sort of eight point
type on the government's side, and win in sort of
sixteen point type on Google. Said, so, here's what I mean.
It's not a significant victory for the Justice Department. They
did win some things, and you know, maybe that will
help bring some competition into search. But I think Google
(02:13):
won a lot by not losing very much. They get
to keep Chrome. A lot of the remedies that the
Department asked for and got even were cut down, circumscribed, diminished.
And you know, whether what the judge did will end
up changing the search business, I doubt but who knows.
(02:38):
But we've now passed the point where the question will
be will we get competition? And the question will just
be is Google complying with the decree. Of course, all
of that comes after a round of appeals, So there's
much more to this, But in terms of, you know,
the overall feeling about what we've done. I think it's,
(03:02):
you know, from a public point of view, a disappointment.
Speaker 2 (03:06):
So the big headline was zoeas will Google be forced
to sell Chrome? We'll have to divest. So Google doesn't
have to do that. Why did Judge Meta decide not
to make Google divest Chrome?
Speaker 3 (03:20):
So this is a second point that pervades Judge Meta's decision.
Rightly in a legal sense, but I think not so
correct from a policy point of view and really where
the law ought to be. So this is in many
ways a very conservative opinion. It's the judge expressing what
(03:40):
judges often express is that they understand the limits of
who they are, what the institution can do, and what
they want to do on an ongoing basis. So they're
conservative about this. And here the government's plaintiffs are asking
them to do some pretty strong restructuring of one of
(04:04):
the superstar firms in the United States. So you got
to be a little modest. Now. The judge backs up
his modesty with a lot of quotations from the Court
of Appeals and recently from the Supreme Court in a
different anti trust case opinion written by Justice Gorsuch, which
(04:24):
counsels let's be careful a little bit. So the ask
that Chrome be divested structural relief is something that the
DC Circuit itself. Remember, Judge Meta is a district court
judge overseen by a Court of Appeals from the DC
Circuit District of Columbia Circuit, so he's required to follow
(04:47):
the law from that circuit. The law from that circuit
on remedies is actually pretty conservative and cautious, and that
stems from actually the Microsoft case, which is much the
template for the complaint that the government filed and for
the government's theories. So you know, they said, well, when
(05:09):
it comes to structural relief, restructuring, reorganizing a company, you
really need some strong proof before you do that. You
need to watch out. And so he took those admonitions
to heart and just didn't find enough to overcome that
sort of a presumption that you know, you don't do
(05:30):
this unless you really have to do it for effective relief.
And this then goes to the second part that maybe
the government didn't make an effective enough case for divesting
Chrome and maybe made it seem too easy. So stuck
with all of that, he backed away from it.
Speaker 2 (05:50):
How much did AI play into his decision, So that's.
Speaker 3 (05:55):
Maybe the real lead which we're now burying. I think
his decision is all about it, frankly, and I think
that he's betting, and many in the industry, and if
you listen to some of the news shows, are just
simply betting that AI is going to replace search as
we know it with something else that's not search as
(06:17):
we know it, or maybe as you and I know it,
but just simply getting information, and that Google Search, that product,
no matter what he does in this opinion, is going
to be eclipsed by some AI product, and I think
that that permeates. I think that he views generative AI
(06:39):
as coming to the rescue of competition.
Speaker 2 (06:42):
Yeah. Some say it's already eroding Google's events.
Speaker 1 (06:46):
Yea.
Speaker 3 (06:46):
The data seemed to show. He mentions this in his
opinion that searches on Safari have decreased. You know, people
seem to be going directly to you know, chat, GPT
or Perplexity or some of these other AI assistant things
and just getting information that way. And this is the
(07:08):
destructive force of innovation, as the economist Joseph Schumpeter talked
about many years ago. So maybe he's right, and you
know that may mean that sort of didn't matter what
he did so long as AI lives. But of course
the worry is that we'll just replicate the current structure
(07:29):
of the tech platform. Superstar firms will just control AI,
and we won't have moved to new competition, but we'll
have a different product.
Speaker 2 (07:40):
He's ordering Google to share data with rivals to open
up competition in online search. Google has to share some
of the data with competitors, but not some of its
most important data.
