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Weekend Law: Big Oil Seeks Climate Lawsuit Reprieve; States Sue RFK Jr · Bloomberg Law

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  Speaker 1: Welcome to the weekend edition of Bloomberg Law. I'm Amy
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  Speaker 1: Morris and for June Grosso. June's off this week ahead.
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  Speaker 1: In this hour, we'll look at a fresh legal challenge
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  Speaker 1: for Health and Human Services Secretary Robert F. Kennedy Junior,
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  Speaker 1: Fifteen states are pushing back against his revamp of vaccine
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  Speaker 1: policy for children. Plus the latest in the high profile
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  Speaker 1: social media addiction trial and how that could signal a
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  Speaker 1: shift in how the legal system is used to rain
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  Speaker 1: in big tech. But first we begin with the Supreme
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  Speaker 1: Court and big oil. Exeon Mobile and suncoret Energy are
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  Speaker 1: asking the High Court to review a lower court ruling
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  Speaker 1: that would allow them to be sued over climate change
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  Speaker 1: and joining us now to discuss how this could all
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  Speaker 1: play out. Bloomberg Supreme Court reporter Greg's store. Greg, thank
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  Speaker 1: you so much for taking the time with us today.
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  Speaker 1: Let's first just talk about the case itself, involving city
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  Speaker 1: and state lawsuits blaming oil companies for climate change. Have
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  Speaker 1: I made that a little too simple? Not really.
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  Speaker 4: It blames them for climate change, and it blames them
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  Speaker 4: for misleading consumers about climate change. That's what the suit
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  Speaker 4: by the city and the County of Boulder, Colorado is saying.
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  Speaker 4: And the question for the Supreme Court is basically whether
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  Speaker 4: those claims can get in the door.
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  Speaker 1: So that's a pretty simple question. But this is a
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  Speaker 1: really complicated topic.
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  Speaker 4: Yeah, it's super complicated. It's about this notion of preemption,
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  Speaker 4: which generally means when federal law sort of displaces state
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  Speaker 4: law and means that state law doesn't apply.
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  Speaker 1: Oh, so it goes way beyond just climate change. And
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  Speaker 1: did you mislead us about what this is about? State
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  Speaker 1: versus FED.
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  Speaker 4: It is very much state versus FED. It's a dynamic
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  Speaker 4: we actually see a lot at the Supreme Court. It's
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  Speaker 4: kind of similar to the dynamic in that Monsanto case
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  Speaker 4: involving Roundup, where the question is whether a federal law
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  Speaker 4: means you can't sue under state law.
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  Speaker 1: Okay, so what is the oil company's argument?
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  Speaker 6: Then?
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  Speaker 1: They don't want this case to be heard at all.
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  Speaker 4: They don't want this case or similar cases being heard
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  Speaker 4: at all. They say that the matter of climate change
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  Speaker 4: is entirely a federal matter. It is not something states
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  Speaker 4: can or cities can sue using their own state laws
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  Speaker 4: to get damages, which is what Boulder is trying to
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  Speaker 4: get in this case. They say, sort of a combination
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  Speaker 4: of the Clean Air Act, something known as federal common law,
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  Speaker 4: and the Constitution all basically out the state from having
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  Speaker 4: any role here.
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  Speaker 1: I see. So because there are laws that come under
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  Speaker 1: the federal heading, they say, states and cities really don't
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  Speaker 1: have jurisdiction here, even though we all experience climate.
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  Speaker 4: Yeah, that's right. And you know, basically the core of
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  Speaker 4: the argument is that climate change is a matter of
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  Speaker 4: interstate pollution. It's not just within a state, and it's
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  Speaker 4: a matter of foreign affairs, because obviously, you know, what
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  Speaker 4: happens in other countries effects the United States and states
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  Speaker 4: and vice versa, and so they say this is especially
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  Speaker 4: a case where the States shouldn't be involved.
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  Speaker 1: Okay, now, I've read what you wrote on the Bloomberg terminal,
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  Speaker 1: and one of the things you wrote was that they
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  Speaker 1: have argued that the stakes in this couldn't be higher.
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  Speaker 1: That's the oil companies arguing that what's the stakes for them?
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  Speaker 4: Well, part of it, well, it's certainly billions and billions
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  Speaker 4: of dollars, and that's in part because there are dozens
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  Speaker 4: of these suits out there, and there have been several
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  Speaker 4: times in the past where the Supreme Court has refused
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  Speaker 4: to hear appeals on various issues. And so what the
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  Speaker 4: oil companies are really hoping is that the Supreme Court
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  Speaker 4: will deal a big blow here and knock out most
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  Speaker 4: or all of those state court suits.
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  Speaker 1: Is imposing untold damages on energy companies, which is one
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  Speaker 1: of the things they're arguing. Is that a defense. I mean,
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  Speaker 1: can they just argue that, well, if they do this,
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  Speaker 1: they're going to wreckord industry, so they can't do it.
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  Speaker 4: That's probably less a defense to the lawsuit than it
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  Speaker 4: is a reason for the Supreme Court to get involved.
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  Speaker 4: So the briefs we're looking at now are where the
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  Speaker 4: oil companies are saying, Hey, Supreme Court, it's really really
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  Speaker 4: important that you get involved, and the City Boulder was saying, actually,
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  Speaker 4: this is not that important at least the issues that
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  Speaker 4: the oil companies are asking.
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  Speaker 2: You to hear.
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  Speaker 1: Is this at all similar to say, suing the tobacco industry.
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  Speaker 4: It bears some similarity in that, you know, there's a
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  Speaker 4: big set of companies, there's a great harm that's done,
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  Speaker 4: there are arguments about how much those companies are to blame,
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  Speaker 4: and people who have been been hurt by it or
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  Speaker 4: say they have been hurt by it, are looking for
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  Speaker 4: legal theories ways they can get into court and make
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  Speaker 4: the big companies pay for some of the damage they
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  Speaker 4: say they've caused.
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  Speaker 1: This can't be the first time that we've seen something
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  Speaker 1: like this with oil companies, though. Is it just becoming
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  Speaker 1: more frequent and it feels new, or is this something
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  Speaker 1: that's been building. Tell me about the history of this.
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  Speaker 4: It has been building over a matter of years. As
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  Speaker 4: I said, there had been dozens of suits and the
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  Speaker 4: litigation use the word complicated at the beginning, very complicated.
