power testifies at a house hearing about promoting u.s. foreign policy in the united nations. nations. today the supreme court unanimously ruled that prosecutors must show that defendants accused of selling synthetic drugs knew the doctor ugs in this question were illegal. the case centers on the conviction of steven mcfadden for selling bath salts designed

to mimic the effects of chemically similar narcotics. the case heard oral argument mcfadden versus united states in april. this is an hour. we will hear argument this this morning in case 14378 mcfadden versus united states. mr. russell. >> mr. chief justice, may it please the court. the briefing in this court has narrowed considerable the disagreement among the parties. we now all agree that the fourth circuit ms. con struns the men's real for a criminal offense upped the controlled substances analogue act. we further agree that the jury instructions begin in this case were ear these. instead, we government now agree that to prove an offense the government must show that the government knowingly distributed an a log. which showing noeg that the substance in question had the characteristics of making it an analog under the statue tut. over the government's alternative theory that it can show that the defendant knew that the substance was illegal

or regulated. if all the government means by that is illegal or regulated under the statute of con vic the controlled substances analogue act itself we would agree that the government would simply lose because as its acknowledged the evidence tended to show that my client did not believe that his conduct violated the csa itself. >> just to be sure i understand all you're agreeing on rjs you do agree that if the defendant knew that the substance was illegal under the controlled sub is stands act or the analog act even though the can defendant didn't know the chemical structure or the particular effects, say that the dealer had handed him a box and said it this is our new analog which is illegal under the analog act, you agree that that is sufficient for a conviction? >> we do agree with that. i think that that is simply a special application of the general rule that the defendant has to know the facts that make his conduct unlawful because he knows in that circumstance the only fact he needs to know in

order to know that what he's doing is illegal. >> in and that sounds sensible to me. what about the expert testimony from chemists, is that still put on in the trial if does the government still have to show -- put on an expert to say, well this is chemically modified but it's sub shael similar and the i didn't remember sits there knowing that it doesn't have to listen to this? >> they to have to show that. the government still has to prove that it is in fact an a log. >> but does the jury have to understand the chemical testimony? >> they've got to make the determination that it is in fact chemically substantially similar. i acknowledge that that's a lot to ask of a jury or a lot to ask of a defendant to understand that. >> it is the government's burden to show both composition in relation to the controlled substance and the -- the affect of the drug. those the government must prove but what we have out of the way is that the defendant now doesn't have to know -- you

agree, the defendant doesn't have to understand the chemical structure? >> he doesn't have to understand the chemical structure if the government can prove that the defendant knew that the substance was illegal under the controlled substances act itself. >> the government has given up a lot getting to this point and i think you've just given up a lot. i would have thought -- your position that you have to know that's regulated under the chemical substances -- controlled substances act, it seems to me is contrary to the proposition that ignorance of the law is no excuse. if you didn't know -- i didn't know this was regulated you would say he's innocent because he didn't know the law. i thought your position was that you do have to know as in all the other cases in the men's ray area the facts that make your conduct illegal. you don't have to know that's illegal. >> that is certainly our principle position. we are willing to say however, whether you consider it a special exception to that rule or a special application to that rule, if the government can show that the defendant knows that

the substance is illegal under the statute of conviction that serves searches the basic purpose of the knowledge of fact requirement. >> and if he doesn't know he's innocent? >> if he -- >> if he's ignorant of that law he's not guilty. >> he's not guilty unless the government can show that he knows the substance has the characteristics of an a log which n. which case his ignorance is not an excuse. he can prove the facts, factual knowledge and the way this court described in staples and in other cases involving prohibited items. we're willing to acknowledge if they can, instead of that, show that he knew that this is illegal under the statue that's good tough enough -- >> i take it that's the same as under the controlled substances act itself, is that right? that's the analogy. that you can either show the person knew it was heroin or you can show well, the person didn't know it was heroin but the person did know that it was some drug that was on schedule 1

of the -- of -- in controlled substance. >> that's right. where we disagree with the government is that it construes some of the lower court cases that say that as saying the broader thing, which is -- >> i'm sorry. you keep saying knowing that it's illegal under the act. he doesn't have to know the act, he just has to know it's illegal. that some law regulates it, otherwise he's not going to know what the number of the law is or the controlled substance act. >> let me be clear -- >> i mean criminals don't care, this he just know that it is -- they mayt's a controlled substance. >> no. i would disagree with that and i think that's the principal of this agreement we have with the government here is that it's not enough to show that the defendant thinks that it's illegal generally or that it's unlawful under an import statute or state law. >> the government would say if he's selling it without paying the sales tax he knows that that's illegal. that's enough to convict him under the controlled substances

act. >> potentially i think that that may be the argument. so we give the example if in our brief of somebody who knows he's selling cuban supports in violation of an import ban. he knows in that case that it's an illegal or clold substance but that knowledge doesn't equate -- you wouldn't say that somebody in that case knows he's selling a controlled substance simply because it turns out that the cigars have marijuana in them. that's the not the way that you would use the english language. you wouldn't say he knowingly sold marijuana or a controlled substance. >> let's take a case involving a drug that isn't an log, a drug that's actually listed. let's say the facts are the distributor gives it to the person who is who is being to make the distribution and says this is an illegal drug go distribute it and the person then goes and distributes it and tries to evade law enforcement and so forth, is caught. now, is it is it it -- is that sufficient -- is that evidence sufficient to take the case to the jury so the jury can find --

the jury can decide whether there's circumstantial evidence that the person who distributed the drugs knew that it was a controlled substance under federal law as opposed to one of the few things that is illegal under state law but not under federal law. >> yes, i think that's sufficient evidence to go to the jury. the jury then, though has to decide whether to make that inference. in a case like this where the defendant puts on evidence that he in fact didn't believe it violated federal law, or if the defendant is able to explain, yeah, i thought it was illegal because i thought it was in violation of an import statute, then it's up to the jury to decide whether to believe that. if it does it ought to conclude pens ray wasn't established until they can show that that he knew the characteristics of the substance that made it the analog. >> what if the employer tells the dealer this substance produces exactly the same effect as cocaine? would that be enough to satisfy the men's ray requirement? >> it wouldn't be enough to satisfy it.

it might be evidence from which the jury could draw an inference that the defendant knew that it was a controlled substance under federal law. i don't think that they should. i think it's only partial evidence. >> you say he has to know the chemical makeup that causes it could be an log, right in. >> he either has to know that or know that it violates -- >> let's assume that he doesn't know that it violates the law. he also doesn't know that -- what the chemical makeup is but he knows what it is. it is mvd-3. that's all he knows. now, under the controlled substances act that would be enough. he wouldn't have to know the makeup of it. he would just have to know it's one of the named controlled substances. if indeed md-3 is an a log, why isn't that enough? that he just knows what it was and what it was is an a log. >> i think that's pair a log to

somebody knowing that he has an ar-15 rifle which is a machine gun. in staples this court said that isn't enough, you have to know the facts about the gun which makes it an a log -- or a machine gun. >> this isn't a rifle this is n fact, an analogue of a controlled substance. it's not a proper comparison. he knows the identity of it and that chemical has in fact the characteristics that make it an analogue. >> he knows -- knowing simply the name of it doesn't tell you whether it's an analogue or not. >> that's true and knowing that it's cocaine doesn't prove that you know it's and a controlled substance. >> it does, though because the only fact that you need to know about cocaine for it to be a controlled substance is that it is can't because that's the fact that makes it illegal. it's listed on the controlled substance act and the controlled substance schedules. so if it's cocaine you know

everything you need to know based on the presumption that you know the law to know that what you're doing is illegal. >> suppose the distributor gives it to the person who is going to distribute it and says, here distribute this and there's the actual chemical formula on the container and it's the chemical formula for pcp, whatever that is, c something h something -- so that's all a person knows. he knows exactly what it is the chemical formula. has he not committed a crime, then? >> under the word controlled substances act? >> yes. >> i don't know. it depends on how it's listed in the schedule. i think the schedule might in fact list the chemical name. >> it does list the chemical name. >> then i think you do know the fact that makes the conduct unlawful. >> the person has just arrived from mars and has no idea what -- you know, whether it's legal or not. >> i think the basic assumption is that people know what the law