Speaker 3 (07:52):
Would you say, well, here again, it's hard to say
exactly what our important data. You could say all of
the data are important, the more the more. But you know,
this particularly involves the search index, which is something that
Google has done really well, and the government in some
ways didn't ask for as much as it could, which
(08:14):
would have been a license to the index itself. What
they wanted is some help with the data so competitors
could build an index. And even with that, the judge
cut down the kinds of data that will be required
to be disclosed, and to me, even more importantly, the
(08:35):
timing of the disclosure. So for some of these data
it's a one time snapshot, which strikes me. As you know,
the judge calls at a kickstart for competition. Yeah, like
a kick in the rear. I don't know, you know,
a one time thing for some very important parts of
some basic information to help them put together a better
(08:57):
index of the web. There's an awful lot of information
out there, and indexing it is critical for an effective
search engine. And you know, when it comes to sort
of this user side data to click and query. You
know what we do when we get free search is
create data that's worth a heck of a lot of
(09:19):
money for which we don't get paid, we being you
and me and all the other users. But these data
here Again, the judge cuts down the request, gives some
amount of the request, and then sort of puts on
some limits yet to be decided about how often this
(09:40):
will be disclosed more than once. Now it's not just
a snapshot, but the cap yet to be determined by
this technical committee that the decree is going to set up.
So I don't know, it's you know, it's hard for
me to say exactly, you know, will this enable competitors
real to really get an effect of competing search engine
(10:03):
or will it not quite be enough? And in some
ways this goes to what I've always viewed as the
underlying problem with these decrees is a judge trying to
say what competitors need to succeed, instead of a judge saying,
don't ask me, just come back, you know, Google, just
come back and let me know whether there's competition or not.
(10:26):
And if there isn't, we're going to have to do
something more about it. You know, trying for judges or
even the Justice Department, which apparently at least is still
made up of some lawyers. You know, trying to design
these remedies is tough, and you can feel it with
what the judge is written in this opinion. It's hard
and trying to figure out what the effect is going
(10:48):
to be. And he says at the beginning, you know,
I don't have a crystal ball. Other judges have used
that worry as well when being asked to predict effects
in future markets.
Speaker 2 (11:00):
Coming up next on the Bloomberg Lawn Show, I'll continue
this conversation with NYU law professor Harry First. Google has
already said it's going to appeal. Will judge Meta's decisions
stand up? I'm June Grosso. When you're listening to Bloomberg,
a federal judge ordered a shake up of Google's search
engine in an attempt to curb the power of an
(11:22):
illegal monopoly, while rejecting the government's attempt to break up
the company and impose other restraints. The two hundred twenty
six page decision made by DC Federal Judge on Meta
will likely ripple across the technological landscape at a time
when the industry is being reshaped by artificial intelligence, as
(11:45):
companies like Chat, GPT and Perplexity try to upend Google's
long held position as the Internet's main gateway. Those innovations
and competition reshape the judge's approach to the remedies in
the nearly five year old anti trust case, Judge Meta wrote,
unlike the typical case, where the court's job is to
(12:07):
resolve a dispute based on historic facts, here the judge
is asked to gaze into a crystal ball and look
to the future. Not exactly a judge's forte. I've been
talking to anti trust law professor Harry First of NYU
Law School. So, Harry, the judge is directing both sides
to come back by September tenth with a new remedy
(12:29):
proposal consistent with his ruling or file a status report
outlining any disagreements. Do you expect anything real from that?
Speaker 3 (12:37):
I think what he's looking for is he's got to
write this down. He's got to enter a decree that
has definitions, that has specific language that's understandable. I mean,
the first challenge is figuring out sort of what to
accept in the party's proposals. But the second challenge is
(12:57):
the drafting of that decree. I think that's what he's
looking for. Next, you know, give me your actual proposed decrees.
The parties have done that, they have proposed final judgments,
but now they've got to take here's what he's ordered,
and I think he wants language now. He also hinted
at some fallback potential remedies. One of the problems I
(13:22):
think that he faced, and it surfaced in a question
that he ended up posing on the record, which is
pretty rare. You know, tell me why you ask for
this particular thing, Google, please explain it. And he had
a final hearing. But as he sits down to start
to write the opinion, he he's thinking, I've got an
interesting different idea here that no one's proposed to me.