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  Speaker 4: So there were fights over whether these lawsuits belong in
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  Speaker 4: state court or federal court. The companies preferred them in
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  Speaker 4: federal court because that's where the corporate defendants tend to
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  Speaker 4: fare a little bit better. The Supreme Court a while
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  Speaker 4: back said no, we're not going to hear oil company
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  Speaker 4: arguments to try to shift these suits from state to
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  Speaker 4: federal court. So there's an awful lot of kind of
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  Speaker 4: preliminary issues like that before we even get to the
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  Speaker 4: question of whether oil companies are actually to blame.
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  Speaker 1: Oh wow. So they have to first go through basically
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  Speaker 1: the housekeeping, which is who can sue them?
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  Speaker 4: Yeah, yeah, who can sue them? What law applies is
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  Speaker 4: going to kick in at some point, whether it's the
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  Speaker 4: law of Colorado or some other state or some other jurisdiction.
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  Speaker 4: There are very very complicated litigation as I as they say,
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  Speaker 4: and all those things have to get sorted out. Right now,
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  Speaker 4: though this is really about whether the suit can go
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  Speaker 4: forward at all.
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  Speaker 1: Let's talk a bit more about what the states and
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  Speaker 1: cities are suing them for, like what's the crux of
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  Speaker 1: their argument.
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  Speaker 4: So they have a variety of I'll use some lawyer
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  Speaker 4: league terms here, kind of state law claims, like something
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  Speaker 4: called nuisance, which is basically what you might do if
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  Speaker 4: you had a big power plant next to you and
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  Speaker 4: smoke from that power plant came into your property, you
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  Speaker 4: might sue under state nuisance law. There's theories like unjust enrichment.
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  Speaker 4: I believe they're certainly claiming that the oil companies misled
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  Speaker 4: consumers cause them to do things they wouldn't have done otherwise,
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  Speaker 4: because they sort of downplate the impact of climate change,
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  Speaker 4: and those are all things that if this were just
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  Speaker 4: a matter of stuff going on within a state, there'd
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  Speaker 4: be no question the claims could go forward. Whether they're
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  Speaker 4: true or not's now the matter. But because climate change
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  Speaker 4: is different, because the people in Colorado aren't just affected
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  Speaker 4: by pollution in Colorado, they're affected by pollution in other
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  Speaker 4: states and outside the country. That's why we have all
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  Speaker 4: these questions about state versus federal and whether the suits
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  Speaker 4: can go forward under state law.
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  Speaker 1: So is there any precedent or any other appeals that
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  Speaker 1: might give us a peek into where this is editor
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  Speaker 1: how it's getting there, or is this so unique because
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  Speaker 1: of the difference between the disconnect between the federal and
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  Speaker 1: the state.
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  Speaker 4: So it depends on which side you ask. Okay, the
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  Speaker 4: oil companies will tell you that, hey, there are some
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  Speaker 4: Supreme Court precedents involving say the interpretation of the Clean
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  Speaker 4: Air Act, where the Supreme Court said, no, you can't
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  Speaker 4: sue for that sort of thing, you can't sue under
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  Speaker 4: your own law, or a discharge out of state that
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  Speaker 4: made its way into your state, say, you know, in
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  Speaker 4: the air or something like that. And the Boulder says, actually,
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  Speaker 4: that's not applicable here. This is very different, and in fact,
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  Speaker 4: what the oil companies are asking you to do Supreme
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  Speaker 4: Court is basically unprecedented. So the Bowlder's contention is that
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  Speaker 4: this notion that the Constitution preempts something because this is
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  Speaker 4: like inherently this is an inherently federal matter climate change.
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  Speaker 4: The Boulder says, that is a legal theory that the
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  Speaker 4: Supreme Court has never endorsed. So depending on which side
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  Speaker 4: you ask, is that's kind of the lens you look
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  Speaker 4: at it through in terms of whether this is unprecedented
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  Speaker 4: or just you know, something the Supreme Court has seen before.
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  Speaker 1: So depending on what the Supreme Court says, what impact
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  Speaker 1: could that have? Could it quash future lawsuits. Could it
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  Speaker 1: give a shield to big oil?
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  Speaker 4: It could certainly give a shield to big oil, and
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  Speaker 4: it could be a very significant shield. Now with dozens
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  Speaker 4: of suits out there, there might be other kind of
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  Speaker 4: legal approaches that could go forward. Even the oil companies
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  Speaker 4: are saying that Colorado could still press a very very
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  Speaker 4: narrow claim about pollution that happened within Colorado affecting people
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  Speaker 4: in Colorado, but the Boulders trying to do much much
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  Speaker 4: more than that. It again, just the complications of all
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  Speaker 4: this litigation means that there probably will still be some
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  Speaker 4: avenues even if the oil companies win here for claims
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  Speaker 4: to go forward. There's always the potential that, you know, say,
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  Speaker 4: a new administration could come in in a few years
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  Speaker 4: and you know, make some changes that allow suit to
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  Speaker 4: go forward, and new legislation could be passed. So it
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  Speaker 4: wouldn't necessarily cut it off for all times, but it
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  Speaker 4: would certainly be a significant shield for oil companies. If
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  Speaker 4: the Supreme Court says Boulder can't sue.
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  Speaker 1: Yeah, I was going to ask, that would add another
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  Speaker 1: layer of, let's say it again, complication to this particular case.
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  Speaker 1: If a new administration were to come in and start
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  Speaker 1: changing rules to allow or disallow things to happen.
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  Speaker 4: Yeah, I don't think there's any questions. So one of
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  Speaker 4: the kind of sub issues in this case is what
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  Speaker 4: the Clean Air Act says about allowing lawsuits. And you know,
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  Speaker 4: certainly a new Congress could come in and say we
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  Speaker 4: want to make the Clean Air Act much more specific
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  Speaker 4: about climate change, both to empower the EPA to do
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  Speaker 4: things and to explicitly say states can file lawsuits. That's
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  Speaker 4: at least, you know, pretty likely that that could be done.
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  Speaker 4: Whether it actually happens as a matter of politics, and
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  Speaker 4: you know, priorities is another question.
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  Speaker 1: Where do things stand now? And what are you watching
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  Speaker 1: for in the next few weeks.