is. they know what's in the schedules. and if you know what's in the schedule and if you know the fact, that's enough i think to convict. >> the actual facts of this case, that is the defendant gave names to what he was peddling he called it speed, new up a replacement for the listed -- now listed approximate mpd. these were supposed to be bath salts but there's no bath salts in the world that cost what those packets cost. so what -- what do we make of what he was advertising this to be? speed up, and selling it at a price that fits a controlled substance. >> i think what it reflects what a jury could find it to reflect is that the petitioner

thought he found a loophole to the federal drug laws. as long as something was not listed on the schedules, even if it had druglike effects he could sell it and sell it at whatever price the market would bear. certainly the government can point to that kind of evidence to suggest that he knew that his conduct violated the controlled substances act. >> i thought you said that that kind of evidence was enough to get you to a jury. >> yes. >> that the defendant acted fewer tifl or that he sold these for incredibly inflated prices, that all of that it's not the thing itself, but it's evidence of the thing that the government is trying to prove. >> that's right. and i think it gets to the jury but it doesn't prove what the government has to prove here which is harmless error beyond a reasonable doubt. >> if i can just understand i meaning, i think -- tell me if i'm wrong -- that the only thing that's possibly separating you and the government we'll see if it's separating you and the government is this question of what happens if the defendant knew it was illegal under something other than the csa or the analogue act right?

and that's the only point of potential difference between you and the government. >> i think that's true with respect to our legal interpretation. i will say we also think that you ought not to reach that because of this entire regulated status theory was raised the first time in the government's brief on the merits in this court. >> wait a minute. you do differ with the government on that. >> yes. >> but assuming that the government cannot prove any belief in illegal at the government would not say it therefore must prove of that you knew the chemical composition of what you were selling. and you say you have to know the chemical composition. >> right. i think we're all on the same page. just to be clear about our position, i think that the only disagreement about the meaning of the law between the government and us now is this question of whether it's sufficient as a matter of law for the government to show that the defendant believed that the substance was unlawful under some law other than the csa. they think that's sufficient, we think it's not sufficient. >> okay.

>> beyond that -- >> assuming it's not sufficient what else does the government have to prove? i think you differ on that. >> i don't think so. i think the government fwraes that one way to prove the men's ray in this case is to show that the defendant knew the characteristics of the substance that made it an analogue. >> which means the chemical competition s. igs. >> yes. yes. >> and who would that reach other than the chemist, the underground chemist would be in a position to know that but an ordinary person would not. >> i acknowledge that giving this had statute what i think is a straightforward and traditional reading does make it substantially harder for the government to prove that men's ray for an ordinary layperson. >> my understanding -- well, the government will tell you but my understanding of the government is it would be enough if the defendant knew the name -- the

name of the drug that it's blue fly or whatever else and if indeed that drug has the chemical composition. >> i'm pretty confident that that's not their position. >> okay. >> that they've said the opposite. >> so shows the court instructs the jury that it suffices if the defendant knows that this is an illegal drug because of its had a louis jen nick effect? >> i don't think -- again the critical question is illegal drug. if by that you mean illegal drug -- >> know that it's an illegal drug because of its had a louis jen nick effect. it seems to me that should suffice for men's ray i can't. >> just to be clear -- >> excuse me. and then it's shown that this is chemically similar. >> i think that the court would have to tell the jury that you can take into account the

defendant's knowledge of its had a louis jen nick effect in deciding whether he nude it was illegal under the controlled substances act itself. so what i'm quibbling with is just the unadorned word illegal. i don't think it would be sufficient if a jury was convinced that the defendant it's an hallucinogenic effect and illegal under state law. i don't think that a jury could if it if you believe that find the men's ray i can't established unless they went under this factual knowledge prong that's the ordinary way in which knowledge unlawful procession of a prohibited item is proven. >> the instructions on page 14 of your brief in footnote 9, can you save that by adding just a sentence or two to the first paragraph paragraph. >> no, because -- >> or is it beyond hope or -- >> no i think -- you will recall that this is setting forth the elements. so i think the element is that the defendant has to know that

he's distributed an analogue and then there's questions about ways in which to prove that. i think the jury -- the court could give an instruction of the sort that we proposed which said that the defendant has to know. that this is an analogue within the -- has the characteristics to make it an analogue within the meaning of the statute. it could have also begin instructions or the government can show that the defendant knew the conduct was unlawful generally. and you can make that -- or unlawful under the csa itself. you can reach that conclusion based on circumstantial evidence including evidence concerning the defendant's knowledge about the drug's effect. but there's a world of difference between saying that this is relevant circumstantial evidence about whether the defendant knew that he was violating the statute of conviction and what the government's position is, which is once you prove that the defendant knows that it's illegal at all, you're done and the jury is compelled to conclude that men's ray i can't is established and i think that that's simply wrong. >> i'm sorry to put you through

this again but it's important i think for me anyway to get it right. i understand your understanding that the sg -- there's a big difference, the sg says you have to know it's illegal under any law, you say no under the csa. what was the other way in which you disagree with the government? >> i think that's the only way in which i disagree about the meaning of the statute. >> i thought you were disagreeing about names and characteristics. >> well, i was disagreeing with justice scalia. i don't think we're disagreeing with the government because i think they've said under the knowledge of identity approach they have to show that the defendant knows the chemical structure and effects of the analogue because it's not enough to simply know its name. so i don't think that we disagree with each other on that point. >> can i ask can mr. russell about your difference as to whether it's under this statute or under any statute? if you look at some of the instructions that are given just under the csa, not analogues, that some of the instructions just say that you need to find

that the defendant knew that he was distributing some kind of prohibited drug. they don't say a drug prohibited under the csa. so if we use that as the analogy here, that would suggest that the jury wouldn't need to find the analogue prohibited under the csa and the analogue act but just that they know it was prohibited by something. >> right. i think that there is an m big out in those instructions whether referring to unlawfulness generally or under the csa. i think courts what they really mean is under the csa n in the cases where the defendant has come forward and said actually i thought it was illegal and there is some other statute in hassan and hussein and the case of morale less, three of the seven cases the government cites for this proposition the court has said, no that's not good enough. and that makes complete sense. now, it could be in a lot of

cases the government is going to present evidence that the defendant thinks it's a controlled substance generally and we can agree that the jury can infer absent other evidence that he thought it was illegal under the csa itself but you have to leave open the possibility that a jury can in a case like this say actually, no, the evidence doesn't show that he believed it was unlawful and you the csa because he looked at the scheduled and believed if they weren't on the schedules they weren't illegal. the only legal if they are illegal and not on the schedule is the analogue act. i think a lot of people didn't. in the community where my client was selling these things, these things were being sold openly in dellees and gas stations, they were being advertised in local newspapers and magazines. that's consistent with the fact that lots of people entertain the incorrect notion that if something is not on the schedules and it's legal to sell. >> and you don't defend that, right? i mean ignorance of the law is no excuse. >> it's no --