(13:46):
Maybe you should think about it. So there's sort of
some version of like conditionality maybe on payments for you know,
not allowing certain kinds of payments for you said, you
can make any kinds of payments. But maybe there's a
fallback position. Maybe they had a fallback position for Chrome
that they might want to articulate now, you know, just
(14:07):
they said, let's get rid of it, but maybe there's
some fallback. So this may be an opportunity also for
the parties to propose, in addition to clarifying language, some
modifications for what he's imposed. So maybe that's that will
also go on as well. So who said this, Yogi Barret.
It's not over till it's over, And it was Yogi
(14:27):
Barrett right, well, allegedly apparently he never said anything that
he's supposed to have said, which is another thing.
Speaker 2 (14:33):
Yeah, we'll discuss that next time.
Speaker 1 (14:35):
Now.
Speaker 2 (14:36):
As far as pay to play, the judge said that
this exclusive deal that Google had with Apple where it
pays it something like twenty billion a year to be
of the search default on iPhones, et cetera, So they
can still do that, but it just can't be exclusive.
Speaker 3 (14:52):
They can pay for the fault, but can't keep others
from you know, putting another search bar or who knows what,
but they can still pay for the fault, so they
can pay anyone for having the default. The faults were
never exclusive. I mean they were exclusives. So you know,
(15:12):
you can only out of the box if you, you know,
were original equipment manufacturer, handset manufacture, you know, an exclusive
to put the Google search bar on if you wanted
other programs, or you know, inexclusive. If you have an exclusive,
you get revenue shares things like that. So maybe not that,
(15:32):
but he basically said you can pay for the faults,
which the testimony from the behavioral economist was that's the
factual equivalent of a near exclusive because people don't change
from defaults very often. You know, it's an old behavioral
habit with which we're very familiar and with which Google's familiar.
(15:55):
So the judge did suggest he did this in a footnote.
Speaker 2 (15:58):
You read the footnotes too, Harry, I'm impressed.
Speaker 3 (16:02):
Hey, I'm a not quite reformed law professor, and we
always know you put the good stuff in the footnotes.
But anyway, at least that's our version. But there is
a footnote. It's not fourteen. And he said he could
revisit the idea of a ban on paying for default
but allowing to pay for distribution. So you could say, okay,
(16:26):
if you distribute Google Search, that's fine, we'll pay you,
but we can't pay you to make it the default
search engine. Now me said, nobody's sort of raised this. Hello,
No one raises so I don't know the effect. Hello,
So maybe we'll get something. You could wonder whether that
makes any difference, frankly, because once you distribute it, given
(16:48):
the strength of this default in most people's experience, it
may not make a difference whether you label a default
or not. If you get you know, the Google win,
you know on your phone, particularly where it's very strong
because you want to use Google Search, and whether it
was a default or not, or whether it's a fault
(17:09):
in your Chrome browser, which it's going to be, you'll
use it, and you know the payment won't be for
requiring it to be a default, say on the iPhone.
But you know, Apple may still make it a default
unless they're offered a better alternative, which the testimony. The
testimony from Eddie Q, the Apple guy involved, was that
(17:32):
he wouldn't buy being for any amount of money. Ever,
apparently so he needs something better, and is he going
to take away Google Search full from Apple users? I
doubt it. So there might be some modifications, but at
the moment Google can still pay for default. And here
again this was the judge's concern for the impact and
(17:54):
being modest, sort of the impact on you could say,
the whole eCos system of stopping those payments and you know,
maybe wrecking Firefox, you know, go, you know, even you
seem to be concerned about wrecking Apple. I didn't know
that Apple was in such bad shape. But there we are.
Speaker 2 (18:15):
Well, the government said it's considering its next steps. I mean,
I don't know what next steps it can take besides appeal.
But Google has previously said it's going to appeal. So
we assume we'll go to the Supreme Court. Right, It
could be years, then years and years before this gets implemented.