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  Speaker 4: So the Supreme Court's going to hear arguments, The arguments
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  Speaker 4: are not going to be until next term, so probably
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  Speaker 4: October or November, briefs will be filed. That's sort of
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  Speaker 4: the next thing that will be happening over the next
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  Speaker 4: few weeks.
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  Speaker 2: And one thing.
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  Speaker 4: I'll be looking for I didn't even sort of give you.
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  Speaker 4: One of the complicating factors here is that when the
• 11:37
  Speaker 4: Supreme Court agreed to hear this case, they said we
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  Speaker 4: want briefing on yet another tricky question, which is whether
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  Speaker 4: we the Supreme Court have any business in this case
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  Speaker 4: at all right now. So up until now, this has
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  Speaker 4: been handled through the Colorado courts, and the Colorado Supreme
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  Speaker 4: Court said the lawsuit could go forward. And argument that
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  Speaker 4: Boulder is making is that normally the US Supreme Court
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  Speaker 4: can't jump into a state court lawsuit until there's a
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  Speaker 4: final judgment, and we don't have a final judgment in
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  Speaker 4: this case, and so that those arguments haven't really been
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  Speaker 4: developed in the briefing all that much yet. But the
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  Speaker 4: Supreme Court said we want to hear more about that.
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  Speaker 4: So the question will be, is there a chance the
• 12:23
  Speaker 4: Supreme Court will basically say, you know what, we can't
• 12:27
  Speaker 4: decide this issue right now. We don't have jurisdiction until
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  Speaker 4: it plays out more in the Colorado courts. Therefore, this
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  Speaker 4: big fight we've been talking about, this potential shield for
• 12:36
  Speaker 4: the oil industry, that's going to have to wait for
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  Speaker 4: another case or further down the road in this one.
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  Speaker 1: All right, thanks so much, Bloomberg. Supreme Court reporter Greg Store,
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  Speaker 1: thank you for taking the time of boiling it down
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  Speaker 1: for us. Appreciate it, my pleasure. Coming up, we turned
• 12:51
  Speaker 1: to the legal challenges facing OURFK Junior's overhaul of vaccine policy.
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  Speaker 1: You're listening to Bloomberg Law. I'm Amy Morris and for
• 12:58
  Speaker 1: June Grosso and this Bloomberg.
• 13:07
  Speaker 2: You're listening to Bloomberg Law with June Grosso from Bloomberg Radio.
• 13:13
  Speaker 1: Thank you for listening to the weekend edition of Bloomberg Law.
• 13:16
  Speaker 1: I Namy Morris in for June Grosso. Over this past year,
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  Speaker 1: RFK Junior has made his mark as Secretary of Health
• 13:22
  Speaker 1: and Human Services in the Trump administration, especially when it
• 13:26
  Speaker 1: comes to vaccine policy. He's reshaped a key advisory panel
• 13:30
  Speaker 1: and made some big changes to the national vaccine schedule
• 13:33
  Speaker 1: for children. Those moves are facing pushback now from fifteen states,
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  Speaker 1: led by Arizona in California. Joining us now Bloomberg News
• 13:42
  Speaker 1: health reporter Jessica Nix. She's going to fill us in
• 13:44
  Speaker 1: on the latest with this. Now, Jessica, first of all,
• 13:47
  Speaker 1: let's talk about the challenge to the overhaul. Where's this
• 13:50
  Speaker 1: challenge coming from. What's it based on?
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  Speaker 5: Absolutely? Thank you so much for having me. This is
• 13:55
  Speaker 5: really based on something that RFK Junior did. On January fifth,
• 14:00
  Speaker 5: his administration at Health and Human Services issued this new
• 14:04
  Speaker 5: CDC Immunization schedule. They called it the Decision Memo. What
• 14:09
  Speaker 5: basically they did is they took the existing childhood immunization
• 14:13
  Speaker 5: schedule and part it down to a list of eleven diseases,
• 14:17
  Speaker 5: down from seventeen. So now we have shots covering just
• 14:20
  Speaker 5: eleven diseases, no longer the seventeen that we saw before.
• 14:24
  Speaker 5: Some of the shots that were on the chopping block
• 14:26
  Speaker 5: included long standing recommendations for RSV, for influenza, for COVID,
• 14:32
  Speaker 5: even including it. New macaccle disease was on there as well,
• 14:36
  Speaker 5: hepatitis B, hepatitis A. So it was a drastic change
• 14:41
  Speaker 5: from what we have seen in the US for the
• 14:44
  Speaker 5: national schedule. So that happened on January fifth.
• 14:48
  Speaker 1: So is that the full extent of the overhaul just
• 14:51
  Speaker 1: basically changing the schedules, changing what the vaccines are that
• 14:55
  Speaker 1: kids are going to be getting, and really, how is
• 14:58
  Speaker 1: that going to impact then the states, the families, the kids.
• 15:03
  Speaker 1: Are they calling this an overreach? They are?
• 15:06
  Speaker 5: I think when you think about Rfk's time at HHS,
• 15:10
  Speaker 5: it's been this crusade against vaccination policy. Before coming in,
• 15:14
  Speaker 5: he was really criticized as being somebody who was skeptical
• 15:17
  Speaker 5: of vaccines, an anti vaxer. Even he was called, He's
• 15:21
  Speaker 5: constantly pushed back and said, you know, I'm not an
• 15:23
  Speaker 5: anti vaxer. I'm pro safety, I'm pro looking at vaccinations.
• 15:27
  Speaker 5: So there was this worry when he came into office
• 15:30
  Speaker 5: that he was going to overhaul the vaccine schedule. The
• 15:32
  Speaker 5: first thing he started to do last year in the
• 15:35
  Speaker 5: spring was overhaul the recommendations for COVID shots for healthy
• 15:39
  Speaker 5: kids and pregnant women. A few weeks after that, in June,
• 15:43
  Speaker 5: he fired the entire panel of this group called the
• 15:46
  Speaker 5: Advisory Committee on Immunization Practices out of the CDC. It's
• 15:50
  Speaker 5: an advisory panel of experts who always meet a few
• 15:54
  Speaker 5: times a year to discuss recommendations for vaccines. They're really
• 15:57
  Speaker 5: influential and that they talk about vaccinations and what can
• 16:00
  Speaker 5: be added to the schedule, changed for schedules, whether it's
• 16:03
  Speaker 5: for children or for adults. But they also decide insurance
• 16:06
  Speaker 5: coverage for vaccines and whether federal insurance is going to
• 16:09
  Speaker 5: be covering those vaccines or if they're offered for free
• 16:12
  Speaker 5: under this program called the Vaccines for Children Program. That
• 16:15
  Speaker 5: program offers free vaccinations to over half of America's Kids.
