Press people you would not normally deal with and that can be very powerful theyre only interested of sorts can it have something to do with the defective force with tobacco use against teenagers say you do think that advertising is helpful to make that . Pdf. I fainted could be but you could not consider that an isolation so few take california with a powerful and very effective counter Advertising Campaign to help people understand the industry is not your friend we had billboards up and down the state they were paid for by a staff put Tobacco Control programs in every county in the state where people worked on the ground to have all full range of policies and programs that they were seeking. Said the campaign was part of that to you have to put that in combination with others. Remember how much spent on food advertising and Public Health. If we have those widgets to get of mechanics of advertising to work with those social norms and aspirations the same way that the markers do it is just a matter of scale sore they forced to have free time for advertising . And to make the effort for Healthy Products and then invest the money. But it is a different direction to be effective and. A key concept is whether the advertising is misleading or deceptive or if for children that could be inherent you do not speak to that directly but i interested of your thoughts and research. One says parts of a healthy diet to say if you give them this then children could read that to say it is the essential to a healthy diet but probably not. So there are some simple things like that. Jennifer has written on that is inherently deceptive because of their inability to understand the commercial choice of intent signed this isnt sold on health of friendship and popularity here life will be better in many will be popular. That is very powerful if you understand that. Thinks so much to the three of you oat saturday night the state of the black world conference discuss the impact of a 2016 election. Melanie campbell, executive director of the National Coalition for black civic participation and Mark Thompson of sirius xm radio make it plain. Even when we get together we have an agenda, we have to unite with other people to win. The object is to win. We dont want to struggle for struggles sake. There are hundreds of people in jail, dead, all kinds of things. We are not revolutionaries because it is fun. My mother and father did not the struggle for praise. The foundingy fathers and the purpose of government. The meaning of america is persuasion. The meaning of america is love. The meaning of america is building a better product or , orting a Better Service persuading someone to join your church or synagogue. Sunday evening newt gingrich, van jones and Patrick Kennedy discuss opioid addiction. People have changed their minds. They have to have some willpower. But they also have to change their brains back. This is a biological thing. Your brain is an organ. Once these doctors hand you these pills, you broke your collar bone, take these pills, a lot of people those pills damage that organ. Cspan, where history unfolds daily. As a79 cspan was created Public Service by americas Cable Television companies, brought to you today by your cable or satellite provider. More from this conference on regulating Food Marketing to children. This takes a constitutional frameworks that govern marketing to children including opportunities and constraints for legal responses to unhealthy Food Marketing. We are now going to pivot and move from science to law. We are very fortunate to have three law professors who are at the top of their game here today with us. Representing ucla, berkeley, harvard law schools, and led by our moderator jennifer pomeranz, who i will let introduced the panel. She is the clinical assistant professor at the college of Public Health at new york university. Jennifer thank you, michael. We have a very exciting panel. We will be getting into different legal issues, the First Amendment and ftc authority and then specific policy options by stephen sugarman. We will start today with jacob gersen from im sorry, we will start with eugene volokh. He will be setting the framework for the First Amendment and it is opportunities and restrictions on marketing, restricting Food Marketing to children. Then we will go on to jacob gersen. He is professor at harvard law school. Then stephen sugarman, professor at Berkeley School of law. Thank you. [inaudible] i am going to talk briefly about the First Amendment issues are raised here and then im sure we will have lots of opportunities to discuss some of these legal questions in more detail in the q a. Back in 1975, 1976, the Supreme Court first concluded commercial advertising is constitutionally protected. Its interesting to see how the political valence on this has shifted. On the court and in some measure in the public as well. Back then, it was very much a liberal cause page Justice Brennan was a major leader in this, soon to be joined by justice blackmun, who had been moving in a more liberal direction. Justice marshall was usually on board. The moderates, powell and stewart, usually work, too. The bacon center was justice rehnquist. Often, but not always joined by chief justice burger, oconnor, and sometimes justice white. Today, the issue has flipped in the court and among the public as well. Generally speaking, the most frequent recent commercial speech case we have was the five conservatives and Justice Sotomayor arguing in favor of broad protection. Three justices arguing in protection of a narrow one. All of the justices basically from the left, ginsburg, brian, kagan. The formal rule has excuse me, the legal rule has also changed over the years. In the mid1970s, it looked like commercial speech would get a lot of protection. From the early 1980s to the mid to late 1980s, it looked like the court was retreating from that, chiefly driven by the conservative wing. Since the 1990s, there has been more more protection for commercial speech. By commercial speech i mean commercial advertising. That is what that label means. It is not all speech sold in commerce. The formal legal test seem to remain what it was before, which is to be protected, commercial speech has to be not false, not misleading and their interesting questions what that means and not proposing an illegal transaction. Once we propose the speech is true and proposes a legal transaction, the government can still restrict it if it has a substantial enough interest and the law directly advances that interest and is no more extensive than necessary to serve the interest. That is the formal legalese, and it tells us virtually nothing. What counts as substantial