>> even though you're totally ignorant that it's on the analogue act, if you know the chemical composition and it happens to be on the analogue -- covered by the analogue act they've got you right? >> let me try to make clear my position. we agree that if the government can prove that you have the factual knowledge that the chemical has the characteristics that make it an analogue ignorance of the law is no excuse. >> wait. what does that mean? >> so -- >> i know all of the chemical characteristics, okay? i have to in addition no he that those characteristics make it an analogue? >> no. >> okay. >> so there are three options, the one is that you proposed, they know the name of the -- >> right. you reject that. >> we don't think that's enough. >> right. >> they know that the substance a is sem clee subs that will to a substance. they have to know that's substantially is similar and

represented actual fact. >> i mean i'm not a chemist, i don't know that it's substantially similar but i do know what the chemical composition is. i have to in addition know that that chemical composition is substantially similar in. >> yes. >> i don't think so. i think if i know the chemical composition and in fact that is substantially similar, we've got you. >> i think we disagree about that. it if you take that view we still win this case. there's no evidence the petitioner knew anything about the chemical structure he was selling here. >> i assume your argument is simply it's a kind of coincidence. you have to know that this substance is an analogue, and there are two ways you could know that. one way you know it is you could know what the chemical composition of this is and what the chemical composition of say, cocaine is. that want one way. very few people other than chemists know that. then there is a second way you could know. the second way you could know is that you know that it is

forbidden by a law which has the title forbidding analogues. and if you happen to know that it falls within that, of course you know it's an analogue because you know it falls within it. and those are the two ways. >> yes. >> no one has been able to think of a third. ignorance of the law is no excuse, has nothing to do with this case. this is just a coincidence that those are the two ways you could know it was an analogue. >> i certainly agree that those are the two ways you could know it is an analogue. i don't think that the government did can even argue that it satisfied that burden in this case much less that the jury would have been compelled to find that -- >> but you say that the government has to prove knowledge of two chemical compositions, the chemical composition of what is being sold but also the chemical composition of one of the items on the list of controlled

substances. >> yes. yes. that is our position. >> but only if that's the government's theory. only if the government goes that route rather than the route of just saying you knew it was an analogue. >> that's correct. i will acknowledge that going the knowledge of identity route in an analogue case is going to be difficult for nonchemists but i think it's difficult for reasons that should not give the court pause which is simply that it's difficult for somebody to know, even if they know what the law is whether what they're doing is illegal or not. so, you know our theory has the benefit of avoiding entirely the vagueness problems that we think are inherent in this statute. >> but there was enough evidence in in this case to go to the jury under the instruction that you want? >> yes. i will agree that there was. so the only question here is whether there should be a new trial under which we can have another discussion with the district court about what the proper instructions are, i don't think we will have a lot of disagreement about that, or whether the court should instead

hold that they are harmless and it would be unfair to do that in the ground grow under that petitioner didn't present sufficient evidence to rebut an argument the government wasn't making in trial. this court could, i think, quite he is easily resolve this case by saying as justice briar did here is the legal rule there are the two ways in which this can be proven but the government in this case to the extent it has some special new theory about illegal under some other law has waived that argument by failing to reserve it. if i can reserve the remainder of my time. >> ms. harrington. >> i find mr. russell is almost correct about the extent of the disagreement that's left in this case. our position is not that we can prevail if we can prove that a defendant believed that his conduct was illegal under some law other than the csa or the analogue act our position is that we can prevail if we can prove that a defendant knowingly distributed a drug and that he believed that his conduct that his distribution of the drug was

illegal generally. as justice -- >> my question that i posed to him is really for you. >> would you mind repeating it? >> well i'll try. suppose you have to show -- and i think you do -- that the defendant did know it is an analogue, say, to cocaine. there are two ways you could do that, the first way is you could show that this defendant being a graduate in chemistry knows what the chemical competition of cocaine is, knows what the chemical composition of this other substance is and knows they are the same. you're not going to be able to do that very often. >> right. >> another possibility is you could show that he knows that this particular substance is banned by a law that is called the analogue act, because obviously it if he knows that it is banned by the act that bans

analogues it must be an analogue. those are two ways you could prove knowledge. so prove that it is banned by the anti-turkey shoot act proves nothing about his knowledge that this is an analogue and, therefore, once you say, as you are trying to say i think that some other illegal at is enough to convict, i no longer understand the argument. >> well, the argument as justice associate meyer pointed out, they to tend to know whether what they're doing is illegal or not. our view is that the intentional standard in section 841 a describes a culpable state of mind. one way to prove that culpable state of mind is prove that the defendant knowingly or intentionally engaged in the act -- >> then you are saying that the defendant does not have to know it is an analogue and that i think you don't want to say. >> well -- >> because you could think it was banned by some other act and

that would make you know that it is that thing that the other act bans. it doesn't tend to show it's an analogue. >> what i'm saying is defendants tend obl that what they're doing is illegal not under any particular provision but generally they believe it's illegal. >> that's not what the statute says. the statute doesn't say knowingly be a bad guy. it says knowingly manufacture, distribute or dispense a controlled substance. >> yes. >> that's what the knowingly applies to. so you have to know that it violates that law, not just know that you're a bad guy. that -- that's not what it says. >> in almost every context the easiest way to prove knowledge of this kind of statute is to profit that the defendant knew the facts that made his conduct illegal. >> right, under the statute. >> just to prove the facts, he doesn't have to have any awareness of the statute, but if he knows the facts, which would include the chemical structure that's usually in other context the easiest way to prove

knowledge under this kind of statute. in this context that's not the easiest way. we think there is another way. the knowing or intentional standard described the culpable mental state, this court has said that to prove knowledge you don't have to prove -- >> the cuban cigar that turns out to be filled with marijuana -- >> well, i guess our primary submission is that it's sufficient if the government proffers that a defendant distributed a drug and that he believed that to go so was illegal under some drug law, that he knew it was some kind of illegal drug. >> it has to be under some drug law. you didn't say that before and i don't think your drug said it. it has to be illegal under some other drug law. >> let me point out the reason there's not as much explanation in the brevis there's a fundamental disagreement that we disagree with the petitioner what the courts have done in the csa context. we think it's sufficient that if a defendant believes what he's doing is illegal under a drug

law. we think it would be consistent with broader principles if the court held nor broadly that he believed his conduct was illegal generally. you don't need to go that far in this case. >> but the problem -- i mean, that highlights what i think is the practical difference here. you've got a defendant who is obviously knows something is out there, he's trying not to do something, whether it's not to violate the csa or whether it's not to violate anything and you just want to be able to show to the jury look, something is bothering him, he knows that something is afoot and that's all you want to have to prove as opposed to he knows he's violating either the csa or a drug law. >> well -- >> and i don't know how that works. i understand how that works in this case because you just say to the jury look, he's checking the schedule every day, he's doing this he's doing that, but i'm a little concerned about extending that as a general matter where it doesn't have to be the law -- one because i think usually it's not a question whether you know anything about the law at all

it's whether you know a question about the facts and whether that happens to bring it under the law but then i don't know how broad the principle is that you just have to know what you're doing is -- would raise a doubt in the jury's mind about whether you knew it was legal or not. >> i have two types of responses which i will point out. the first is a dock trinl point and the is second a real world example. the dock trinl point is that this court has ruled there are other ways to prove knowledge other than a defendant knew a critical fact. the government can prove willful blindness, the reason you allow willful blindness to substitute for knowledge is not because being willfully blind to a fact is the same as knowing the fact, it's because they have the same date of mind as the person who knows the fact. a person who engages in an act intentionally and believes doing that is illegal is at least as culpableable as the person who knows the facts that make his conduct illegal.

>> what if its violating a sales tax law, you're going to send him up the river for 15 years? >> we don't think the court needs to hold that in this case. we think it's sufficient if the government can revolver that the defendant knowingly distributed a drug believing it to be illegal to do so whether or not he knew what provision of law -- >> it's illegal because am fact, it's bad for animals and the law involved -- prevents veterinarians are from using this kind of drug for animal treatment. that's all he knows. that's all he thinks. now, he's guilty of this statute? that doesn't tend to show at all that knowledge that he knows it's an analogue but in your view because he feels guilty, as perhaps he should, he's guilty of violating this law. >> well we do believe that that would establish the necessary culpable state of mind. >> can you give me any authority for that? i mean your example of willful blindness is an example of where, in fact in respect to

this law he knows there is a risk he is violating doing the conduct that it forbids, he knows there is a serious risk and he pays no attention to that at all. >> well, we do think -- that's not a very strong analogy, i don't think. >> well, but i think what it shows is that you don't have to prove actual knowledge of a fact to satisfy a knowledge standard in the statute. we think it would be perfectly sufficient for the court to hold that when the government proves a defendant is distributing an illicit drug for human consumption and believes what he's doing is illegal and he's correct about that then that is enough to satisfy the csa or the analogue act. >> it might be except that there's some evidence in this case different than what you're saying. he checked according to his brother, the controlled substances act, didn't see this listed. and also he was told something was illegal, he flushed it down the toilet. so why don't we leave this to