• 16:20
  Speaker 5: So in June of last year, RFK fired the entire
• 16:24
  Speaker 5: seventeen member panel and then he replaced them with people
• 16:27
  Speaker 5: who were largely seen as vaccine skeptics or people with
• 16:31
  Speaker 5: conflicts of interest to vaccinations into some vaccine makers. There
• 16:35
  Speaker 5: were notably two people he put on who testified against
• 16:39
  Speaker 5: MRK on their vaccine called guard as Self for HPV.
• 16:45
  Speaker 5: So that panel started meeting last year. Meetings were filled
• 16:49
  Speaker 5: with misinformation. A lot of times members didn't know the
• 16:53
  Speaker 5: consequences of their votes or what they were actually voting on.
• 16:56
  Speaker 5: So these meetings were taking up a lot of headlines.
• 16:59
  Speaker 5: They were gets a lot of traction in the public
• 17:01
  Speaker 5: health world. And then by December, the most drastic action
• 17:07
  Speaker 5: that committee took is that they removed the hepatitis B
• 17:10
  Speaker 5: recommendation for all newborns. Previously, all newborns were required to
• 17:14
  Speaker 5: get the hepatitis B dose within twenty four hours of
• 17:18
  Speaker 5: birth to be able to protect them from a severe
• 17:20
  Speaker 5: liver infection that can also lead to death later in
• 17:23
  Speaker 5: life if they caught it. So the committee walked that
• 17:26
  Speaker 5: back and rolled it back in December. A month after
• 17:29
  Speaker 5: that is when we saw RFK Junior come out with
• 17:32
  Speaker 5: the Decision memo where he revamped the entire childhood vaccine schedule.
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  Speaker 5: So that's really what's an issue here. It's all of
• 17:39
  Speaker 5: these steps that he's taken to be able to reach
• 17:42
  Speaker 5: this point of redoing the childhood vaccination schedule, which a
• 17:46
  Speaker 5: lot of public health experts have said, this new schedule
• 17:48
  Speaker 5: is incredibly dangerous. It's not looking at the entire US
• 17:52
  Speaker 5: healthcare system to be able to say, these are the
• 17:55
  Speaker 5: vaccinations that we need to make sure that we're covering
• 17:57
  Speaker 5: our kids who may be exposed to different diseases, who
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  Speaker 5: may not have access to health insurance or health care,
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  Speaker 5: or access to a hospital nearby if they do get sick.
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  Speaker 1: All right, let's break that down. Let's talk about what
• 18:10
  Speaker 1: this does and does not allow parents to do. If
• 18:13
  Speaker 1: you are a concerned parent, you can still get your
• 18:16
  Speaker 1: child vaccinated, like the vaccines still exist, right, the schedule
• 18:20
  Speaker 1: is what's changed.
• 18:21
  Speaker 5: Absolutely, you as a parent could still walk into your
• 18:23
  Speaker 5: pediatrician's office and ask for those vaccines if you want them.
• 18:28
  Speaker 5: What they did on the schedule is they moved the
• 18:30
  Speaker 5: vaccines from what's called recommended to something called shared clinical
• 18:34
  Speaker 5: decision making. It's just a term that really talks about
• 18:37
  Speaker 5: whether insurance is going to cover a vaccine or not.
• 18:40
  Speaker 5: Now insurance companies have said they are still going to
• 18:42
  Speaker 5: cover these vaccines, but as a parent, you can still
• 18:45
  Speaker 5: get them if you want them. It's just adding to
• 18:48
  Speaker 5: this layer of confusion around vaccines.
• 18:51
  Speaker 1: Also, schools still have requirements for vaccinations, right, so if
• 18:55
  Speaker 1: these aren't as readily available or as easily available, they
• 18:58
  Speaker 1: still have to be done right.
• 19:01
  Speaker 5: Yes, schools still have their own schedules, but again those
• 19:04
  Speaker 5: are going to be public schools that have those schedules.
• 19:06
  Speaker 5: Private schools are going to do something a little bit different,
• 19:08
  Speaker 5: or homeschools. So public schools will still be recommending these
• 19:12
  Speaker 5: shots and making sure that you are up to date
• 19:14
  Speaker 5: on immunizations. But there's another thing that's happening here. That's
• 19:17
  Speaker 5: the national schedule that they overhauled last year. States still
• 19:22
  Speaker 5: have their own vaccine schedules. Last year, when RFK started
• 19:25
  Speaker 5: revamping the Advisory Committee, some Democratic states started banding together
• 19:31
  Speaker 5: to create their own public health coalitions to start creating
• 19:34
  Speaker 5: their own vaccine schedules and codifying their vaccine schedules to
• 19:38
  Speaker 5: no longer be tied to the CDC one. So now
• 19:41
  Speaker 5: we're seeing this piecemeal vaccine policy between blue states and
• 19:44
  Speaker 5: red states across the US. And so if you're in
• 19:47
  Speaker 5: New York, for instance, your vaccine schedule for your kid
• 19:51
  Speaker 5: who's going to be in public school is going to
• 19:53
  Speaker 5: be just the same as it was last year. If
• 19:55
  Speaker 5: you're in another state, that's going to be up for question.
• 19:58
  Speaker 1: You said something earlier in the interview. I want to
• 20:01
  Speaker 1: be clear that I understood what you were saying. You're
• 20:03
  Speaker 1: talking about the new panel, the new board that the
• 20:07
  Speaker 1: Secretary of Health has put into place, and you talked
• 20:10
  Speaker 1: a little bit about the misinformation that they were receiving.
• 20:14
  Speaker 1: One of the things you said was is that some
• 20:15
  Speaker 1: of the members of the board don't even realize what
• 20:18
  Speaker 1: they are voting for in some circumstances. What do you
• 20:20
  Speaker 1: mean by that.