enough, and more to the point, what is more extensive than necessary means those are legal terms that may sometimes help guide legal analysis but dont actually resolve problems before the court in any material way. The work is done by the precedents, by the particular holdings of cases, and the other doctrines announced at times, what counts as direct investments as such. Here is where we can get more directly to the question of Food Marketing and then bring the question of Food Marketing to children. The most helpful way of articulating modern First Amendment commercial advertising doctrine is that the government cannot restrict advertising because it is afraid that its recipients will be persuaded to make foolish choices. That was the decision in virginia pharmacy back in 1976. That is something the court retreated from in the 1980s, but one that too, and most forcefully in the 2000s and 2010. That is expressly stated by the court in the decision, and before that in the thompson decision. That is an important principle to keep in mind. If you look at this formal legal rule, you could say we have an interest in preventing people from drinking, lets say from drinking too much. And we want to completely ban alcohol advertising. Would that directly advance the interest . You can talk about it but the actual working principle, the principle that is doing the job, is this other principle, which is you cannot restrict advertising for a legal product simply on the grounds that you are afraid the advertising will be too persuasive. You may require disclaimers. That is one way which commercial advertising is different from other kinds of speech. But you cannot ban it for fear that it will lead people to make decisions that are bad decisions. That is the general principle. Of course, one question that arises with regards to general principles is are there exceptions for peoples whose judgment you dont trust . Or you distrust the judgment of most people . One obvious category for that is children. It turns out the Supreme Court has never told us what kind of restrictions in advertising aimed at children are institutionally permissible. But it has mentioned two important things. One outside of the commercial advertising context but also outside of hike politics. His is in the context of video games. Supreme court rejected the notion that the government has a materially free hand in restricting speech to children on the grounds that children dont know any better. Instead, the Court Applies the same test for restriction on violent video games being sold to children as it would have applied restrictions by lynn videogames sold to adults. In principle, it was open to argument that they were just so dangerous and harmful, they ought to be restricted nonetheless. In principle, it is open even for adults. In practice, it may take different kinds of evidence. But the court found even the evidence of the children insufficient. It demanded very high level of proof that the majority of the court did not find to be adequate. Interestingly, that decision was split in an interesting ideological way. The majority consisted of three liberals and two conservatives, and the dissent consisted of three conservatives and one liberal. The majority was Justice Scalia joined by justice kennedy, who had a long view on the court of First Amendment protections generally. And the ginsburg, stevens, at the time, and suter. The dissent was Justice Breyer from the left, chief justice roberts, alito. That is the context of commercial advertising. We also have from the court the decision where the court struck down a complicated case but for relevant purposes, struck down billboard advertising of tobacco. Basically made it impossible to advertise tobacco in virtually any area of this jurisdiction. The rationale for it was, you put it on a billboard as opposed to the pages of some adult magazine does not mean the same thing, a magazine aimed at adults. Lots of kids can see it, but lots of adults can see it. You cannot restrict the speech available to adults in any broadway broad way simply to shield the children. That is something the court had developed before. It applied it to commercial advertising as well. That is an important point because a lot of the kinds of restrictions in advertising to children i have seen, whether it has to do with food, violent video games, and the like, you look at the restrictions in advertising to children and things like advertising in any medium were at least 35 of the audience is children. If 35 of the audience is children, 65 is adults. The court has strongly signaled that you can restrict speech to adults at least in a substantial enough way in order to shield the children. That is an issue that will have to be dealt with. How much is too much . Hard to tell. What if it is an audience of 90 children and what if there is still lots of advertising that reaches adults . The court may say that is enough, that leaves enough channels to communicate to adults. But that is a legal issue. Let me close with one other thing to other related things looming over this question. Advertising of tobacco. Tobacco is totally prohibited for children. On top of that, certainly, many people, fortunately i have always been one of them just completely issue tobacco eschew tobacco altogether, particularly for their children. My feeling is very few people do that to sugar or white bread. Maybe they should. But that is not where our culture is at, not where judges tend to be at. There, it seems to me, more than any other areas, the dose is the poison. You should not be guzzling gallon after gallon of cocacola, but if you have it every so often, that is fine, so long as your overall portfolio of eating is good enough. That suggests that, in fact, for many of the recipients, even for child recipients, this is not only legal but also maybe not harmful, and if the kids do but their parents, they will say, one bar, fine. We will control how many you have. But these are not the things that should be totally cut off. I relet people may have different views, but my sense of conventional wisdom lets say not just science but governmentlinked science having to do with food has not exactly covered itself in glory over the last 50 years. Whether has to do with the food pyramid or the recurring questions about salt, questions about coffee, alcohol, a lot of things. There are certainly people who think that lovely looking donuts and muffins out there are actually pretty bad for you, and others would disagree. The bottomline line is, this is something that affects judges. Judges do not like the idea of the government playing the nanny, telling us not just what to do, but what to think and what