Speaker 3 (18:32):
Yeah, it might not go to the Supreme Court. Court
doesn't have to take it. Who you know, who knows
the court didn't take Microsoft for example, So yeah, maybe, yes,
maybe no. But the years is right. This will be
a while yet, and we haven't seen but could see
political interference with this. We really don't know. So there's
(18:55):
a lot between now and then, I guess. But the
liability decision, which he made more than a year ago,
I guess is that the whole bundle is subject to
appeal once a final judgment is entered, which he has
not done yet. So once that's done, then the parties
(19:16):
have you know, I think, sixty days to file their
notices of appeal and then the process starts to play
out in the Court of Appeals, you know, unless they
start some sort of settlement negotiations or something.
Speaker 2 (19:32):
I mean, do you think that his opinion is conservative
enough to survive the DC Court of Appeals?
Speaker 3 (19:39):
So he did a lot to try to survive review
by the Court of Appeals. I mean, he relied quite
heavily on you know, key decisions, particularly the Microsoft remedy decisions.
And he also, oh, by the way, bolstered one of
the potential weaknesses in the liability decision while he was
(20:01):
at it. So I think it's not perfectly bulletproof the
aspect of letting AI companies share in some of these data.
If I were Google, I would be hitting on that
whether that was you know, not warranted given as he
started out by saying there was nothing at the trial
(20:21):
about AI and there are ways of casting what he
did as maybe not within the balance of what the
goal was in the trial. So there's some potential issue there,
and I think it is certainly possible. I mean, I
assume Google will pursue that, So I think it's a
pretty you know, I mean, it could be more conservative.
I guess he could have just given Google what Google wanted.
(20:45):
But it's a carefully drawn opinion, and you know, time
after time he sort of knocks the government plaintiffs back
a bit by saying, you know, you've overreached, you're asking
for too much. You know, we need to be modest, etc.
Speaker 1 (20:59):
Etc.
Speaker 2 (21:00):
Harry the trial later this month to determine remedies in
a different case brought by the Justice Department, where a
judge found that Google holds illegal monopolies in online advertising technology.
How does that threaten Google? Is it more of.
Speaker 3 (21:19):
The same, Well, it is a little different. There's some
a bit of remedy on advertising, but not very much
because it's so much directed at effect on the search
engine market so directly, not so much indirectly. I think
(21:39):
we have to see it because from the beginning, the
Justice Department has asked for structural relief to break apart
the way Google does advertising, you know, to break it
up in fact, and have them to vest certain parts
of its advertising stack as they So this opinion is
(22:02):
very skeptical about this structural relief said, you know, if
nothing else works, then that may be possible. But the
ad Tech case may be a case where you know,
it's been directed at structural relief, so that may be okay.
Another aspect is how much money Google has made from advertising,
so it reinforces the notion that this has been a
(22:25):
monopolized market, so you know, that may have some effect.
It's important to note that that case is in a
different federal circuit. It's not in the DC circuit, and
it may be that the Justice Department chose to file
there for a number of reasons, but one of it
may be that on remedy wanting a structural remedy, the
(22:46):
DC circuit is a bad place to bring a case
like that given Microsoft, so maybe they were trying to
avoid that by being in a different circuit, in the
fourth circuit. So we've yet to see. I think she's
been holding up on this spending meta's opinion on remedy.
But you know they are fencing along on remedies hearing
(23:07):
in that case, so that should happen relatively soon.
Speaker 2 (23:12):
Yes, I googled it and the trial is scheduled to
begin on September twenty second. Thanks so much, Harry. As always,
that's Professor Harry First of NYU Law School, coming up
next on the Bloomberg Law Show. More than one thousand
HHS employees are calling on rfk Junior to step down.
(23:33):
I'm June Grosso and you're listening to Bloomberg today. More
than a thousand current and former employees across the Department
of Health and Human Services signed a letter calling for
Health Secretary Robert F. Kennedy Junior's resignation, accusing him of
endangering the health of Americans. The new letter comes just
(23:55):
two days after nine former directors and acting directors of
the Centers for Disease Control and Prevention wrote an op
ed also condemning Kennedy for endangering every American's health. Doctor
Richard Besser was one of the signees.