• 20:22
  Speaker 5: We really saw that play out in September in a
• 20:24
  Speaker 5: meeting where they were discussing the Hepatitis BE vaccine. As
• 20:30
  Speaker 5: they were discussing it, members didn't really understand what the
• 20:34
  Speaker 5: voting questions were. And this is the typical cadence of
• 20:38
  Speaker 5: these meetings that we see where members will discuss a vaccine.
• 20:43
  Speaker 5: Companies are able to come with their own comment about
• 20:46
  Speaker 5: the vaccine and about the data that's being presented. Medical
• 20:49
  Speaker 5: groups are able to comment. There's a public comment period,
• 20:51
  Speaker 5: and at the end the members then decide on a
• 20:54
  Speaker 5: vote of whether to add something to the schedule, to
• 20:56
  Speaker 5: change the schedule, to change their recommendation on the dosage,
• 20:59
  Speaker 5: or whatever have you.
• 21:00
  Speaker 1: Is the issue.
• 21:02
  Speaker 5: Back in September, we saw members didn't really understand what
• 21:06
  Speaker 5: was going on with the Hepatitis BE voting language. Some
• 21:09
  Speaker 5: of the language even on COVID shots was being amended,
• 21:12
  Speaker 5: like in real time. They ended up punting the Hepatitis
• 21:15
  Speaker 5: BE discussion to another day. It's incredibly complicated and obviously
• 21:21
  Speaker 5: these members were confused on what they were voting on
• 21:24
  Speaker 5: the voting language, the implications of their votes too, and
• 21:29
  Speaker 5: how this would play out for insurance coverage.
• 21:31
  Speaker 1: Okay, so now there are lawsuits in place, pushed back
• 21:35
  Speaker 1: from fifteen states. Are there fifteen different lawsuits? Is it
• 21:38
  Speaker 1: all one big lawsuit? How is that working out?
• 21:41
  Speaker 5: It's one big lawsuit. It's being led by the attorneys
• 21:44
  Speaker 5: in Arizona and in California. It's mostly Democratic states that
• 21:48
  Speaker 5: we're seeing. It's fourteen different attorneys general. We're also seeing
• 21:52
  Speaker 5: the governor of Pennsylvania has added his name to the
• 21:55
  Speaker 5: suit as well, So they're all pushing back against this
• 21:58
  Speaker 5: vaccine schedule. Is important to remember these are different states
• 22:03
  Speaker 5: that have joined these public health coalitions and come up
• 22:05
  Speaker 5: with their own vaccine schedules that are different from that
• 22:09
  Speaker 5: national schedule that RFK revamped RFK Junior revamped. However, they're
• 22:14
  Speaker 5: arguing that even though their schedules may be different, they're
• 22:17
  Speaker 5: still having to deal with the economic fallout and the
• 22:20
  Speaker 5: misinformation that comes with this revamp that has been pushed
• 22:25
  Speaker 5: by the administration.
• 22:27
  Speaker 1: So what are they asking for? Are they asking for
• 22:29
  Speaker 1: him to withdraw the revamp or to exempt their what
• 22:32
  Speaker 1: do they want?
• 22:33
  Speaker 5: They want two things. They want the childhood immunization schedule
• 22:37
  Speaker 5: to be reversed to April of twenty twenty five, which
• 22:41
  Speaker 5: would be before RFK Junior came in and redid the
• 22:44
  Speaker 5: entire advisory committee at the CDC, And they're arguing that
• 22:48
  Speaker 5: the CDC's advisory committee was illegally constituted. They're saying that
• 22:55
  Speaker 5: that committee has to be a membership that is fairly balanced,
• 22:59
  Speaker 5: and there are is that these new members were not
• 23:01
  Speaker 5: fairly balanced. They did not follow the right federal guidelines
• 23:05
  Speaker 5: to be able to put these members into place after
• 23:08
  Speaker 5: that seventeen member panel was fired, and so they want
• 23:11
  Speaker 5: the panel to be disbanded as its current makeup, and
• 23:17
  Speaker 5: they want the childhood immunization schedule to be reversed to
• 23:20
  Speaker 5: before that decision memo came out on January fifth.
• 23:23
  Speaker 1: How unusual is this lawsuit? Is there any historical precedent
• 23:28
  Speaker 1: that could give us an inkling about which direction this
• 23:30
  Speaker 1: is going to go?
• 23:32
  Speaker 5: This is pretty unprecedented. We've never seen an HHS secretary
• 23:37
  Speaker 5: revamp the entire childhood immunization schedule and really go on
• 23:41
  Speaker 5: a crusade against vaccines like we've seen out of this administration.
• 23:46
  Speaker 5: There is one other lawsuit that is very very similar
• 23:49
  Speaker 5: to the one that was filed by these fifteen states
• 23:52
  Speaker 5: that's currently playing out in Massachusetts, that was filed last summer,
• 23:56
  Speaker 5: led by the American Academy of Pediatrics and other top
• 23:59
  Speaker 5: medical groups. So they originally filed a lawsuit over the
• 24:02
  Speaker 5: changes to that vaccine Advisory Committee. They've then amended that
• 24:06
  Speaker 5: lawsuit based off of the changes to the Hepatitis B
• 24:09
  Speaker 5: vaccine and also to the changes to the childhood immunization
• 24:13
  Speaker 5: schedule from January so the first hearing for that was
• 24:16
  Speaker 5: earlier in February. They were also arguing for this vaccine
• 24:21
  Speaker 5: committee to not take place in February where they were
• 24:24
  Speaker 5: originally supposed to meet. That meeting has now been delayed
• 24:28
  Speaker 5: to the middle of March. There's another hearing for that
• 24:32
  Speaker 5: lawsuit in early March. But they are asking the same
• 24:35
  Speaker 5: thing as these fifteen states, for that vaccine panel to
• 24:38
  Speaker 5: be disbanded and for the childed immunization schedule to be reversed.
• 24:43
  Speaker 1: Oh wow, so it could take months for this to
• 24:45
  Speaker 1: actually make its way through the court system.
• 24:47
  Speaker 5: Absolutely, Yeah, well this is in for the long call.
• 24:50
  Speaker 1: So then what are you going to be watching for
• 24:51
  Speaker 1: over the next few months.