to like by restricting what people can say to us. They are open in some measure to that when it comes to children because they do need nannies, but the suspicion is many people prefer the parents to be the nannies. But the market looks like this is not you should not be using crack cocaine, little doubt about that. But, well, people have different views. Some people want more dessert, some people want less desert. We are not really sure how much is too much. The harder it will be to persuade judges what they would otherwise see as First Amendment violations. [applause] thank you, eugene. Our panel is a law panel. I think that means we are trying to address three questions. What are the sources of law for Legal Authority to address Food Marketing to kids . What kinds of legal tools or mechanisms, at the states disposal or at our collective disposal . And what are the restrictions on exercise of that authority . Sources, mechanisms, restrictions. The professor has talked about some of the constitutional restrictions on the states ability to regulate speech in general, and more to the point, commercial speech. I want to largely set those issues aside, no note, the state of the doctrine as such. The government does restrict commercial speech all the time without running afoul of constitutional limits. The question is in what context and in what ways is that constitutionally permissible . That is the background. Now it is impossible to discuss this issue in this country, the agency, the federal Government Agency response to food advertising to kids without being in the shadow of the socalled rulemakings that occurred in the 1970s. It is fair to describe the aftermath even today for the federal trade commission as the kind of agency equivalent of posttraumatic stress disorder. This was a bad period for the agency. They were engaging in rulemaking to address marketing to kids, largely on the part of health and hygiene. A really easy scientific case, foundation, and the political hullabaloo that resulted was the sky had collapsed. It culminated in the enactment of a statute. Or in any substantially proceeding on the basis of a determination by the commission such as constituting an unfair act or rectus practice affecting congress. For those of us that study agencies and Administrative Law in general, this is rare. It is hard to get congress to do anything. To get congress to uniformly pass a statute telling the agency not to engage in the very thing they are doing happens, but it is not at all a norm. One conventional understanding of this statute is that it is a jurisdictionstripping statute. So sometimes on we discussed the issue come it is said the ftc no longer has authority, no longer has authority to issue a rule or regulation addressing food advertising to kids. I think this is just incorrect and i want to say a quick word about why and particular are cicely the things the agency has Legal Authority to do, even if there is not political authority, legitimacy, or will to do so. As many of you know, administrative agencies like the ftc, fcc, fda, are restricted themselves by three sources of law. First, the constitution. If congress can undo it, then the agency cannot do it. The agency cannot run afoul of the constitution anymore than the congress or president can. Second, socalled enabling, organic statutes. The ftc gives them authority and specifies what they do and how they may do it. Third, the administrative procedure act, the bible for the bureaucracy, which contains a set of required procedures and mechanisms the agencies must use to do certain things. The apa classifies everything the agency does into two categories, rules and orders. A rule means the whole or part of an agencys statement of general or particular applicability and future affect. A rulemaking is just the proceeding that must be used to issue a rule. An order, the whole or part of a final disposition of an agency matter, in a matter on our that a rulemaking, that is to say, if it is not a rule or rulemaking, it is in order. An order results from an adjudication. You can imagine when the agency is making a general rule, they are acting like congress, making a general policy that has legal binding on the world. When they are issuing an order, they are acting like a court, considering parties before it, speaking with particularity, usually in a backward looking way. Yes, this is very exciting. [laughter] what did you learn today . Well, mom [laughter] so what did you what does that mean . There is no issue to a new law as an unfair practice or law. But there are things they could do that would reach 95 90 of the goals. So for background and oversimplification, there are two basic doctrines. The fairness doctrine and the deception doctrine. That requires the conduct here, as it adds to kids is unfair and therefore illegal if it is likely to cause substantial injury to consumers, consumers cannot reasonably avoid it. And it is not outweighed by offsetting benefits to consumers or competition. That is the basic unfairness. By contrast, an ad or product claim label is deceptive if it is likely to mislead a reasonable consumer and the claim is material. So just looking at the statute, what can they do . They could issue a rule on food advertising to kids, not using the unfairness doctrine but using the deception doctrine. Thoroughly allowed. Secondly, they could issue a rule classifying food advertising to kids as unfair, using the unfairness doctrine, but using substantially different and presumably new evidence and though there would shortly be litigation, the agency would get deference over whether substantially similar in the statute allows for or does not allow for the agency to do this. And we have Supreme Court preference on point now. Third, the agency could issue a nonbinding guidance document. Essentially announce it. The agency interprets the deception policies to preclude advertising to children of a certain age or certain products. To be unfair and deceptive. And it would have no legal force in itself but it turns out that when you are a federal agency with Enforcement Authority and you announce that, you think the statute requires this particular conduct, a lot of people start changing their conduct. Im not a fan of this mechanism in general. On the record. But you know, i am honest. Force, the agency could proceed through casebycase adjudication. Individual actions against individual advertisements to kids. Urging, claiming, showing they are unfair or deceptive. We clearly still have that authority. And at first cut, the problem is that you go casebycase, product byproducts, company by company. You get a cease and desist order. Given the volume of advertisements and