the court below to figure out whether the error was harmless or not given the evidence in the case. >> i acknowledge that is that is the court's usual practice and we won't have any problem with the court doing that here. we do think the evidence you point to tends to show that he may not have believed he was violating the csa specifically, but there's plenty of evidence to show that he knew and correctly believed that what he was doing was illegal. he sold his products in baggies and vials -- >> i'm sorry, he has it to know that it is a controlled substance. >> he has no know that it's a controlled substance analogue, where we differ -- >> not even an analogue because plenty of people sell things thinking it's maybe cocaine but in fact it's crack, or they sell something else thinking that it's a different drug. had they just know it's a drug. >> we are 100% on the same page. i think -- >> you keep saying has to know

it's an analogue, i think that's wrong. he just has to know it's a controlled substance. >> but by controlled substance what we don't mean that he has to know that it's illegal under the controlled substances act. that's -- that's not our position. >> is this a real world problem? this sounds to me like most artificial distinction that i've heard in a long time. does virginia have an analogue act, this is from virginia right? >> yes. >> virginia are have an analogue act that's different from the federal analogue act? >> i do not know the answer to that question. >> do the states typically have analogue acts period or do they have analogue acts that are different from the state analogue acts? all of these cases unless this case involves a chemist your proof that the person knew the thing was an analogue is going to be that this person engaged in all kinds of officer testify conduct to try to hide it from law enforcement. so it's going to be for the jury to determine based on circumstantial evidence whether the person knew that this thing

was illegal under some law and if it's not the federal controlled substances act i don't know what act it's going to be. the defense is going to be well, you know i knew that it was illegal, but i thought it was illegal under the state analogue act it wasn't illegal under the federal controlled substances act. that what we're worrying about here in. >> i think that gets to the point. the way you sort of characterized with a might be the right instruction, that you have to prove that the defendant through it was relieved it was ilg legal under some drug law we're fine with that. petitioner would like the instruction to be that the defendant knew it was illegal under the rays or under the analogue act. >> the question i'm asking practical question we've got the federal controlled substances act the analogue provision. what is this other body of law that might come into play ear? >> i think our point is that most defendants aren't aware of any body of law. they just know what they're doing is illegal.

so we shouldn't have to prove that he had a specific -- the specific statute of conviction in his mind. >> ms. harrington i take your point that this is going to have a very small practical effect in terms of what either the prosecutor or the defense attorney is putting on at trial but it actually seems to me to be a real thee kret cal difference which has implications far beyond this case. what mr. russell has suggested is two ways of showing that a defendant knew a fact that the fact that he was distributing an analogue and you might know it because you know the chemical structure and all its property or you might know it because you know, you know, somebody has given you a box and said this is an analogue prohibited under the analogue act and so you know that it's an analogue. so those are two ways of knowing a fact but you are saying that in addition to knowing a fact the men's rae is satisfied if you can just show that the defendant knew he was acting

cull much blee in violation of some law and that it seems to me is a theory that could be put on to any law, that in addition to knowing all the facts that a statute says you have to know, the government has an alternative way of proving its case which is just to say, oh look you were acting cull.blee. you knew you were doing something wrong. >> yes, and, again you know, we would embrace a narrower articulation in this case of what your knowledge of illegal at has to be if you know you're violating a u.s. drug law -- >> suppose he thought that there was a labeling law and he was vie laying the labeling law. he's wrong. there is no labeling law. but it violates the analogue act. guilty? >> under our view that would be sufficient. we don't think the court needs to reach that in this case because there's no suggestion that he -- that his belief in illegal at was that he was doing anything other than distributing an elicit drug that he was violating some u.s. law. >> so just to clarify, you are

saying it's not just any legality it has to be a drug law that's a qualification. >> we're saying at least for the purposes of this case that is sufficient. >> what do you mean by purposes of it this case? what is the law generally? must it be a drug law or could it be any law? >> you should give it up ms. harrington. >> let me try one more time. we think it would be consistent with the way this court has treated other men's rae issues such as, you know willful standard. >> i don't think the problem is with your articulation. i think the problem is we're sitting here thinking of examples like, you know there's an anti-bird hunting statute and says you cannot hunt green-i had turkeys and the guy has never heard of that and you say, okay, i don't know if this is a green-i had turkey and gone yon if it violates the green-i had turkey statute but maybe it violates something. that sounds like an odd principle even if you limit it

to all laws concerning birds. do you see the problem? am i suddenly worried the government is going to start skull king around in the bushes. >> i think that has not turned out to be a real world problem. i certainly understand the court's concern i do think in the willful context that that has the court -- brian said that's sufficient if the defendant correctly believes what he is doing is illegal he doesn't have to have any sense of what law he's violating. willfulness is generally thought to be a much higher pens ray i can't standard than knowing or intentional. although this court has never address this had precise session, the penal code and brown commission report have em based the idea when you satisfy a higher men's rae statute you have satisfied the lower. we are embracing a narrower articulation -- >> you say you're embracing the narrower articulation, but it seems to me that's just a case-specific one, justice alito is right it's hard to see how

that could make a difference here, but i think it would make a world of difference when you expand it to the other cases involving men's rae. when you get to that point it is an ignorance of the law situation. in all the cases involving men's rae we do not ask whether you have any idea whether it violates the law or not. >> well -- >> and your position makes it much ease why err to convict people because you don't have to show that they even knew the facts that made their conduct illegal. all you have to do is say that -- illegal under the law that they're being charged. all you have to do ask say they did something that makes it look like they knew that -- they did something that makes it look that they were suspicious and if we can find any law in the united states code that makes what they did illegal we can prosecute them for what we want to prosecute them for, even though they didn't know that the facts fell under that provision. >> well, you have to prosecute them for the actions they actually took that broke the law. >> yes, and part of that

prosecution is you must show that they had the second sit men's rae. what you're saying is we can show that simply by showing the jury that they were acting suspiciously. >> i don't think that's quite correct. we have to convince the jury that the defendant in any case believed what he was doing the relevant conduct which in this case would be distributing the drug violated the law was illegal. you have to prove that beyond a reasonable doubt. just merely suggesting to the jury that a defendant was acting suspiciously is not going to get the job done am in most cases. i do think in most context it it is easier to prove that a defendant knows the facts that make his conduct illegal than it is to prove that he was doing was illegal. >> what's the best case you can give us to help? in more asset the defendant didn't know that the surplus shell casings belonged to the government and he was exonerated because he had to have an intent. suppose that he didn't know they belonged to the government, but

he thought that was it an illegal casing because it was dangerous, and he was wrong about that, could he be prosecuted then. >> we think he could be. all of the cases in that mine, the more asset and staipless all of those cases involved people who genuinely believed what they were doing was innocent. we had to construe the statute so it didn't sweep in people that were innocent. >> is there a case you have -- >> so the easier cases where the defendant really truly believes what he is doing is illegal and those cases it tend not to come to the court. there are some statements in brian, brian was about willful standard but also discussion of knowledge standard. in brian the court said the government doesn't necessarily have to prove that a defendant knew what he was doing was illegal. i think the use of necessarily there suggests at least leaves open the possibility that if the government did prove that then it would be sufficient. the court also said -- >> that's the best you have? >> the court also said in brian that the defendant -- that the government merely needs to prove

knowledge of the facts that make his conduct illegal suggesting that that's an easier standard for the government to meet. >> just to follow up quickly on justice kennedy's hypothetical, what if he knew he was trespass trespassing but he went on to the government property and took the casings, you have to show he knew what he was doing was illegal. he was trespassing the sign said government property. so we can convict him for taking the shell casings. >> we would tie it more correctly to the conduct that actually violates the law. if he needs to know that the taking of the shell casings is illegal, not that some ancillary conduct that brought him to the shell casings was illegal. so here we would say the defendant needs to know that the distribution of the drug is what's illegal. we think if you look at the -- i think we're on the same page with petitioner in suggesting that the same standard should conference csa and analogue cases, we just disagree about -- >> let me try this out. start with a drug that is on the