• 24:53
  Speaker 5: Well, we're watching, especially this Vaccine Advisory Panel to see
• 24:56
  Speaker 5: how much more they could do to the childhood immunization's
• 25:00
  Speaker 5: schedule and even to the adult immunization schedule and which
• 25:03
  Speaker 5: vaccines are going to be next on the chopping block.
• 25:05
  Speaker 5: So they've already gone after hepatitis be enrolled back that
• 25:08
  Speaker 5: first recommendation. But we've heard from members of that committee
• 25:12
  Speaker 5: who've said that any vaccine is going to be on
• 25:14
  Speaker 5: the table, that they want to look at everything in
• 25:17
  Speaker 5: terms of safety, in terms of efficacy and decide which
• 25:21
  Speaker 5: vaccines should really stay on those schedules or be changed
• 25:25
  Speaker 5: around for recommendations, for ages, for whether something should be
• 25:30
  Speaker 5: still considered a recommended vaccine versus that shared clinical decision
• 25:35
  Speaker 5: making language.
• 25:37
  Speaker 1: All right, Jessica, thank you so much for taking the
• 25:39
  Speaker 1: time with us today. We do appreciate it.
• 25:40
  Speaker 5: Thank you for having me.
• 25:42
  Speaker 1: Jessica Nix is a health reporter for Bloomberg News, and
• 25:45
  Speaker 1: just ahead, we'll talk about the social media addiction trial
• 25:48
  Speaker 1: and how jury trials like this one could be used
• 25:51
  Speaker 1: to keep big tech in check. I'm Amy Morris and
• 25:54
  Speaker 1: for June Grosso. This is Bloomberg.
• 26:04
  Speaker 2: You're listening to Bloomberg Law with June grosseol from Bloomberg Radio.
• 26:09
  Speaker 1: You're listening to the weekend edition of Bloomberg Law. I'm
• 26:12
  Speaker 1: Amy Morris filling in for June Grosso. June's office week.
• 26:15
  Speaker 1: Two of the world's biggest social media platforms are on
• 26:19
  Speaker 1: trial over allegations that they intentionally make their products addictive
• 26:23
  Speaker 1: to young people. A twenty year old woman says Meta's
• 26:26
  Speaker 1: Instagram and Google's YouTube caused her to suffer anxiety, depression,
• 26:30
  Speaker 1: and body dysmorphia. This is the first case of its kind,
• 26:34
  Speaker 1: but probably not the last. Let's look at the latest
• 26:37
  Speaker 1: in this high profile trial and how this could change
• 26:40
  Speaker 1: the way lawyers handle cases involving big tech. Justin Daniels
• 26:44
  Speaker 1: is a shareholder at Baker Donaldson, a corporate and technology
• 26:47
  Speaker 1: transaction lawyer. He recently wrote about this for Bloomberg Law
• 26:50
  Speaker 1: and he joins us now, Justin, thank you so much
• 26:53
  Speaker 1: for joining us today.
• 26:54
  Speaker 6: My pleasure.
• 26:56
  Speaker 1: First, let's just go over the parameters of this case.
• 26:59
  Speaker 1: On the face of it, it does seem pretty simple.
• 27:01
  Speaker 1: The social media platforms facing allegations of purposefully creating an
• 27:06
  Speaker 1: addictive product. It sort of made me think of cigarettes
• 27:10
  Speaker 1: or tobacco. Is that about right?
• 27:12
  Speaker 3: I think that's a great analogy, and I would include
• 27:14
  Speaker 3: firearms as well.
• 27:16
  Speaker 1: So if it's so simple, why is it so groundbreaking?
• 27:20
  Speaker 3: I think it's groundbreaking because let's step back and look
• 27:25
  Speaker 3: at the regulatory environment. So we have a situation where
• 27:31
  Speaker 3: we don't have any kind of federal law of really
• 27:34
  Speaker 3: governing privacy cybersecurity, and we're dealing with the big tech companies,
• 27:43
  Speaker 3: and regulation around social media platforms, as you know, in
• 27:47
  Speaker 3: some respects is politically constrained or just vague. So in
• 27:52
  Speaker 3: an environment like that and you're dealing with really important
• 27:56
  Speaker 3: issues around addiction, and if we get younger, protect did
• 28:00
  Speaker 3: class of people which are children. When you don't have
• 28:03
  Speaker 3: that regulatory guidance, by default, we're going to go to
• 28:07
  Speaker 3: the tort system and ultimately a jury may step in
• 28:10
  Speaker 3: and be your defected regulator.
• 28:13
  Speaker 1: So then this would create a new role for juries.
• 28:17
  Speaker 1: Is that new or is this just becoming more popular.
• 28:19
  Speaker 1: It's sort of growing in this way.
• 28:22
  Speaker 6: I don't think it's a new role.
• 28:24
  Speaker 3: It's just understanding that when you are in a regulatory
• 28:28
  Speaker 3: environment that is uncertain, where there aren't guardrails, you have
• 28:32
  Speaker 3: a lot of money at stake when it comes to
• 28:34
  Speaker 3: the big tech companies and their competition with each other
• 28:37
  Speaker 3: for users, and there are concerns out there about harms
• 28:42
  Speaker 3: such as the ones that you've described. In an environment
• 28:45
  Speaker 3: like that with no regulatory guidance, it shifts to bringing
• 28:49
  Speaker 3: cases under the tort laws and getting in front of
• 28:53
  Speaker 3: jurys and seeing what they're going to decide. So I
• 28:56
  Speaker 3: don't think it's anything new, but I do think it
• 28:58
  Speaker 3: really impacts how in house attorneys have to think about
• 29:03
  Speaker 3: being part of the design team when companies are developing
• 29:06
  Speaker 3: these products because design trade offs that get made could
• 29:10
  Speaker 3: end up being exhibits in depositions or at trial.