products we are talking about, it looks like an absurdist version of whack of mold. As though it is not surrealist to start. The only reason that might be wrong has to do with a weird bit of an Administrative Law doctrine. In the 1940s in litigation involving the fcc, the court said if the agency has both Rulemaking Authority and adjudication authority, which not all agencies do, they can announce general policy, binding general policy using other mechanisms. So agencies like the fcc regularly announced new general binding policy in the context of individual enforcements or adjudications. So if the fcc, in an action against a single advertisement or company were to conclude an entire class of food advertising to kids was unfair, i think the conclusion either could be or would be binding, generally on other ads, parties and on the agency itself and the future. All of which is to say that agencies that had the lead on this issue historically have plenty of Legal Authority here. And what it lacks is political will or desire to utilize it. Ok. If political will is lacking, as it understandably might read, what does law do . Usually, we try to take advantage of the national desires or incentives of the regulated parties rather than fight them. It is hard to go around to Tell Companies to stop doing things that make them a bunch of money. Presumably, they pushed back. So another thing we do is facilitate the process of Companies Suing each other, in order to stop these practices. One way to do that would ea statute. That statute is mostly about trademarks but it turns out another provision says that protecting persons under aged in commerce against unfair opposition. It creates civil liability for anyone who, in commercial advertising or promotion misrepresents the nation, characteristics or geographic origin of their goods or services and another companys goods and services. And without going too far into that in detail, the idea is that if you make a false claim about a product in a commercial advertisement, where false doesnt mean false but it is misleading or confusing. And that statement has an in tendency to deceive the audience then there is liability. And you can sue. Now this is not a citizen suit provision but competitors can sue. So you imagine lawsuits in which companies are suing each other for advertising to kids covered by the act, which would be a relatively straightforward legal case. And i think even i could win that case. And only people in this room will remember that it was an act like this that was at the issue of palm wonderful versus cocacola. Alleging that cocacolas description of its project, a juice project, was deceptive and the Supreme Court said yes, thats fine. So it does something but it doesnt do everything. What else might we do . Some of the act allows for citizens to sue you and you do see classaction lawsuits for Advertising Campaigns that are confusing or dissent to or fraudulent in this way. And what they depend upon our the merits of the claim and the mechanisms of the claims to start. So if a class aggregation system is working well than those suits remain viable. Now what this leaves us with is a question about remedies. When something is legally prohibited, the right question to ask is, what is the remedy . What is the remedy . What happens if i dont comply with the law . And in a lot of these cases will be talk about cease and desist orders, the remedy is that somebody says stop it. That is the remedy. Your kid misbehaves and we tell them to stop and faye stop. But that allows for recurrent misses of conduct you are trying to regulate and it is an inherent problem with that kind of legal remedy. Not so damaging, frankly. When people pay for the injuries they cause, that system works pretty well. Or at least, differently. In a similar vein, hopefully we can work it into the discussion later on. The other night, as i was working on this stuff, i was imagining, as i often do, a conversation between myself and marshall aliens. And martian aliens. [laughter] i dont know. What do you want for me . Childhood obesity is a huge problem that is Devastating Society and it has almost become the norm domestically and internationally. And were pretty sure the problem is that kids eat a lot of food that is bad and not eating food that is good. Aliens that sounds awful. What do you do about it . Us we are having a big political fight about it now. Some people want to make it harder for companies to advertise to kids on tv and internet and others think advertisers should exercise selfrestraint. Aliens so you are saying there is a really dangerous product out there that kids are putting into their bodies and the big fight is about whether to make it harder to talk about . The dangerous product . So you are talking about talking about the harmful product . On our planet, if something calls is a systematic harm, our company allows them to sue. And we provide disclosure that it is dangerous. And when it is dangerous when used in the way that is provided by anticipated sellers then we just ban it. When conduct causes injury or a product causes injury, we try to regulate the conduct. Not the talk about the conduct or discussions about the conduct. Aliens good luck. I will close with this quick anecdote. My wife said as i was heading off to the conference, what is it about and i said its great, it will be about food advertising to kids. She said isnt that a little narrow . And at first i got really defensive. [laughter][laughter] no, your narrow. I said, are you kidding . We arent even able to make a dent between all the work in the legal issues, we wont get anywhere in a daylong conference. But i got a little less defensive, not until the plane right here but on the plane because i think it is narrow in some sense. Because we are talking only about the way that we are allowing harmful and dangerous products to be advertised or marketed or talked about. And given the scope of advertisements we are seeing on tv, on the internet on games and in mobile apps, everywhere, i wonder if some of our attention might better be spent at next years conference on the underlying products themselves. We know a lot. A lot about which foods are good and bad for us and why. And maybe some of our attention should be spent on how to get more into the marketplace and into bodies and some of them out of the marketplace and out of bodies, as well. Thank you. [applause] i didnt pay jacob to set me up this way, but i would have, if he had asked. [laughter] several years ago, the government went after the Tobacco Industry for violating the racketeering act. An act aimed at the mafia, and they went after the Cigarette Companies and a judge found the