Speaker 1 (24:12):
We have grave concerns that the Secretary of Health is
endangering the health of people across our nation by not
letting the agency do its job, not following the science
and putting out guidance around COVID vaccine that is leading
to confusion.
Speaker 2 (24:26):
But it appears Kennedy is not listening. He wrote in
a Wall Street Journal op ed published today that his
changes are restoring trust in the CDC that was lost
during the COVID pandemic. That's something he said before.
Speaker 4 (24:42):
I'm very confident in the political staff that we have
down there now that they're going to be able to
accomplish that and ensure the confident functionality of that agency.
Speaker 2 (24:54):
My guest is Harry Nelson, a partner at Leech Tishman
Nelson Hardiman explain some of the concerns that healthcare professionals
have about Kennedy.
Speaker 1 (25:05):
Yeah.
Speaker 5 (25:05):
I think first and foremost what they're sounding the alarm
over is the politicization of public health itself. It just
seems that, you know that we're kind of in a
battle where science is losing ground over ideology in steering
health policy. So, you know, I think that op ed
(25:26):
was intended to be as public a form of rebuke
for RSK and the way he's reshaping the CDC and
public health policy as could be. You know, it was
the vaccines left week or two, but it's going to
move on to you know, the CONTI conversation over environmental
causes of autism and all the ways in which he
(25:47):
has really become, you know, very politicized and moving away
from science and kind of driving our public health policy.
Speaker 2 (25:54):
He's canceled medical research how much and in what areas well?
Speaker 5 (25:59):
I mean the cuts medical research have mostly come through
National Institute of Health NIH grants, over a billion dollars
in NIH grant cuts across different institutions, and you know,
just a massive, you know, reduction in kind of established
leadership in positions that were previously not considered political, from
(26:20):
the leadership of CDC itself, removing Susan Monarez after just
a few weeks on the job, to completely clearing out
the Advisory Committee on Vaccines, and so he's just done
a wholesale shift on public policy in ways that will
be experiencing the ramifications up for years to come. It's
not decades.
Speaker 2 (26:40):
What probably prompted this, the final straw, if you want
to call it, is the attempt to fire Manarez. So
she was just in there for a month. Didn't they
know what she stood for? What happened?
Speaker 5 (26:54):
You know? I think essentially she was really just following
sort of standard protocol at the CDC, and it was
clear that there was tension escalating as there was a
push from RFK and the people around him to narrow
federal COVID vaccine recommendations, to get rid of the standing
Advisory Committee, to start really changing the Vaccines for Children program,
(27:19):
And essentially it became clear that she was standing in
the way of some of the very aggressive moves that
RFK and as people wanted to make.
Speaker 2 (27:28):
RFK promised he wouldn't take vaccines away from anyone, but
tell us what happened with this guidance, the recent guidance,
and what it means for people who not in those
categories but want to get vaccines.
Speaker 5 (27:42):
I mean, so the main thing was that, you know,
the SDA essentially planned the break you could say on
sort of broad access to COVID boosters. Vaccines will remain
available and covered for sixty five and over and for
younger people who have a specific risk factor, but in
general are not going to be available for people under
(28:02):
sixty five without some specific risk factor, and of course
it's an issue of access. It now appears that there
are a number of states in which is going to
be very difficult to get vaccines, and also the cost
of vaccines because the change in health policy is going
to mean that the insurance companies will not be doing
any cost sharing on them, so these vaccines will be
(28:24):
much more expensive. It's clear that there's going to be
a difficult time for people who are wanting to get vaccinated.
And you know, the real question that will come likely
at the end of the next flu season that's not
yet here, is what the death rate, what the hospitalizations
will be. I think a lot of people will be
watching closely to see what the net impact of these
(28:47):
changes is going to be.
Speaker 2 (28:48):
So is that for the COVID vaccine? What about flu shots?
Speaker 5 (28:52):
This was specifically a COVID policy, but it's clear that
there are going to be significant limits on the flu
vaccine as well. But this specific policy was update to
eligibility for the various COVID nineteen you know vaccines you'll
remember as Pfizer, Maderna, and Novovac. It's certainly going to
have a broader effect on access to other vaccines, just
(29:14):
because so many pharmacies and insurance companies are taking their
leads from COVID policy for purposes of broader like influenza
B and other flu related shots.
