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 lear