Tobacco Industry violated an act which is a really serious charge. And i think it was 10 years ago, she found that they violated it and she was stymied by her bosses and in the d. C. Court of appeals as to what she could order as a remedy. So she decided to try to have them undo some of the bad things they did. Terrible marketing. So they were going to have to publish all of these advertisements and so on showing how bad they had been and ask for forgiveness or Something Like that. And i dont think anything has happened. The industry carried on its fight against this all these years. And i have to say i wrote at the time that it is interesting that she would focus on this as a remedy, as we just talked about what is the remedy, she had the power of absorbing the entire industry under the law although, it probably would have just been taken over by Japan Tobacco instead, but she could have put Philip Morris and reynolds and them out of business. What i said she should have done was, she should have ordered the industry to reduce tobacco smoking prevalence rates by one third. That would arguably upset the horrible market practices they had. If we didnt have this practices, we wouldve had a third less smokers. So how about they reduce the damage . This is what i will talk to you in a moment about with what i think we should do with respect to current food advertising to kids. I didnt do the kind of Serious Research that the Early Morning speakers did. I did my own kind of research. I carefully, on a promise of a two dollar reward, cross examined my sevenyearold granddaughter. And i asked her whether or not she watches television and she does look at ipads and so on and does she know anything about junk Food Products. And sure enough, to my surprise, she knew about always terrible products that we have heard about this morning. But as far as i can tell, she doesnt eat the products. But what ive learned is that it doesnt really matter. She is eating equally bad other stuff that she gets inside you to eat that is bad. Watching commercials. So i now know that when i go shopping with her to the berkeley bowl and she asks us to buy her ice cream filled japanese ice cream which is caused by bad food advertisement she has the watching on television, i didnt realize that. So it is clear that there is a lot of call now for us having to do something about the avalanche of advertisements. It is sickening to see them. And calls from Public Health leaders, like a number of the speakers here today, and what eugene said is overwhelming. You have to be careful not to cast this as the nanny state. We you know better will use government and then repair tries that as being a nanny state. I think it is much better to say that it is parents your demanding these changes. Parents want to be empowered to control their kids lives in some respects. And just like we say that, why do we not allow people to sell cigarettes to people under 18 or to sell alcohol, it is because parents dont want their kids to have this stuff sold to them and realistically they cant be affected to follow their High School Kids around all the time. And so we pass a law saying that you cant sell this stuff to them. It empowers us to get where we want. We want to expose them to mature and exposure to alcohol, we can do it but we dont want you. We want the government to help us as parents to be better parents. And i think this is how we ought to put it here. They want help. Not to tell parents what we should do but the question is, what do we want as parents . And i think what we want is to not deal with this and to be able to make better choices. We want to be empowered to have our children to actually eat healthier meals. I think there is a big difference there. The focus should not be on combating the marketing. The focus should be on the ultimate goal, having kids eat in a more healthy way. That is what we should look at. And so i think what we are to do in response to this title wave of junk Food Marketing to kids is to enact rules that parents would want, which will lead us to have substantially healthier eating by our children, by requiring our Food Retailers to sell less junk food that is eating my kids. You have to imagine this. The way to think about this is to think about the Climate Change strategy that we have which is called about cap and trade. Forget about the trade for the moment. Basically, the cap says that you have to have less carbon emissions. Thats it. Every year, less and less. Lower the cap lower and lower down. So it is the same for automobile gasoline. Every year you have to increase the amount of miles per gallon your fleet gets. These are strategies which in less than of industry to do what they do best but within government constraints. You guys figure out how to make the cars work at better miles per gallon. You are better at that than us. Follow these rules. You figure out with Public Utilities had to have less carbon. You have to have less and you figure it out. We insist upon the outcomes. That is what we are aiming at. Ive been saying this for a while now. We should say to the food industry, the retailers, by which i mean the walmarts and the safeways, the cost goes and other food supermarket chains and restaurant retailers in a substantial share, you have to reduce the amount of junk food that you sell let his eat my kids. That is what you have to do. And this regulation could demand these kinds of changes over time. So for example, a firm like walmart might have to be faced with the reality that for the next five years, every year, they have to reduce that by 5 , the amount of food they sell that is junk food and is consumed by children. So maybe it is five years or seven years, a 25 reduction in the amount of junk food they sell that is eaten by kids. And their competitors would have similar targets, although not exactly the same targets. We would measure how much junk food gets eaten by kids, how much is sold by them now. And the ones who have done a better job and you have a healthier package or blend of foods would have lower reduction targets and they would be rewarded for selling healthier food now. And the ones that have worse records now would have higher targets. And this would also have the effect of, over time, more of a coalescence towards the same through all this change as you how much they would sell of their product. That would be junk food eaten by kids. And after an amount of time, we would do a domestic reduction in the american diet by having a dramatic change in the amount of junk food that is actually sold that is consumed by children. This is the way to respond to this is not that difficult to determine because of barcode technology. What are