Speaker 2 (29:25):
Is there anything that can be done or is it
just a question of you know, Kennedy's there and that's
it unless he's fired for some reason.
Speaker 5 (29:33):
Obviously, we're going to see lawsuits undoubtedly and challenges to
the firing of CDC director essentially, you know, questioning whether
there's a violation of separation of powers here and whether
there's any kind of retaliatory aspect to this. There certainly
is the possibility that states could start enacting their own
(29:54):
coverage mandates. We already see California and New York Massachusetts
are kind of moving in that direct and Congress could
step in here, although it doesn't seem like that is
likely to happen. The real remedy here, I think, is
if the American public are upset about this. It's not
only in the courts or in Congress. It's also just
by a public outcry to make it clear to President
(30:18):
Trump and his administration that this is really, you know,
a high priority issue that's concerning people. I do think
there are political remedies that are legal remedies, but the
train that's sort of leaving the station, then if they're
going to happen. We need to see some action, you know, eminently.
Speaker 2 (30:33):
In this up ed, the CDC directors called on Congress
to exercise oversight authority over the Department of Health and
Human Services. What can Congress do if they wanted to?
Speaker 5 (30:47):
Congress certainly could hold hearings, They could start to subpoena
you know, administration officials. They could certainly exercise you know,
authority to restore funding to state and local health agencies
that's been cut. I mean, I think there is quite
a bit that they could do. I think investigating holding hearings,
you know, demanding accountability from RFK, from the people reporting
(31:10):
up to him, and filling some of the funding gaps
are the obvious things that they could do. Kennedy, it
doesn't seem that Congress is at this moment demanding the
kind of answers on everything from the vaccine policy to
the leadership changes and the funding shifts that you know,
people concerned with public health might hope that they would.
Speaker 2 (31:29):
Well, Kennedy's going to appear on Thursday, I believe, so
maybe we'll see some of that. But you know, Bill Cassidy,
and he was the Louisiana Republican senator who delivered the
key vote to confirm Kennedy, and I remember he said,
I'm something like I'm trusting you on vaccines. He called
on HHS to indefinitely postpone it's Vaccine Advisory Committee meeting
(31:54):
on September eighteenth. That's not a long term solution.
Speaker 5 (31:58):
It's justesting, you know, Cenator Casey, who was as chair
of the Senate Health Committee and as a doctor with
someone whose vote was clearly pivotal in the confirmation, seems
to be trying to walk a cautious line here asking
for oversight, transparency, postponement on some of these critical vaccine
advisory you know meetings. He's definitely an important voice here.
(32:19):
What's been disappointing to me has been that, you know,
RFK is basically just refusing to dress, you know, square
on the issues. He seems to be just interested in
deflecting blame and you know, kind of trying to stay
on a higher level message about problems at the CDC
and a need for strong leadership, but without really getting
(32:40):
into the nuts and bolt of vaccine policy. And frankly,
there's no way to see the actions being taken now
as consistent with his testimony during the confirmation hearing.
Speaker 2 (32:51):
He is suggesting Silicon Valley investor and entrepreneur Jim O'Neill
is a new acting CDC director. Tell us about him.
Speaker 5 (33:01):
Yeah, I think people are worried that Jim O'Neill is,
you know, is not coming from the world of public
health and science. O'Neill, first of all, was a deputy
to RFK already and seems to be aligned with his
vision that he's just rebuilding the CDC. He's not expected
to put any challenge forward, you know, in the name
(33:23):
of science or in the name of public health. Is
likely that he's just going to be, you know, a
mouthpiece for RFK and for all the changes that are
already being made. So I don't think anyone who's concerned
about what's going on is that all reassured by O'Neill's selection.
Speaker 2 (33:37):
Does the CDC director have to be confirmed by the Senate?
Speaker 5 (33:40):
Yeah, the CDC director is a confirmed position. Yeah. I
think a lot of it will flow from how much
feedback the senators are getting from their constituents. You know.
It certainly is an opportunity to sort of take the
pulse of where America is standing on these issues. My
understanding is that he can serve six or seven months
without a formal confirmation hearing, so we may see this
(34:01):
issue pushed off until, you know, early twenty twenty six.