list. all right? the defendant knows the chemical composition of a drug that's on the list. the defendant has no idea that this is on the list. knows nothing about the federal drug laws the person distributes it intentionally, knowingly. that person has violated the law. the person's ignorance of the fact that this is a controlled substance is irrelevant. am i right so far? >> yes, because he knows the identity of the drug. >> he knows what it is. >> yes. >> he knows the chemical composition, he knows the name. all right. now, let's assume we have a list of analogues. it's the samg thing. if the defendant those that the thing is on the list, knows the chemical composition of it and it turns out that this is an analogue, that is sufficient. that's not going to be the proof in most cases. i think maybe the confusion is that a defendant's knowledge of the illegality of what he or she is doing is not something that has to be proven circumstantial

evidence that the person knows that the thing that is being distributed is something that is on the list. >> again there's no list in the analogue context. >> i understand that, but it makes it easier to understand if we imagine that there is. >> yes. so, no we agree. our position is that if we can prove that it a defendant knew what he was doing was illegal, that's a way of proving that he through he was distributing a controlled substance analogue or a controlled substance -- >> but it's not something that you have to prove. you don't have to prove that he knew that it was illegal under federal law or under state law or under any other law. you have to prove that he knew that it was a is substance that constitutes -- that, in fact constitutes an log, but the fact that he knows that it's illegal under federal law is circumstantial evidence that he knew that it was something that fell within that definition. >> yes, and it might help if it i could give you a real world example of how this has worked in the courts of appeals under the can csa. there's a number of cases in the

courts of appeals dealing with a substance called khat, khat is a plant that's born grown in the who were of africa, it gives a stimulant effect. fresh leaves of khat contain a substance called cafinone which is a schedule 1 substance illegal under the csa, produces amphetamine effects. khat is legal in many places in the world, it's illegal to distribute it in this country because when treasury picked it contains a schedule 1 substance. the number of cases where the government has prosecuted people for distributing cafin ichlt chlt ne defendants have said i didn't know it had cafinine i was distributing khat. the courts of appeals have uphold those convictions based on there was proof that the defendant knew distributing the khat was illegal did -- >> the light is drawing

slightly. don't say i'm stating your argument correctly if i'm not. >> okay. >> you're saying first he doesn't know the chemistry. so he doesn't -- he has no know it's an analogue but he doesn't know the chemistry. you're saying of course if he knows that it is illegal under the analogue act, that's good enough because he knows it's an analogue. >> yes. >> now you're saying if he knows it's illegal generally under the drug laws, that should be evidence of the fact that he knows it's an analogue because, let's ask him, why do you think it's illegal under the analogue -- i mean, why do you think it's illegal under the drug laws? i'm going to tell you it's not a listed substance, why could it be? and he'd sort of be stuck there because he doesn't way to say because it's a lot like cocaine. >> right. >> because once he says because it's a lot like cocaine he knows it's an analogue. and using my far out examples it's not because he thinks it's

a veterinarian law. is this right, if i follow your argument, you'd say the fact that he knows it's illegal under the drug laws it's an analog, but he's free to come up, if he wants, with some kind of basis for saying that even though he thought it was illegal under the drug law, he thought it was illegal under some other law that had to do with postage stamps or something, the jury believes he should get off, is that right? >> that's a correct interpretation of our narrow argument. if we can prove that the defendant believed what he was doing violated some drug law, that's enough to prove that he knowingly distributed an analog. >> what was some drug law be other than the csa and the analog act? >> in the federal context, there wouldn't be, but our point is really that the defendant generally does not have a specific law in mind. he just knows what he's doing is breaking the law. when the petitioner says we have to prove he knew he was violating the statute of conviction, that's much too high of a burden.

the only time you do that is when you have a willful standard in a tax aversion context. just general knowledge of illegality -- >> illegality must relate to drugs? >> pardon me? >> the illegality must relate to drugs? >> that's certainly sufficient when the government proves that the illegality relates to drugs. >> and sufficient is not just evidence that he knew it was an analog. it's inclusive evidence. >> we think that's correct. petitioner suggests -- >> even if he comes back and says, yes, i thought what i was doing was wrong, but it wasn't because i thought this was an analog. it was for some other reason. >> we think if he came back, for example, and said i thought it violated virginia controlled substances act, because some states control more drugs than the federal schedules include, but i didn't know it violated a federal drug law, we think that

would not be a defense. some knowledge that you're violating a drug law is sufficient. we think in this case, there is actually -- >> you say sufficient. how about necessary? is it necessary -- is the drug -- is the law that he thinks he's violating, the drug law, is that necessary? >> again, we think that a broader view would be correct, but we're perfectly happy with the willingness in this case that it would be sufficient. we don't think there's a basis for limiting the knowledge of illegality to drug laws. as long as you tie the conduct to belief in illegality we think it's enough. with you think it's definitely sufficient for this case to hold that when the government proves a belief that he's violating drug laws, that's enough. >> the conduct is related to the genus of illegality? >> right. >> i think there are areas where criminal defendants try to tailor their conduct to fall within, if they're captured and caught, particular laws but not others.

i recall cases where that's true. hypothetically, let's say they know this much marijuana or cocaine is a misdemeanor, if they get up to this much, it's 15 years mandatory minimum, so they structure their activities to fall in the lower level. you would be able to prosecute them, according to your theory for the big 15 year mandatory whatever, if they happen to go beyond the misdemeanor amount. >> certainly, yes. if the defendant believed he was distributing one pound of cocaine and it turned -- i don't know what the right numbers are, but say he believed he was distributing one pound and turned out to be distributing five pounds of cocaine and there's a different sentence that applies for five pounds, if we can prove he distributed five pounds of cocaine, that would be sufficient. >> what does that do to the theory? what they have to know is it's illegal under the drug laws. what was illegal, what they knew was, the misdemeanor amount, and you say, well, it doesn't matter that they -- doesn't matter that

they didn't know they were distributing the larger amount. >> i took your hypothetical to know he knew what he was doing was illegal. >> he knew it was a misdemeanor because of the amount. he didn't know it was going to be a felony because he didn't know he had that much of the drug. >> in the argument, if he knew what he was doing violated a drug law, that's sufficient. if he thought what he was distributing was oregano and it turned out to be marijuana, we think that wouldn't be sufficient, because he would believe a what he was doing was innocent and wouldn't have known the facts that made his conduct illegal. in this case, there are plenty of facts to show that the petitioner really believed what he was doing was illegal and it turned out he was correct. he sold his product in little baggies and vials instead of having more traditional commercial packaging. he charged $450 an ounce for these products which sort of undercuts his belief he thought they were aromatherapy products or things you would pour into a bathtub. >> you can only charge what the market will bear. if it has the same effect, if it

has the same effect as cocaine, even if it's perfectly legal, you should charge $400, don't you believe in the free market? >> not in the illegal -- the free market works in the illegal context the same way it works anywhere else. but i think there's evidence he knew what he was selling was a drug, and an illicit drug. >> all he knows is that it would give you a high, and he was charging what people were willing to pay. >> he also acted furtively. he hid the product on his website. he wouldn't answer direct questions from his customers about the high for the controls substances. we think there's sufficient evidence to show the petitioner in this case -- >> the petitioner's counsel agrees there's sufficient evidence to convict. >> i think he has a different view of what a proper instruction is. i understand the court remeadowlands for general application and harmless error. i think that would be appropriate in this case because the government didn't act for

this instruction, and then it was defending a harsher instruction it was given in the case. >> how do we -- when the jury is told that human ingestion is enough, he has to intend that these bath salts are not put in the bathtub but to ingest, that's all that -- that was the only mention that was charged. that was the men's ray --. instruction that the government requested because that's what they said was enough, but the instruction that was given to the jury to find he knowingly distributed a substance that had the same farm collagical effects of a controlled substance. >> let me start with the instruction. justice ginsburg, under the government's interpretation of jury instructions as requiring the jury to find that the defendant knew about the