the bad foods that can be labeled junkfood . Were going to figure out what it is a mere going to have this disagreement and we are to say, that is it. We will know better on the barcodes whether it is or is not geared walmart would be great if this. They are smart, they know how to the business, and they know sensible ways to change the mix. F what they sell idea, theye the cap might introduce it more than if safeway wasnd lousy at this, they could sell the excess the safeway. The goal is a 25 reduction. And taco bell and mcdonalds and gardengarden all of garden would have the same. By lets say 6 per year, the amount of junk food they sold period would automatically deem them as qualifying to reduce what they sold to children. Goodobably would be a proxy for children and adults as well, to have less consumption of this food. How they do this . It seems to me that is the point. The business would be very good at this. Walmart could introduce new products that are much healthier that are not junkFood Products and eliminate some from their stores. Some of the products they no longer would sell. They could get their suppliers to reformulate the products in ways we occurred about already. They could make all of those doritos healthier. They could change the package size. They could get the portion size different. They could engage in marketing where it is in the store. They could change how they advertise, most of all. They could advertise healthier things. They are a million things they could do. They could change the price of things feared they could raise the price on the junkfood and lower the price on healthy food. Theyre also the things they could do, and they would figure out the best way. Consumers might be relatively unaware of the fact that at the end of the year, they actually ,ook home market baskets shopping baskets of Food Products for their family that were healthier and they would be. These are small changes, but small changes over fiveyears are substantial changes. I dont see any legal problems. I dont think it would run into any First Amendment objections. Any othere constitutional limits, either. States could potentially try this out on their own. Hawaii is a nice example. I dont think rhode island should do this. Shopping inmight go connecticut instead. I do think a big stick to try it out as an experiment. It would be fascinating to see if government would try to encourage such a thing. Kids have already been saturated with the marketing. I think this could have more of and if we decided 25 was not enough, we could work on that. Possible lets take an of walmart. It is possible that they may find that they can take the in higher income neighborhoods, that would be bad if that turned out to be the case. I doubt it. I think the biggest gains would lie in changing the way they sold to stores in lower income neighborhoods. We have to be concerned about that. This is a parallel problem with the cap and trade thing. We dont want cleaner plants in the places were rich people live and 30 plants where the poor people live. They have to meet goals in both communities. This is a concern but i think it can be easily resolved. What is the political prospect . It sounds like such a dramatic change. Tell walmart to lose 25 of their junkfood sales. One of the political prospects of this . They seem daunting. Compared to what . , likeg as the rest of you my colleague sabrina, she is like an unbelievable swarm of bees at the industry. Death by uts 1000 cuts. As long as they are after them, they increase the soda tax. And want to make profits carry on the business, but if they are constantly under attacks, they may find my solution more appealing. Get rid of all this micromanaging of what we do. We want to sell our products, and as long as they are legal, quit telling us all this stuff. Say, ok, we will cut down. The bottom line, we can live with that. This kind of option more attractive to them, and i think that is a possibility. I urge the rest of you to go after them in the field, because i need you as a shadow i have to operate under. That i view it as response to the advertising response thatot a it is a response to be bad advertising. It gets parents what we want. Healthier eating. Thank you. [applause] thank you so much. The one line of cases you do not talk about are the attorney advertising cases. The Supreme Court is harsh on attorneys and theories that they are trained in the art of persuasion, which is exactly what the marketers are. Can you talk about that . Attorney advertising is constitutionally protected. It was not only something that was very broad but deeply embedded in the legal profession. If there was any kind of regulation, you would think that the justices would be open to it , and it became very much a class issue. If you are allowed to advertise and you did, that was very low class. Despite that, the Supreme Court has uniformly held, the one exception is a weird anomaly, nearly uniformly held that attorney advertising is constitutionally protected. The misleading advertising has been restricted. The Supreme Court has understood that anything can in principle be labeled misleading, so their boundaries to that, but if somebody said, i guarantee results, that is not just misleading, that is a lie. Likewise, there are limits to the ways that lawyers can betray themselves portray and suggest that is going to end up being the nearly certain result. Beyond that, lawyer advertising is constitutionally protected. Just apply this to other advertising. If somebody says, this serial is fantastically good for you, it will cure all the ills you, or inn that it is much less sugar, and if it turns out that is wrong because it has more corn syrup, that can be misleading. Will say, this is delicious. Foodss what makes these dangerous, they are delicious. I think the lawyer cases if anything cut the other way. Thank you. One more question for jacob. You mentioned the administrator procedure act role making authority, but my understanding is that the fcc has a different ule making authority, more like a 10 year period. That is what i dont like. I dont think there is a specification of the fcc rulemaking. I mean historically, it is taking a long time. They can be very involved. Sometimes it takes years and sometimes it takes a few months. [laughter] i dont know why the rest of you did not laugh at that. Overall, weve done some work on this, sometimes for some rules it is quite long and for others it is short. There ishe idea out that for a Foreign Agency to do anything, it takes a decade, and what a waste of time. That is just not true. Even when you factor in litigation. It truly is a case that was higher profile, higher controversy