• 29:14
  Speaker 1: Okay, let's talk about that for a second. Just this week,
• 29:17
  Speaker 1: Anthropic was talking about how it was going to drop
• 29:19
  Speaker 1: its safety pledge. It's a hallmark safety pledge that Anthropic
• 29:22
  Speaker 1: has had. They say they're going to drop it because
• 29:25
  Speaker 1: the policy environment, and I think that's key shifted toward
• 29:29
  Speaker 1: prioritizing the competitiveness and the economic growth within AI. While
• 29:34
  Speaker 1: those safety oriented discussions that you just referred to, I
• 29:38
  Speaker 1: haven't really gotten any traction, especially on the federal level. Again,
• 29:41
  Speaker 1: that sounds like a jury would have to step in
• 29:44
  Speaker 1: if somebody were to decide to sue over some sort
• 29:47
  Speaker 1: of safety issue. There is that what we are seeing
• 29:51
  Speaker 1: within the big tech community is that it is so
• 29:54
  Speaker 1: important to be more competitive and to have that economic
• 29:56
  Speaker 1: growth and to show those numbers that those to take
• 30:00
  Speaker 1: the time to meet those safety parameters would take too long,
• 30:05
  Speaker 1: and then they're going to mess up their economic growth,
• 30:08
  Speaker 1: and then that's where the jury step in.
• 30:10
  Speaker 3: I think the answer to your question is just look
• 30:12
  Speaker 3: at the actions of the different companies.
• 30:14
  Speaker 6: Go back to the run up to.
• 30:16
  Speaker 3: The elections in twenty twenty four, Remember how all the
• 30:19
  Speaker 3: AI companies were talking about, hey, we need to be regulated.
• 30:21
  Speaker 3: We recognize we need to be regulated. The election happens,
• 30:25
  Speaker 3: Trump wins. Now you're into an environment where he's very
• 30:29
  Speaker 3: supportive of those tech companies.
• 30:31
  Speaker 6: We don't have a lot of regulation.
• 30:34
  Speaker 3: And as I wrote about in the article, if you
• 30:38
  Speaker 3: decide for safety reasons you're not going to have a
• 30:40
  Speaker 3: design feature, but your competition decides to do it, you
• 30:43
  Speaker 3: can quickly go from.
• 30:44
  Speaker 6: Market dominance to an also ran. I mean think.
• 30:47
  Speaker 3: About at one point it was chat GPT has the
• 30:50
  Speaker 3: best day I then they were saying no, Gemini has
• 30:53
  Speaker 3: gone past it, and more recently with Claude and Cowork,
• 30:56
  Speaker 3: now Claudes got the advantage. So you've got this race
• 30:59
  Speaker 3: for market share and the companies are focused on that.
• 31:04
  Speaker 3: What are some of the collateral consequences of that when
• 31:06
  Speaker 3: we start having these conversations around safety. With what you
• 31:09
  Speaker 3: said about Anthropic being the latest example of that.
• 31:13
  Speaker 1: Something else you wrote on the Bloomberg terminal that if
• 31:16
  Speaker 1: AI can predict a user's of no ulnerability, the legal
• 31:19
  Speaker 1: argument is no longer we didn't know, but we built
• 31:22
  Speaker 1: this system designed to know, but we failed to intervene.
• 31:25
  Speaker 1: Is that the crux of all of this.
• 31:27
  Speaker 3: I mean when I look at it from my vantage
• 31:29
  Speaker 3: point as an attorney, and I look at what could
• 31:32
  Speaker 3: be potential claims in the current regulatory environment, we're talking
• 31:37
  Speaker 3: product liability, and then you get into what was foreseeable
• 31:40
  Speaker 3: from a legal standard standpoint, and if you built something
• 31:44
  Speaker 3: that you know is intended to predict, how do you
• 31:47
  Speaker 3: sit there and then say, well, we didn't know what
• 31:50
  Speaker 3: it was going to do and you didn't intervene from
• 31:53
  Speaker 3: a legal perspective, how would that play with a jury
• 31:56
  Speaker 3: in a court case. That's to me the question in
• 31:59
  Speaker 3: house attorneys need to be asking and why I put
• 32:02
  Speaker 3: in that piece that they need to be part of
• 32:04
  Speaker 3: the design team, not a patch that comes later when
• 32:07
  Speaker 3: these trade offs have already been documented.
• 32:09
  Speaker 1: That actually anticipates my next question. Those company attorneys, those
• 32:13
  Speaker 1: in house attorneys need to be part of this conversation.
• 32:17
  Speaker 1: But you know what that costs time and money? Is
• 32:20
  Speaker 1: that worth it?
• 32:21
  Speaker 3: Well, in the current regulatory environment, these cases are going
• 32:25
  Speaker 3: to start to put parameters around what that cost might
• 32:28
  Speaker 3: look like.
• 32:29
  Speaker 1: So you see more cases down the road.
• 32:31
  Speaker 3: I think you're going to continue to see that until
• 32:33
  Speaker 3: we start to get some type of regulatory guardrails, and
• 32:36
  Speaker 3: when you look at the overall regulatory environment, nothing's really
• 32:40
  Speaker 3: happening at a federal level.
• 32:42
  Speaker 6: So states are trying to step in.
• 32:43
  Speaker 3: You probably saw a few months back with Trump's executive
• 32:46
  Speaker 3: order trying to say, hey, States, get out of the
• 32:48
  Speaker 3: job of regulating AI. You're stopping innovation, while states are saying, no,
• 32:52
  Speaker 3: we have some real potential harms to our residents that
• 32:55
  Speaker 3: we're not willing to step back and not intervene to
• 33:01
  Speaker 3: protect the health and welfare of the citizens of our states.
• 33:04
  Speaker 6: That's the tension that you're.
• 33:05
  Speaker 3: Seeing when you peel back from these two particular cases
• 33:09
  Speaker 3: and kind of look at the landscape that's underlying it.
• 33:13
  Speaker 1: Finding a happy medium or finding a release of the
• 33:16
  Speaker 1: tension between the safety and the innovation is not new. Certainly,
• 33:21
  Speaker 1: it can't possibly be new. We've been going through this
• 33:25
  Speaker 1: for hundreds of years as far as innovation versus safety. However,
• 33:29
  Speaker 1: it feels different this time. Why does it feel different
• 33:32
  Speaker 1: this time?
• 33:33
  Speaker 3: Well, I'm going to take off my lawyer hat. I'm
• 33:35
  Speaker 3: going to speak to you from justin the dad personal hat.