similarity, the government acknowledges it didn't require any knowledge about the similarity in structure. the government has acknowledged that this instruction here was inadequate, even under the government's new view of the law. and so the question here is simply, whether or not they're entitled to take advantage of that and make a harmless error argument based on a theory that they only developed in this court. with respect to the general legal questions, let me start with addressing their broad any law will do position. as i understand them, it is premised on their thought all it requires is culpable state of mind. that's not what the statute says. it doesn't say distribute an analog culpably. it says knowingly. this court has repeatedly said knowing requires knowledge of the facts. and there may be an exception we have discussed that you can meet by showing there's knowledge that the law of conviction itself, but there is no precedent from this court that gives prosecution the option

that nets the facts made it unlawful or that he acted culpably, or knew that the conduct was unlawful under some law. with respect to their fallback position that it has to be illegal under a drug law, we're getting closer. we would agree if they were to say, as some courts have said, including a case that they featured prominently in the brief, it has to be a federal anti-drug abuse law. now, the truth of the matter is there's only one of those, but the value in that articulation is that it makes clear that the defendant doesn't have to know the name of the statute. but if the government's position is that it's enough that it's under state drug abuse laws. there are lots of state analog acts, and there's lots of states that have been ahead of the government in putting on their schedules things that are analog, including some of the substances in this case, that's clearly not what this court has ever had in mind in interpreting the word "knowingly" and it's up

to congress to decide what is culpable enough. when it uses the word knowingly, it's going to get the same interpretation it has in the past. the government points to cases like bryant where the court has said in in addition to knowing the fact, you must also know something about the law, and it says that, you know, willfulness is enough to establish knowing distribution. but of course, in those cases, it's not something they have general knowledge of, they also know the facts. >> if the defendant knowingly distributes heroin, doesn't have any idea it's illegal, nevertheless has violated the law, i don't see why the rules should be different with respect to an analog. >> i don't say that it is. i think that -- >> the defendant doesn't have to know the legal status of the drug. >> again, we're talking about the government's alternative. the government always has the option. >> state law calls it an analog, and he know he's violating state law, he knows this is an analog. >> well, if he knew he was

violating a state analog act that had the same definition under federal law, you could then ask the jury to infer that he knew that he was violating the federal law, but most of the time, as my colleague said, the government's evidence is simply going to be that the defendant knew the conduct was unlawful somehow. >> i'm not sure that you answered justice scalia's question fully. >> i'm sorry. >> go ahead. >> so justice alito, the government never has to prove the defendant's knowledge about the law if it proves he knows the facts that makes it unlawful. what we're objecting to is the government's alternative route to showing men's raya. we agree to the point it's enough to show the defendant knew it was violating from the state law or perhaps some provision of the fda, which regulates substances independent of the controlled substances act. as a practical matter in most cases, what the government -- the proof is going to be what the government described, which is simply that the defendant engaged in furtive conduct that suggests he knows the substance

is illegal, and unless the defendant comes forward with some reason for the jury to think that in fact he had in mind that it violated some other law, or in fact he looked and came to the conclusion it doesn't violate the controlled substances act, the jury is likely to find mens rea establishes and we don't have problem with that. and just to finally address the fact of this case. the fact my client was distributing things in baggies rather than vials shows he's doing it from his home business. the fact he's charges large prices shows he thought he found a loophole in the federal drug laws. there's no reason in the world why he would have flushed his product down the toilet when he discovered it contained a substance on the schedule if, in fact, he knew that the other products were illegal and didn't care. >> thank you, counsel, the case is submitted.

"chicago tribune" columnist clarence page will join us. we'll take facebook comments tweets and phone calls with a dedicated line for charleston residents. live at 7:00 a.m. eastern on c-span. here are some of our featured programs this weekend on the c-span networks. on c-span saturday night at 8:00 eastern, supreme court justice ruth bader ginsburg on national issues like gay rights, race relations in america and the production of a new movie about her life and career. and sunday night at 6:35, a profile interview with presidential candidate texas senator ted cruz. on book tv on c-span 2, saturday morning at 10:00 eastern we're live for the annual roosevelt reading festival at fdr presidential library and museum. authorizes including christopher o'sullivan, harry hopkins, sheila collins and her book "when government helped."

and marley manning on how books helped the moral of military in world war ii. sunday night at 9:00 on afterwards the need of a sexual revolution in the middle east. this weekend on american history tv on c-span3, we're live from the gettysburg college civil war institute annual conference on the civil war's end and aftermath. saturday morning beginning at 8:30 eastern with university of california los angeles history professor on general grant. at 11:00 holzer on abraham lincoln. sunday morning live coverage at 8:30 city college of new york history professor gregory downs on the consequences of the civil war. later at 11:00, a discussion about treason and loyalty during the civil war with penn state university history professor william blair. get our complete schedule at c-span.org. >> on tuesday, agriculture

secretary tom vilsack spoke about child nutrition programs and the healthy hunger free kids' act which is said to expire on october 1st. house education and workforce committee considering a reauthorization of that law. congressman john kline shares this two-hour hearing. >> a quorum present on the committee, the workforce will come to order. good morning secretary vilsack. welcome to education workforce committee. thank you for joining us to discuss and issue i know we all care deeply about that's providing low in come children and families access to healthy meals and snacks. we know the important role nutrition plays in development and education. as i've said before it's just common sense if children are hungry or malnourished, they are

less likely to succeed in the class roochl that's why the federal government long invested in programs that aim to provide most vulnerable students the nutrition assistance they need. ensuring children have access to healthy food is a goal we all share and lies at the heart of our effort to reform federal child nutrition programs many of which are set to expire later this year. we have conducted several hearings and briefings as well as rules and regulations that dictate state and local levels. what we have learned from students, parents school nutrition professionals, government watch dogs and other key stakeholders and, yes, even the department of agriculture is that the latest reauthorization of federal child nutrition laws is the most far reaching and costliest in a generation. current law requires a department to prescribe how much money for meals, what food can and cannot be served in schools and how much of it can be served. in other words, washington is

responsible for deciding what and how much our children eat. these regulations created an environment where students are not getting the nourishment they need and food and and taxpayer dollars end up in the trash can. president of the association conveyed to the committee the concern she's hearing from nutrition specialists across the country. described how regulations resulting in harmful consequences that threaten ability of schools to best serve students. she went on to decry the smarp increase in costs and waste student decline and lunch participation under the new requirements. we're often told 90% of participating schools are complying with the law. first as we learn from the government accountability office it is highly like lily this number is overly optimistic. but let's not forget that schools that choose to participate must comply with the law. the question isn't how many schools are in compliance. the question is at what cost?

the company estimates that participating school districts will be forced to absorb $3.2 billion in additional compliance cost over a five-year period. to make matters worse, fewer students are being served. since the regulations were put in place, participation in the school meals programs has declined more rapidly, declined more rapidly than any other period over the last three decades. but 1.4 million fewer children being served each day. i saw this is challenges firsthand during my visit to the prior lake school district in savage, minnesota. students described smaller portion sizes and limited options left students hungry and more likely to buy junk food. after students petition the schoolboard, fire lake decided to drop out of the school meals program next school year. it is the only way the school can meet the needs of its students. and the problems with the law do not stop there. the office of inspector general for the department of agricultural and the gao identified examples of programs

misusing taxpayer dollars raising serious concerns about whether or not we were actually assisting those in need. as we work to reauthorization federal child nutrition programs, we muft find solutions that will ensure taxpayer dollars are well spent and children are well served. we know developing a one size fits all approach is not the answer. more mandates and more money are not the answer, either. instead, we should look to improve these programs by giving states and school districts the flexibility they need to fulfill the promise of child nutrition assistance. from the not for profit organization share at a recent hearing, quote it's critical to remove bureaucratic barriers and remove did he physician says that cause kids to go without. how we achieve that without imposing more burdens on our schools. again, mr. secretary, thank you for joining us to share your perspective on these important issues. i look forward to our discussion with that, i will now recognize the committee's

ranking member, mr. scott, for his opening remarks. >> thank you, mr. chairman for holding this hearing. today we'll discuss the implementation of the 2010 healthy hunger free kids act as well as policy ideas for the upcoming reauthorization for the child nutrition act. i'd like to thank our secretary of agriculture, mr. vilsack, for being with us to discuss this important issue. more than 60 years ago through the enactment of the first federal child nutrition program, the national school lunch act of 1946, congress recognized that feeding hungry children was not just a moral imperative, but also an imperative for the health and security of our nation because so many of our youth were malnourished and not prepared for military service. in 1946, the 79th congress passed the national school lunch act, quote, as a measure of national security to safeguard the health and well being of the nation's children and to encourage domestic consumption of nutritionus agricultural