matters, involving more players and parties who participants want to be engaged and challenge litigation. There is no question about that. I do not expect the federal agency to solve this issue, but there is Legal Authority to do so and we should understand that as part of the context in which we are operating. Thank you. Any questions from the audience . A question for jake appeared for those of us who prosecute false advertising by large companies, what do you see in your Current Research and collaboration as some Current Issues that might be ripe for prosecution . For example, the mounting evidence against sugar as computing the sony chronic diseases. O many chronic diseases e. The short answer is no, but it exists already. If you look at the litigation in the california courts right now, it would cover probably 90 of the things i imagine for false advertising or deceptive claims. It is true in some other states, but it is clearly happening here. Those are primarily civil suits, to be clear. Depending on state law, they could be brought by the state, i suspect in california they could be, but i dont know the body of that law as well. Ofve seen a massive influx classaction attorneys into this area. My view is that they have not yet found a theory that will get them home that they are trying everything you can imagine. Shocked if one or two of these cases and subsequent ones dont come back to the plaintiff side, but overall to this point, i would not say they are wildly successful. What might change that significantly is that the companies had not withheld information, such as with the nicotine and tobacco addiction issue. Sway whetherally it was particularly relevant or not. But im to speculate. But i am a just speculating. A followup question. There are lots of advertisers out there. Let us assume that there were no advertisers that would be considered misleading under the definition of misleading, which is somebody lying or suggesting something about health that was not found. Lets say therefore, all of the promoters of junk food could not say, could not downplay the sugar. He could say several grams of sugar, i am not sure how much. What if they started saying yes, we have lots of delicious sugar. What practical effect do you think that would have . To think that would materially change the habits of children that would lead them to consume less sugar . I am not sure, but we can find out. One of the things i should mention is that we are doing an annual food survey where we do a lot of experiments with labeling and particular claims like this and ask about changes in perception of the underlying product and also purchasing behavior. So when you see the grams of sugar, what effect does that have . When we add the percentage of daily recommended amount of sugar, what effect does that have . They are starting to come back, we have scattered results. It is preliminary. It is an easy question to ask and answer and there is no reason we should speculate. We should ask and answer that question. If it turns out a claim like that we opt out of the fraudulent, intercepted claim deceptive claim. But if it is a truthful claim that it impacts behavior, we ask that. It does not allow for a legal claim against the company, but we want to know what effect it has on consumption. When suspicion is that people talk about misleading and im sure theyre genuinely misleading claims out there, my suspicion is that a lot of what is going after this , if only we could get people to know the truth, they would say, oh my god, there is all the sugar that i do not want. Oh, sugar, that is what i want in my food. My suspicion is that there is some attempt to use this misleading argument is a way of suppressing even vertically nonmisleading advertisement. As a way to sway judges. You can shoehorn this restriction on something that is not misleading but we just like it. Onthe letter may happen, and the former, the data we have is it significantly impacts the desire to purchase based on the labeling. That is what weve been finding. There is an advertising where theyre doing that, maybe somebody is analyzing it. I would like to talk to the ag later. Hello, i am katie from loyola law school. Im a tax expert. Im wondering about the role of tax proposals to several of the problems we have discussed. If one of the problems is exposure to marketing, there is a tax proposal we could make. Ofcould extend the period time over which marketing expenses are deductible. There currently deductible in full in the year which incurred, as other assets have to be capitalized and abducted over a 15 year period. Short of eliminating the direction, we can increase the. Of time increase the period of time, thereby increasing the price of marketing, which would reduce exposure. We could also make a tax proposal to encourage reformulation of products. We could tax unhealthy foods, not just soda, that all of healthy foods, and provide subsidies to healthier foods to encourage reformulation, and of course we have to start with some kind of classification system. To avoid problems with crossborder transactions, i think we would need a federal system of food classification, Something Like front of package and labeling. Im wondering what the panelists see is the role of tax and regulation. Policy panel is going to be talking about taxes of it. There was a bill about taking away the taxdeductible really of the marketing of unhealthy foods. I will say, it doesnt avoid the institutional question, it recast the institutional question. Taxing something just because you want less of it or removing the Tax Exemption that is generally available to most that is expenses, generally available to business expenses. Generally the things you do to sell something is tax deductible. You remove that because you want to have less speech, the courts see through that and say it is a speech restriction. It may be permissible for some other reason, but there have been attempts to recast speech restrictions as taxation and they have been struck down. My proposal to eliminate the my proposal is not to eliminate the reduction because i think that kind of objection could be raised because business expenses are generally deductible. My proposal is to put marketing expenses on exactly the same footing as the deductibility of other legitimate Business Capital that produce a asset, something with value beyond the close of the current tax year. Er current law, the debt the deductibility of marketing expenses is tax favored relative to expenses to great Capital Assets. Originally, marketing was immediately deductible because we were talking about the cost of placing a newspaper advertisement saying, sale this saturday. Now marketing