• 33:39
  Speaker 3: All right, I think it feels different. Because society is
• 33:45
  Speaker 3: being so shaped now by digital technology, particularly social media, Instagram, Facebook,
• 33:55
  Speaker 3: also AI, and you can see some of the collateral
• 33:59
  Speaker 3: consequences of that are happening in our society, with tribalism,
• 34:02
  Speaker 3: people going to echo chambers people Perversely, these are designed
• 34:08
  Speaker 3: to create communities, but they're fracturing communities, and so in
• 34:12
  Speaker 3: my mind, from my personal perspective, particularly when I watch
• 34:15
  Speaker 3: my children interact with technology, I think that's why it
• 34:20
  Speaker 3: just feels different, because it feels like it's ever present,
• 34:23
  Speaker 3: it's everywhere, and it's influencing things. And the part that's
• 34:27
  Speaker 3: so interesting about it is it's not like tobacco where.
• 34:30
  Speaker 6: You could see the cigarette or you could see.
• 34:33
  Speaker 3: A firearm or what would happen here. It kind of
• 34:36
  Speaker 3: happens in this opaque, unclear fashion, but the consequences seem
• 34:43
  Speaker 3: to be real.
• 34:44
  Speaker 1: For most of this interview, we've been talking in general
• 34:47
  Speaker 1: about big tech. You just boiled it down to what
• 34:50
  Speaker 1: this case is about, which is social media and kids
• 34:53
  Speaker 1: being involved in social media, and the case of course
• 34:56
  Speaker 1: being about the addiction that kids might experience on social media,
• 35:00
  Speaker 1: different types of social media specifically. I believe Instagram was
• 35:04
  Speaker 1: named in the case. Do you see this having ramifications
• 35:08
  Speaker 1: for the future of how we as the public interact
• 35:12
  Speaker 1: with social media or how social media platforms present themselves
• 35:17
  Speaker 1: to the public from here on out.
• 35:20
  Speaker 3: I think how people engage with social media will not
• 35:25
  Speaker 3: change until people really understand how it works. And what
• 35:29
  Speaker 3: I mean by that is it's all works based on engagement.
• 35:36
  Speaker 6: They want you to engage.
• 35:37
  Speaker 3: They don't care why you engage, how you engage, but
• 35:40
  Speaker 3: they want people to engage on the platform, so they're
• 35:43
  Speaker 3: there a longer time.
• 35:44
  Speaker 6: And so.
• 35:46
  Speaker 3: You know, you can look at advertisement. But the thing
• 35:49
  Speaker 3: is what typically engages people. We know that's been documented
• 35:53
  Speaker 3: in research. It's things that get that draw an emotional
• 35:57
  Speaker 3: response to people, and a lot of that time that's
• 36:00
  Speaker 3: saying inflammatory things, saying the kinds of things that if
• 36:02
  Speaker 3: you and I are in the room together, I would
• 36:04
  Speaker 3: never say to you face to face, But when you're online,
• 36:08
  Speaker 3: people seem to feel differently about what they're willing to
• 36:10
  Speaker 3: say and not say.
• 36:11
  Speaker 6: So that to me is what has to change.
• 36:14
  Speaker 3: And then from a company standpoint, I don't know that
• 36:17
  Speaker 3: things are going to change until there's more regulations or
• 36:21
  Speaker 3: requirements in place, because it's a race for market share
• 36:25
  Speaker 3: and from what we're seeing from a decision standpoint, and
• 36:30
  Speaker 3: the public is when it comes to safety versus market share.
• 36:33
  Speaker 3: To your point, which one has been winning out consistently
• 36:36
  Speaker 3: with the decisions that companies are making.
• 36:39
  Speaker 1: Enter the juries.
• 36:42
  Speaker 3: When you have a lack of a regulatory clarity, you
• 36:46
  Speaker 3: have a harm. And we're dealing with a protected class
• 36:48
  Speaker 3: of people i e.
• 36:49
  Speaker 6: Kids. Where are you going? The torch system and the jury?
• 36:55
  Speaker 1: But golly, social media, big tech, it's all so huge, AI.
• 37:00
  Speaker 1: It feels like such a juggernaut. It feels a little insurmountable,
• 37:05
  Speaker 1: doesn't it.
• 37:07
  Speaker 3: It can because we're talking about some of the richest,
• 37:10
  Speaker 3: well the richest companies in human history, and so who
• 37:16
  Speaker 3: steps in and who can step in? I don't know
• 37:20
  Speaker 3: what you do besides regulation, because asking the companies to
• 37:25
  Speaker 3: just regulate themselves does that seem to be working.
• 37:31
  Speaker 6: Well?
• 37:31
  Speaker 1: At the beginning of this interview, you did mention how
• 37:33
  Speaker 1: the companies did come forward and say, hey, we need
• 37:36
  Speaker 1: to be regulated. Where is that at this point? How
• 37:40
  Speaker 1: is that working out?
• 37:43
  Speaker 6: Yes?
• 37:43
  Speaker 3: The answer to that is the consequences of the twenty
• 37:46
  Speaker 3: twenty four election and how that is played out. Because
• 37:50
  Speaker 3: the current administration seems to be taking it pretty hands off,
• 37:56
  Speaker 3: hands off attitude towards regulation.
• 37:58
  Speaker 1: It appears that there would be now new roles for
• 38:01
  Speaker 1: the juries, the courts, the in house attorneys, entirely new
• 38:05
  Speaker 1: landscape now until there is some sort of comprehensive regulation
• 38:09
  Speaker 1: in place.
• 38:11
  Speaker 3: I guess what I would say is absent regulation, and
• 38:13
  Speaker 3: given the potential harms to protected classes such as children,
• 38:18
  Speaker 3: we're shifting the responsibility from regulation to the courtroom and
• 38:24
  Speaker 3: the jury, is.
• 38:24
  Speaker 6: What I would say.
• 38:25
  Speaker 1: All Right, we're going to leave it there. Justin, it
• 38:27
  Speaker 1: has been a pleasure. Thank you so much for enlightening
• 38:29
  Speaker 1: us on this issue. Our thanks to Justin Daniels for
• 38:33
  Speaker 1: joining us a shareholder at Baker Donaldson. And that does
• 38:36
  Speaker 1: it for this edition of Bloomberg Law. Subscribe to the
• 38:38
  Speaker 1: Bloomberg Law podcast on Apple, Spotify, or wherever you get
• 38:42
  Speaker 1: your podcasts so you never miss an episode. I'm Amy
• 38:45
  Speaker 1: Morris in for June Grosso, and this is Bloomberg