commodities and other food by assisting the states through grants and aid and other means in providing an adequate supply of food and other facilities for the establishment, maintenance and expansion of nonprofit school lunch programs. today we're faced with another crisis that impacts our nation's national security. our children are now too obese to enlist in our nation's military. one-third of children in this country are obese and overweight and childhood obesity has tripled over the last 30 years. according to one report, our nation has the highest rate of childhood obesity costing a shocking $190 billion a year. this not only weakens our economy, it increases our budget deficits. all segments of our population are affected, school, low income families, those especially vulnerable to obesity and other chronic diseases due to additional risk factors associated with poverty. unfortunately the poorest among us have the least access to

healthy foods many times without full service grocery stores and farmers markets in their communities. in my home state of virginia, dorothy mcculloch has been focusing not only on ending childhood hunger and on improving access to virginia's fresh and locally grown agriculture commodities. this dual goal helps children supports our farmers and strengthens local economies. the reality is the negative effects of school nutrition are preventable. we still have a long way to go, but there are positive signs of progress through the implementation of the child nutrition programs. special supplemental nutrition program for women, infants and children, the wic program has consistently proven to be a cost-effective investment that improves the nutrition and health of low income families. the program has led to healthier infants, more nutritionus diets, -- more nutritious diets better health care for children

and subsequently higher academic achievement for students. for some students, their only access to nutritious meals is at school, through the school meal programs and we know the children and teens can consume up to half of their total calories at school. during the average school day in 2011, more than 31 million school children ate school lunch and over 12 million ate school breakfast. it is up to us to ensure our children are fed nutritious meals that can support them as they learn and grow. the first time in over 30 years the healthy hunger free kids act has given the opportunity to make reforms to improve nutrition and hunger safety net for millions of children's. studies show children are now eating more fruits and vegetables and at many schools there has been widespread acceptance of the nutrition programs. as we address the implementation of the law, it is important to remember that the guidelines are evidence-based, not based on politics or corporate bottom lines. they reflect the healthy eating habits most of us in the room try to follow each day. there are a small number of

schools still working to meet the compliance of new standards, but the vast majority of schools, 95%, report they are successfully implementing the healthy new standards. these are powerful tools in creating greater opportunity for at-risk youth and helping them break free of the tragic cycle of poverty. it is critical we ensure they -- work with schools to ensure they have the support they need to be successful. i look forward to hearing about the usda's new technical assistance initiative, team up for progress, team up for success and how the unique challenges of schools are being met. today we have the opportunity to discuss the scope and impact of the new school meals and wic programs and i hope that we will also discuss ways to improve and strengthen them. this reauthorization of the child nutrition program should build on the progress we've made over the last five years. thank you, mr. chairman. i yield back. >> thank you, gentleman. pursuant to committee rules 7-c,

all members are permitted to submit written statements. to be included in the record. without objection, the hearing record will remain open for 14 days to allow such statements and other referenced material referenced during the hearing to be submitted for the official hearing record. i'll now introduce our distinguished witness who probably needs nowhere no introduction, being a cabinet secretary, but just as a reminder, the honorable tom vilsack is the secretary of the united states department of agriculture. secretary vilsack served as secretary of agriculture since 2009. in this role he manages a staff of over 100,000 as he implements agriculture policies including oversight and implementation of federal child nutrition programs. prior to his appointment secretary vilsack served two terms as governor of iowa as well as two terms as a state senator. it's always nice to have somebody from the neighboring state here, mr. secretary. now i ask you please to stand and raise your right hand.

do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth and nothing but the truth? >> i do. >> that you. you may be seated. let the record reflect our witness answered in the affirmative. and they always do. before i recognize you to provide your testimony let me remind you briefly of the lighting system. some hearing rooms have gotten more sophisticated than our old ones. ours are straightforward. we've got the green, yellow and red lights. you can largely ignore those. i've never gavelled down a cabinet secretary for opening remarks that were a little too long, but please be mindful that we have a lot of members who want to ask questions. when we get to the question and answer period, i will do my best to keep my colleagues to the five-minute rule. mr. secretary, you're recognized. mr. chairman, thank you very much. and in the interest of time, perhaps the chair would allow me

to associate myself with the ranking member's remarks and the chairman's remarks relating to the integrity of the program. if you take representative scott's remarks and your remarks on the integrity of the statement, you pretty much have my opening statement. with that, i'll answer questions. >> did we even bother to turn on the green light? mr. secretary, that is outstanding. that does set a record. let me start, if i may -- yeah. put me on the clock. as i mentioned to you briefly that i will give you the chance to talk about the numbers here. i went to visit a school in my district to learn about the school meal program because some of the students had written a letter, signed a petition suggesting that maybe they ought to get out of the program.

so i went to visit them and very, very nice school. students coming through the lunch program with amazing technology. they had a little card and they could put it up there and immediately the cashier saw who they were and if they were on the program. things going pretty well. and i sat down with the four students and the principal and some other adults there, as well. but i found it interesting in the discussion with the students. there was two young women. this is a high school, two young men, one of the young men was getting ready to go on scholarship out to arizona to play football. and i'm not sure how much he weighed. i didn't ask him. well north of 200 pounds. but one of the young women weighed clearly half of that. yet part of their complaint was, look, this system has us trapped here because we have to have the same portions. and that doesn't make any sense

to us, if you're going to play football on scholarship, seems they thought and it seems to me reasonable to me that you ought to have more food. and so what was happening was that because they -- the portions weren't large enough in all cases, they were taking their own money and going and buying food. and it clearly was not the sort of healthy lunch that was being served in the school cafeteria and it was, indeed, a healthy lunch and they didn't have complaints about how the food tasted. they said they liked the broccoli. so i took them at their word and they liked the fruit and so forth. but they certainly were upset about the portions and the fact that they then had to go and buy more food, stop off at a fast food place or something like that, was clearly not what we're trying to get to here. so -- and this was a relatively wealthy school. and these kids probably had the money where they could stop and

buy that food and some students without those resources couldn't do it. so it seems to me that while the students wanted healthy meals but the meals that they were being served didn't meet their needs, and they were so upset about that that they petitioned to drop out of the program. now, of course, the school has agreed to drop out of the program. how can you say, if you are saying, that the program is working as advertised when you have those kinds of problems where you clearly have an issue where football player seems ought to be having a considerably bigger portion than someone half their weight. >> mr. chairman, i think the -- i'd start by explaining that the standards that have been established were based on expert advice and direction from the institute of medicine in terms of what an average sized individual would need at that point in time during the day. it's roughly 25 calories less than the meals that were

previous to the healthy younger kids act. is not that significant in terms of the difference. this is not in fairness, all you can eat at appleby's. this is a school lunch program. and the reality is, based on surveys, the vast majority of students, middle school students, elementary students and high school have accepted and are in favor of these new standards. a recent survey had 70% of students say they like the new program. i don't doubt that you'll find a few folks that have concerns and that's why we've suggested they can bring a snack. there's no reason they can't bring a snack to school. there's a sharing table, opportunities for those who aren't going to eat everything that's on their plate for whatever reason can share with those who want more food. there are vending machines at the school that will provide consistent, smart and healthy snacks.

so there are ways to address this issue without singsly -- essentially rolling back the standards and creating a significant rollback. and i think the reason why i associated myself with representative scott's comments is we are dealing with twin issues here. we're dealing with 17 million youngsters who are food insecure. at the same time, we're dealing with nearly a third of our youngsters who are obese or at risk of being obese. so on balance, if you follow the expert advice, if you provide options and snacks and sharing tables and you see a preponderance of students accepting these standards, i think we are on the right track. so, you know, i'm convinced that we have -- we've also looked at the issue of plate waste, suggesting somehow that folks are throwing food away. the reality is harvard has

looked at this, the red center has looked at this and they found kids are, in fact, consuming more fruits and vegetables. there's no more plate waste than before the passage of the act. >> my time has indeed expired. mr. scott. >> thank you. thank you, mr. secretary. i understand that 95% of the school districts are reporting that they are in compliance with the upgraded standards in the last reauthorization. is that right? >> that's correct, representative, and that's why they are entitled to six cents reimbursement increase. >> and is there any reason to reduce the standards? >> i can't see the reason to reduce the standards. we have provided flexibility, as you well know, in sodium, whole grains and in other aspects of the rule. i think we'll continue to look for opportunities to be flexible, but i don't think you want to roll the standards back. >> and are the standards based on a medical and professional scientific advice? >> they are consistent with the institute of medicine standards.