expenses is primarily branding, which is a capital asset, which should be advertised like all other assets. Itshould be amortized that increases the price of the marketing. Im not talking about eliminating the deduction, im talking about reducing the tax savings and present value for the expenditure i increasing the period of time over which it is deductible, which is consistent with all other Capital Assets which have to be amortized. One of the suggestions, at least in the alternative, maybe i misheard this is a common issue. You can sometimes character is that characterize the same thing in two different ways. Argumentsplausible why it could be seen as ordinary expenses. It could bring about more sales tomorrow. I will say, it is an interesting question to what extent legislative purposes make a institutional claims, there are some interesting and complicated case law. When a judge looks of this and says, this is not part of an overall attempt to rationalize the treatment of capital investment, it looks like somebodys trying to suppress speech they dont like. Not suppress, have less speech they dont like, i suggest the judges will Pay Attention to that. But it is true that if you can point out them that this is a departure from basic, sound tax logic, and we just know havent to discover it and now we are going to return, maybe you can persuade them. Do have a question appear . Up here . I think the tax proposal, i think it was a very clever one. I take it on its own merits. I take it as applied to all marketing, not just speech advertising, and also all products, not just junk food, so you run into a lot of other local opponents, as well, not just the food industry. It sounds right to me as an economic matter, the changed nature of marketing, but i dont think it would be just speech advertising. The broader ideas of it applies to all marketing, then sure, that would have less of a First Amendment problem, but i was assuming that would not be so. It would be difficult politically. Speaking of difficult political challenges, steve, im not sure how you get that kind of legislation passed of having a cap is not trade, regarding junk Food Marketing to kids, and also, you suggested there might be an alternative to the 1000 bees being sick on the food industry. In the soft drink industry, where the soft drink companies have set a goal of a 20 reduction in calories that they sell by 2025, and in britain they have a quicker schedule of reductions. And might 5 by 2020. It might be 25 by 2020. Aim tosico is going to have three fourths of their beverages under 100 calories per serving. There is some voluntary movement in the direction you are suggesting good ive not seen the candy industry and im not sure what other products you consider junk foods, but there is some progress along those lines. When we say voluntary standards or guidelines, we dont ever mean that. There is no voluntary standard adopted, there is a standard adopted by private industry or parties in the shadow of government regulation. The question is, what is the threat on the other side such that private parties decide to engage in a scheme of selfregulation with particular standards, and what the government will or wont do is what the public is talking about. But to think of it as voluntary and apart from that shadow is not entirely right. I think the more people that would get behind my proposal, the more we would have voluntary [laughter] the industry did agree to reduce the amount of calories that they sell. They have more than exceeded their goals. It turns out the given the nature of the industry, they probably did not change anything because they were headed in that trajectory anyway. I think it is right that pepsi would agree that not only three fourths of the beverages under 100 calories, but if they would agree to three quarters of the sales would be under 100 calories. Goals, wen meet these are to be excited about them. And marlene will still unleash her 1000 bees and say it is not fast enough, and i think that is appropriate. Are you coming from my state . That is what a lot of people outside this room suspect is what is going on. There is talk of her stripping advertising to children, there is talk of restricting butrtising to children, what we are maybe after banning them. Jacob admireat seem to be saying that. That could be wellfounded. As i understand, under your proposal, walmart would have to restrict what is being sold to the first who consumes more junk food than anybody else in my household is my wife, who is an adult. She is not obese, she would probably be healthier if she decided to eat differently, but she is choosing to enjoy life in a particular way. All for junkt is food, and we know better, but my suspension suspicion is that it starts with the doritos and eventually it is the steak and other things. A lot of people have political reactions to this because they feel they know where it is heading, and where it is heading is a pervasive attempt to change through restriction in making it much harder not just for children but for adults to eat what we want to eat and make the unhealthy choices we want to make. Now, tell me that is not where it is going. That is where it is supposed to be going. That is the point. But no individual choices being prevented. Your wife can still eat as much a she wants. Walmart. Get it at that walmart would know if it sells enough of that your wife, they have the high demand, she would continue to do it. The people who are the most unhealthy would continue eating the way they do, but others would eat less. , it is like Blood Pressure. If you can reduce the National Blood pressure by five points, you have a Huge Population impact even though people with very high Blood Pressure may not get much reduction. You still get a very big population game. The same thing here. You try to leave individual freedom as much as you can, but for the overall population, there is health improvement. That is that were trying to achieve. , we would have a National Dietary gain. Effectrying to have an on society as a whole and the freedom to do what they like. It would be bad to take that away. I concede, i am guilty. Steak, that is not a junk food. Am glad to hear you are leaving people some freedom, im sure people would be satisfied with that. All the way in the back . Going back to the discussion about unfair and deceptive , the courtsclaims use a reasonable consumer standards as to whether advertising is likely to deceive a reasonable consumer. This whole conference seems to be focused on kids and the vulnerabilities of children and advertising targeted to them. Consumer standards i would imagine are based on adults youd to a need based on adults. W