Speaker 2 (34:05):
So Trump said he would allow RFK Junior to go
wild on healthcare, and he certainly has done that. Are
there any restrictions on what RFK Junior can do.
Speaker 5 (34:18):
It's hard to see where Trump is having misgivings. I mean,
you know, there's certainly are areas where they were aligned.
We've seen, you know, President Trump posting on true Social
urging pharmaceuticals to release more data and sort of, you know,
claiming that there's some kind of hidden story about vaccine efficacy.
Speaker 1 (34:38):
You know.
Speaker 5 (34:38):
I think it's funny because President Trump has taken pride
at different points on Operation Warp Speed in the extent
to which his administration brought the vaccines out in the
middle of COVID, when, by the way, we had in
the course of two years we look at the data,
now over a million Americans dead in the first two
years of COVID. I think President Trump is largely distancing
(34:59):
himself from RFK specific actions and still trying to protect
his vaccine legacy. I would think that there's probably some
discomfort with the more aggressive aspects of RFK, but we
have yet to see like a real action to sort
of rein him.
Speaker 2 (35:15):
In Well, what was surprising to me is that they
had a gallup pole in July and Kennedy had higher
favorability ratings than Trump and the vice president and others.
Speaker 5 (35:28):
Interesting. He's obviously a very polarizing figure. I mean, make
America Healthy Again campaign has a lot of resonance. He's clearly,
you know, someone who for people who were excited about
what RK presented, he's delivering right, you know, whereas President
Trump is definitely having to walk a line sort of
affecting how people view him. But for people who buy
(35:49):
into the public health agenda that's being carried out in
this administration, to them, RFK the hero.
Speaker 2 (35:54):
Okay, so we talk about the negative things, is he
doing anything positive to make America healthy?
Speaker 5 (36:00):
There definitely are some good things. He's calling attention to
big food and to you know, the need for a
sort of new look at nutrition as a driver of health.
You know, the people who support him see him as
a reformer fighting against entrenched institutions, and I think MAHA
make American Health against speaks to people who are frustrated
(36:20):
with public health bureaucracy. But the problem is that when
you look at the op ed piece that came out,
for example, I mean the other side has a strong
scientific grounding to say that he's taking risks with American
health buy things like dismantling vaccine infrastructure. So there are
things that are positive. He's calling attention to chronic disease.
He's doing, you know, good things to sort of try
(36:43):
to create a populist focus on chronic illness in America
and the way in which American healthcare could stand to
be changed and shake it up. But I think we're
seeing that he's also throwing out the baby with the
bathwater on things like vaccine policy that I expect we'll
see is really keeping Americans alive and out of the
hospital in much larger numbers than without it.
Speaker 2 (37:06):
How likely is it that during the winter months we'll
see a resurgence of COVID without these vaccines.
Speaker 5 (37:15):
I think that's a critical question, and I think will
be watching. Obviously nobody is hoping for bad news, but
I think people are going to be watching very very
closely for the number of hospitalizations and the number of deaths.
And I do think that clearly by narrowing vaccine eligibility
(37:36):
to the sixty five and older group and to people
with a high risk condition, there's a bet being made
that those populations are the most at risk and have
the biggest central benefit. And on the other side, is this,
you know, not backed up by science, that there's negative
effects of vaccines for healthier, younger Americans. And so I
(37:59):
think everyone's should be watching the numbers months by month
as they get released closely this season, and certainly we
should all be praying for a mild flu season, you know,
not to have deadly variants of COVID, you know all
the other flues that are out there, bird flues. You know,
we should obviously be hoping for the best, but we're
definitely not coming into the season in a state of
(38:21):
high preparedness. If the opposite happens, and if we have
something deadly, well, as.
Speaker 2 (38:26):
You say, let's hope not. Thanks so much, Harry. That's
healthcare attorney Harry Nelson of Leech Tishman Nelson Hardiman. And
that's it for this edition of the Bloomberg Law Show.
Remember you can always get the latest legal news on
our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot bloomberg dot com, slash podcast, slash Law,
(38:48):
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso
and you're listening to Bloomberg
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