>> does the program community eligibility where if overwhelming portion of the students are eligible that you can go schoolwide, forget about eligibility and just serve everybody, can you talk about that program a little bit and how it avoids a lot of the administrative costs associated with the program? >> 14,000 schools over 2,000 school districts and 6.4 million children are currently benefiting from the community eligibility program. it essentially says to a school district if you have more than 40% of your youngsters who are directly certified as being taniff eligible or medicaid he eligible, then you are entitled to adopt community eligibility, which allows you to have a student not have to take a form home to be fold out by mom or dad and calculated by the school and aggravated by the school district. it allows the school district to essentially receive reimbursement based on a

mathematical computation, multiplying the number of free and reduced kids by 1.6. that's the amount of resource that the school district gets. school districts have -- about half the school districts eligible for this have adopted it. and i think there are two reasons why we need to press this program. one is it indeed saves money for the administration. roughly $29 a student is saved. secondly, it provides more accurate reads in terms of the number of kids who are actually going to participate in the program. so it reduces error rates and provides greater access. so safe to say saving costs, reducing error rates and greater access. we continue to promote this. one of the issues, frankly, is school districts use the free and reduced lunch calculation to determine their eligibility for title one funding. so i've spoken to secretary duncan about whether or not we could create a similar mathematical formulation that would get over the issue with title one. and i suspect if we did that we

would see even greater participation. >> thank you. have you done any rules and regulation changes for the school breakfast and lunch programs that ensure that more children are participating? >> well, there are more children participating in school breakfast, well over 1 million more students are participating. 300 million more meals are being served this year than previous years. i think one of the greatest things that we've been able to do is reduce the stigma of school breakfast in terms of providing opportunities for meals in the classroom so that kids are not necessarily segregated at the beginning of the school day in the cafeteria so that people can make a judgment about their financial well being. and so based on those kinds of standards and based on those kinds of activities, we're seeing an increase. obviously, we don't have attached to it additional reimbursement rates as we did with the school lunch program.

but we are seeing increased participation and teachers will tell you they are happy to see this because a hungry child is not a child that's ready to learn. >> have you seen any evidence that nutrition programs save money by reducing health care costs, their expenses. >> to the extent that we're dealing with the obesity issue, it's about $14 billion a year in annual health care costs for kids and those will increase when they take the chronic diseases they are suffering from into adulthood. so to the extent we can get a handle on the obesity issue and to the extent we provide proper nutrition on kids living in newer homes, we will see better health outcomes. more immunizations, better cognizant immunizations as a result of the wic program. >> and that reflects reduced costs? >> it obviously does. and the same thing, i think the same argument could be true for the summer feeding program, as well. >> thank the gentleman.

dr. foxx. >> thank you, mr. chairman. and thank you, mr. secretary for being here. i want to associate myself with the comments of the chairman in terms of his comments related to the imposition of rules from washington which impose one size fits all attitude. and i think -- and in my question, i will reflect that. but you said something in your comments in answer to a question that i think illustrates that so well. you said there's no reason why they cannot bring a snack. that is up until now. until such time as perhaps the agricultural department determines that children can't bring snacks. that -- the attitude is you're allowing them to bring snacks. so that the rule making comes from here.

the -- the permission is being given by washington. that ought to be freedom of choice. and the attitude that there's no reason means you haven't declared a rule. but let me ask my question about the competitive foods rule because it goes along with that. you issued a rule in 2013 called the competitive foods rule. you couldn't estimate the costs or the effect on school revenue without any certainty, but you did note that the 247,000 comments which focused on finances, most of them were concerned that the rule would reduce school revenue. additionally, it's estimated school revenue authorities received on average 16% of their revenue from competitive food sales. so how do you determine the rule was responsible action and requirement from this administration? >> well, first of all, let me

clarify my remarks involving snacks if i might. i wasn't suggesting that folks were being allowed to bring snacks. they've always been allowed to bring snacks. there's never been a prohibition about mom or dad allowing a youngster to take a snack to school to munch on. that ought to be clear. if i didn't make that clear, i should have. studies of vending machines providing healthier snacks have indicated there has not been a significant decline in revenue to school districts that have looked at this and studied this. what's interesting to me we provided $94 million at the beginning of this process for school districts to be able to utilize the money to assist them in better implementation. today, now five years after the passage of that act, there's still $24 million of that resource that has not been spent by schools. we have encouraged school districts an states where the money has not been spent to

encourage the utilization of resources if schools are suffering or having difficulty. so it is odd to me that we still have $24 million on the table. hopefully this hearing will allow us to continue to put that information out so people take advantage of those resources. >> you can give me this answer later, but i wonder if you tried in the department of agriculture to put the employees in the department of agriculture on the school food and lunch program for a week or two to see how they respond to it. i think that would be an interesting experiment. but i have a second question. the usda's oig highlighted high rates of improper payment in the national school lunch and breakfast program. they had the lunch program is one of 13 federal high error programs. i know you and the ranking member talked about the integrity of the program. what are you doing to address high error rate, reduced fraud

benefit and make sure the program is serving those most in need. >> there are a few reasons why we have the error rate that we have. there is a certification issue involving parents basically providing information about income that is not necessarily accurate or incomplete. there is an aggregation that takes place at the school district where they basically aggregate all of the information and provide it to the state that sometimes errors are in that process. and there is an error at the cashier's location when a person goes through the line. a couple of things about this error rate. the dollar amount is a little bit suspect. because if you're going through the line and you don't take one item that you're supposed to take, that entire cost of that meal is considered to be in error. so it probably more information needs to be gleaned in terms of what the cost of these errors are. but we've done several things. one, we've provided a series of

professional standards that will, i think, increase the professional standards of the folks at the cashier's tables so they make fewer errors. two, we've begun the process of data mining to determine where we might provide assistance in schools that repeatedly have problems. three, we are pressing community eligibility as well as direct certification because we know, for example the direct certification program there's a significant decline in errors when the direct certification is used. we're also looking at simplifying the application and providing an online application so that we reduce errors in that respect. we're also developing an office of integrity within the school lunch program. but we would have better results, i think if we could receive permission from congress to do more reviews of schools than we currently have. there's a limitation only program of this kind where there's a limitation where we can only look at 3% of schools. if we had an ton to look at more

than 3% i think we would have greater accountability on all three errors. we are seeing reduction on aggregation side because we've been working with states. we have work to do on certification and cashier's side. >> the time has expired. >> thank you very much, mr. chairman. thank you, mr. secretary. let me ask a couple of questions about access maybe speak to some of the current barriers for year-round service that students need and how potentially this year's reauthorization could do a lot to reduce or hopefully eliminate some of those barriers. the healthy hunger-free kids act with very important extended service, community-based organizations year-round, extended weekends holidays. how do we -- how can we go

forward to expand greater access to children and families? >> i think one of the focuses we've had is during the summer months. obviously i think as has been stated earlier, children receive somewhere between a third and two-thirds of their calories at school. we are in the process of trying to figure out how to deal with those gaps. i'm proud of the fact we're serving 23 million more summer meals than we did several years ago but there's still work to be done because only 16% of kids who are eligible for summer meals are participating. so we're looking at several things. one, we're looking at obviously greater partnerships. i was in baltimore yesterday at a library encouraging libraries to potentially look at sites where kids are spending a lot of time during summer months. we're making sure we reach out to schools and take a look at whether or not they might be willing to participate in the seamless school project which